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Ari Berman | The Nation

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Ari Berman

Ari Berman

 On American politics and policy.

Will Texas Get Away With Discriminating Against Voters?

polling location

A sign guides voters to a polling location as they line up to cast their votes in 2012, in Dallas. (AP Photo/Tony Gutierrez)

Imani Clark, Aurica Washington, Crystal Owens and Michelle Bessiake are students at Prairie View A&M and Texas Southern University, two historically black colleges in Texas. They do not have a driver’s license or own a car, and do not possess one of the five forms of government-issued identification required by Texas to vote.

They can no longer vote with their students IDs in Texas, where a handgun permit is a valid voter ID but a student ID is not.

The four students are among the plaintiffs challenging the constitutionality of Texas’s voter ID law in federal court in Corpus Christi this week. The trial before Judge Nelva Gonzales Ramos, an Obama appointee, is expected to last two to three weeks.

In August 2012, a three-judge district court in Washington found that the law discriminated against black and Hispanic voters under Section 5 of the Voting Rights Act. The court called it “the most stringent [voter ID law] in the country.”

But after the Supreme Court’s decision in Shelby County v. Holder freed states like Texas with a long history of voting discrimination from having to approve their voting changes with the federal government, Texas wasted no time in implementing the blocked law. “With today’s decision, the state’s voter ID law will take effect immediately,” Texas Attorney General Greg Abbott announced hours after the court’s ruling. Groups like the Justice Department, NAACP Legal Defense Fund and the Mexican American Legislative Caucus are now challenging the law under Section 2 of the VRA, which remains on the books.

During the first round of court proceedings, Texas admitted that between 600,000 to 800,000 registered voters in the state lacked a government-issued photo ID, with Hispanic voters between 46.5 percent to 120 percent more likely than whites to not have the new voter ID. Those without a voter ID needed to pay for additional documentation to confirm their identities, with the cheapest option being a birth certificate for $22. Attorney General Eric Holder called it a “poll tax.”

Getting a voter ID in Texas isn’t as easy as you’d think. There are no DMV offices in eighty-one of 254 counties in the state, with some voters needing to travel up to 250 miles to obtain a voter ID. Counties with a significant Hispanic population are less likely to have a DMV office, while Hispanic residents in such counties are twice as likely as whites to not have a voter ID. (Hispanics in Texas are also twice as likely as whites to not have a car). So far, Texas has issued only 279 new voter IDs, even though hundreds of thousands of registered voters lack one.

The court based its ruling on three important facts:

(1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty.

“A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote,” wrote Judge David Tatel. “The same is true when a law imposes an implicit fee for the privilege of casting a ballot.”

Those burdened by the law include 92-year-old Ruby Barber of Waco, who has voted in every presidential election since 1944 but could not easily obtain a voter ID because she does not have a driver’s license, birth certificate or marriage license. “I’ve voted all my life, and not to be able to vote—it just breaks my heart,” she said.

During the first test of the law last November, many voters—including a state judge and both candidates for governor—had to sign an affidavit to vote because the names on their IDs did not match their names on the voter registration rolls. Ninety-year-old Speaker of the House Jim Wright was denied a voter ID before his assistant procured a certified copy of his birth certificate.

Texas passed the voter ID law as “emergency” legislation at the beginning of 2011. It’s unclear what emergency the Texas legislature was responding to—since 2000, there has been only one successful conviction for voter impersonation, according to the comprehensive News21 database. (In 2010, Abbott led a controversial armed raid of the offices of a Houston voter registration group, but no charges were ever filed.)

This case has important national significance for a few reasons.

Number one: as mentioned earlier, Texas passed the strictest voter ID law in the country and has done little to ensure that every registered voter will be able to cast a ballot. If the law is approved, it will set a precedent for similarly strict measures to be adopted elsewhere.

Number two: Texas has a significant governor’s race between Abbott and State Senator Wendy Davis in 2014. It is also trending blue in the long term. Texas Republicans believe voter ID will reduce turnout among Democratic-aligned voters. The former political director of the Texas Republican Party argued in 2007 that a voter ID law would add 3 points to the GOP vote.

Number three: Texas is a perfect case study for whether the existing provisions of the VRA can protect voters from discrimination. Since the federal courts have already judged Texas’s law to be discriminatory, any subsequent decision approving the law would show the devastating impact of the Shelby decision. Thus far in 2014, the federal courts have blocked Wisconsin’s voter ID law but did not grant a preliminary injunction against North Carolina’s tough new voting restrictions.

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Already, jurisdictions in Texas, like the city of Pasadena, have changed their voting rules to dilute black and Hispanic representation. “The Justice Department can no longer tell us what to do,” Pasadena Mayor Johnny Isbell said when the city passed a referendum last year eliminating two Hispanic city council seats.

Number four: the Justice Department and civil rights groups are arguing that Texas’s voter ID law was enacted with intentional discrimination and the state should have to approve its voting changes with the federal government for a period of time as a result. This little-used bail-in provision has been described by Travis Crum of Yale Law School as the “secret weapon” of the VRA. But it’s very difficult to prove intentional discrimination and only nine jurisdictions have been bailed-in to the VRA since 1975.

However, a federal court also found in 2012 that Texas’s redistricting maps were “enacted with discriminatory purpose.” Like voter ID, that case is now being tried again under Section 2. “The State of Texas has employed a variety of devices to restrict minority voters’ access to the franchise,” DOJ argues. “In the absence of relief…there is a danger that Texas will continue to violate the Voting Rights Act and the voting guarantees of the Fourteenth and Fifteenth Amendments in the future.”

Texas has lost more Section 5 lawsuits than any other state. If there’s any place in the country that needs to be monitored under the VRA, this is it.

 

Read Next: How North Carolina will determine the future of the Voting Rights Act

North Carolina Becomes the Latest Casualty of the Supreme Court’s Voting Rights Act Decision

Moral March to the Polls

A protester at a "Moral March to the Polls" rally in Winston-Salem on July 7

On Wednesday, August 6, the country celebrated the forty-ninth anniversary of the Voting Rights Act, the most impactful civil rights law ever passed by Congress. Two days later, a federal judge in North Carolina denied a preliminary injunction to block key provisions of the state’s new voting law, widely described as the most onerous in the country.

North Carolina’s new voting restrictions will now be in effect for the 2014 midterms and beyond, pending a full trial in July 2015, a month before the fiftieth anniversary of the VRA. The federal government and plaintiffs including the North Carolina NAACP and the League of Women Voters argued during a hearing last month that three important parts of the law—a reduction in early voting from seventeen to ten days, the elimination of same-day registration during the early voting period, and a prohibition on counting provisional ballots cast in the wrong precinct—disproportionally burdened African-American voters in violation of Section 2 of the VRA and should be enjoined before the 2014 election.

As evidence, plaintiffs showed that in recent elections African-Americans were twice as likely to vote early, use same-day registration and vote out-of-precinct. In 2012, for example, 300,000 African-Americans voted during the week of early voting eliminated by the state, 30,000 used same-day registration and 2,500 cast out-of-precinct ballots. Overall, 70 percent of blacks voted early and African-Americans made up 42 percent of new same-day registrants.

Judge Thomas Schroeder of the Middle District of North Carolina disagreed. “Plaintiffs’ complaints state plausible claims upon which relief can be granted and should be permitted to proceed in the litigation,” he wrote in a 125-page opinion. “However, a preliminary injunction is an extraordinary remedy to be granted in this circuit only upon a ‘clear showing’ of entitlement…. Even assuming Plaintiffs are likely to succeed on the merits, they have not demonstrated they are likely to suffer irreparable harm—a necessary prerequisite for preliminary relief—before trial in the absence of an injunction.” 

Basically, Schroeder, a George W. Bush appointee, said that even if African-American voters face burdens as a result of the new restrictions, they will still be able to openly participate in the electoral process and will not face “ an inequality of opportunity to vote.”

It’s important to note that this is just a preliminary opinion and the outcome was not surprising. The most contentious aspect of the law—the requirement that voters produce specifics forms of government-issued ID to cast a ballot—doesn’t go into effect until 2016 and was not the focus of the injunction pleadings. In April, a federal judge in Wisconsin blocked the state’s voter ID law under Section 2 of the VRA following a full trial.

As I wrote following the four-day hearing in Winston-Salem last month, it’s very possible the plaintiffs could lose the preliminary injunction hearing and win the trial in July 2015, when they’ll have more time, more expertise and more evidence, like voter ID, to draw on. It’s tougher for plaintiffs to win a preliminary injunction than a full trial, especially in an off-year election when voter turnout is lower and restrictions on voting are perceived as less costly.

That said, this is a significant opinion, and one that shows why Section 2 of the Voting Rights Act is no substitute for Section 5. Indeed, North Carolina is the perfect case study for what happened after the Supreme Court gutted the Voting Rights Act. (If the ruling leads to diminished voter turnout, particularly among African-Americans and young voters, it could also swing the close Senate race between Democrat Kay Hagan and Republican Thom Tillis, which could very well determine which party controls the Senate next year.)

Let’s review the legislative history. In April 2013, the North Carolina House passed a sixteen-page voter ID bill that required a government-issued photo ID to cast a ballot, but also accepted student IDs from state universities and public employee IDs. The bill languished in the North Carolina Senate until the Supreme Court overturned Section 4 of the VRA, freeing states like North Carolina with the worst history of voting discrimination from having to clear their voting changes with the federal government under Section 5.

Within a month of the Shelby County v. Holder decision, the Senate introduced a fifty-seven-page “monster” (so dubbed by Democracy NC) that required strict voter ID (no student IDs, no public employees IDs allowed), cut early voting, eliminated same-day registration, repealed out-of-precinct voting, axed pre-registration for high school students, ended public financing of judicial elections, increased the number of poll challengers and even got rid of Citizen Awareness Month, which urged North Carolinians to register to vote.

“It was a 90 percent different bill,” testified Representative Rick Glazier, a Democrat from Cumberland County. “It was an ambush on the people of North Carolina.”

The Senate took only two days to debate the new bill, which repealed or curtailed nearly every reform that encouraged people to vote in the state. The House passed the Senate’s version in a matter of hours, with no amendments offered or public input. “It was, bar none, the worst legislative process I’ve ever been through,” Glazier said. “If you were writing a textbook on legislation, this was a textbook example of how not do it.”

Not only did North Carolina no longer have to approve its voting changes with the federal government thanks to the Supreme Court’s decision, the burden of proof shifted from the state to the voters most impacted by the law, as did the legal standard needed to show discrimination under the VRA. “You have the burden of showing clear evidence,” Judge Schroeder reminded the plaintiffs several times during the hearing.

Under Section 5, North Carolina could not implement any voting change that left minority voters worse off. That was clearly the case with regards to the new voting law, since African-Americans are 23 percent of registered voters in North Carolina, but made up 29 percent of early voters in 2012, 34 percent of those without state-issued ID and 41 percent of those who used same-day registration.

But under Section 2, plaintiffs have to show that the “totality of circumstances” leaves a minority group with “less opportunity than other members of the electorate to participate in the political process.” The simplicity of Section 5 has been replaced by the complexity of Section 2. What would have been a slam-dunk case for the government and civil rights groups is now a long slog, with a very uncertain outcome.

As Judge Schroeder noted in his opinion, “Vote-denial claims under Section 2 have thus far been relatively rare, perhaps due in part to the fact that since 1965, many jurisdictions—including many North Carolina counties—were under federal control and barred from enacting any new voting procedure without first obtaining ‘pre-clearance’ under Section 5 of the VRA from the DOJ or the United States District Court for the District of Columbia.”

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“If this ruling stands,” wrote Rick Hasen, “it shows that Section 2 and the Constitution’s Equal Protection Clause are poor substitutes in protecting voting rights for Section 5 of the Voting Rights Act.”

Members of Congress introduced legislation in January to resurrect Section 5. The Voting Rights Amendment Act of 2014 has 171 co-sponsors in the House, but no Republican co-sponsor in the Senate. There is little urgency in Congress to pass it. In a perfect world, this week’s North Carolina ruling would change that.

 

Read Next: North Carolina will determine the future of the Voting Rights Act. 

North Carolina Will Determine the Future of the Voting Rights Act

Rosanell Eaton

93-year-old Rosanell Eaton heading into federal court (photo by Jennifer Farmer, Advancement Project)

Winston-Salem—In 1940, 19-year-old Rosanell Eaton took a two-hour mule ride to the Franklin County courthouse in eastern North Carolina to register to vote. The three white male registrars told her to stand up straight, with her arms at her side, look straight ahead and recite the preamble to the Constitution word-for-word from memory. Eaton did so, becoming one of the few blacks to pass a literacy test and make it on the voting rolls in the Jim Crow era.

Eaton, a granddaughter of a slave, is one of the unsung heroes of the civil rights movement. She’s devoted her life to expanding the franchise, personally registering 4,000–5,000 new voters before losing count. “My forefathers didn’t have the opportunity to register or vote,” she said. “It is my intention to help people reach that point when they could do something.”

Now, as a result of North Carolina’s new voting restrictions—widely regarded as the most onerous in the country—the 93-year-old activist could be disenfranchised by the state’s voter ID requirement because the name on her driver’s license does not match the name on her voter registration card.

Eaton testified in federal court in Winston-Salem this week against North Carolina’s voting law, as part of a challenge brought by the Justice Department and civil rights groups to enjoin key provisions before the 2014 election under Section 2 of the Voting Rights Act. “Voting should be free and accessible to everyone,” she told Judge Thomas Schroeder of the Middle District Court of North Carolina.

Eaton was always the first one in the courtroom, looking resplendent in a fashionable pantsuit and matching hat. Her presence and testimony was a reminder of the long struggle to win the right to vote and the serious consequences of restricting that right today.

Eleven witnesses—a mixture of civil rights activists, legislators and election experts—testified against the law, known as House Bill 589, over the course of four days. I spent the week in court alongside Eaton. Here are my ten takeaways from the hearing:

1. The law disproportionately burdens African-American voters.

The plaintiffs, including DOJ, the North Carolina NAACP and the League of Women Voters, focused on three specific provisions of the law—the reduction of early voting from seventeen days to ten days, the elimination of same-day registration during the early voting period and the prohibition on counting provisional ballots cast in the right county but wrong precinct. In recent elections, African-Americans were twice as likely to vote early, use same-day registration and vote out-of-precinct.

In 2012, for example, 300,000 African-Americans voted during the week of early voting eliminated by the state, 30,000 used same-day registration and 2,500 cast out-of-precinct ballots. Overall, 70 percent of blacks voted early and African-Americans made up 42 percent of new same-day registrants.

“It is as if House Bill 589 were designed to deter the very practices that encourage turnout among blacks,” testified expert witness Barry Burden, a professor of political science at the University of Wisconsin-Madison.

2. The case is not about voter ID (yet).

The most controversial provision of the new law doesn’t go into effect until 2016 and thus wasn’t discussed much in court. But the state is doing a test run in 2014, where poll workers will ask for photo ID but voters don’t have to show it. Because of the potential for confusion, the North Carolina NAACP asked Judge Schroeder to enjoin the test run. Expect to hear a lot more about voter ID when the case goes to a full trial in July 2015.

3. Voter fraud is not a problem in North Carolina.

During the 2004 and 2008 elections, there was 1 case of voter impersonation out of 7.8 million votes cast. “I am not aware of specific instances of voter impersonation,” North Carolina elections director Kim Strach said in her videotaped deposition, which was shown in court.

The state presented no tangible evidence of voter fraud to justify the new restrictions. “There is no evidence we had problems with these enhanced forms of participation,” Senator Dan Blue, the Democratic minority leader, testified. (Ironically, the law does nothing to restrict absentee voting, where the potential for fraud is greatest.)

Lawyers for the state seemed to be arguing, in the vein of Donald Rumsfeld, that the absence of evidence is not evidence of absence. “If you don’t look for voter fraud, how can you find it?” testified Phil Strach (husband of Kim Strach), the former general counsel for the North Carolina GOP. (If a tree falls in the forest…)

Chris Coates, the former head of the Voting Section in the Bush Justice Department, who represented Judicial Watch, said the state was under no obligation to produce instances of fraud as a rationale for the law, despite the rhetoric of the GOP legislators who passed the bill. “If the interest trying to be achieved is combatting voter fraud, there does not have to be evidence that fraud has been committed in the state,” he said.

4. The Supreme Court’s Shelby County decision transformed the legal and legislative landscape on voting rights.

A month after the Supreme Court’s decision overturning Section 4 of the VRA, the North Carolina Senate took a sixteen-page bill passed by the House, which dealt exclusively with voter ID, and transformed it into a fifty-seven-page voter suppression behemoth.

“It was a 90 percent different bill,” testified Representative Rick Glazier, a Democrat from Cumberland County. “It was an ambush on the people of North Carolina.”

The Senate took only two days to debate the new bill, which repealed or curtailed nearly every reform that encouraged people to vote in the state. The House passed the Senate’s version in a matter of hours, with no amendments offered or public input. “It was, bar none, the worst legislative process I’ve ever been through,” Glazier said. “If you were writing a textbook on legislation, this was a textbook example of how not do it.”

5. Section 2 is no substitute for Section 5.

Not only did North Carolina not have to approve its voting changes with the federal government thanks to the Supreme Court’s decision, the burden of proof shifted from the state to the voters most impacted by the law, as did the legal standard needed to show discrimination under the VRA. “You have the burden of showing clear evidence,” Judge Schroeder reminded the plaintiffs several times.

Under Section 5, North Carolina could not implement any voting change that left minority voters worse off. But under Section 2, plaintiffs have to show that the “totality of circumstances” leaves a minority group with “less opportunity than other members of the electorate to participate in the political process.” The simplicity of Section 5 has been replaced by the complexity of Section 2. What would have been a slam-dunk case for the government and civil rights groups is now a long slog.

“As a practical matter, African-Americans will have less opportunity than white voters to register, cast a ballot and have that ballot counted,” DOJ attorney Bert Russ argued.

North Carolina Deputy Attorney General Alexander Peters countered that voters had no constitutional right to expanded voting opportunities like early voting. “The fact that they were good policies doesn’t mean they are entitled to them.”

“We’re not contending that Section 2 requires the adoption of early voting, same-day registration or the counting of out-of-precinct ballots,” Russ responded. “But in cases where these reforms were already adopted, where black voters disproportionately relied on them…when the state chooses to eliminate them without good reason, we’re likely to prevail on the merits.”

North Carolina is the first post-Shelby challenge to new forms of vote denial and abridgement other than voter ID (a judge in Wisconsin struck down a voter ID law under Section 2 for the first time in May). There are few relevant precedents in this area, which makes the outcome more uncertain.

6. North Carolina history cannot be ignored.

In 1965, black registration lagged fifty points behind white registration in the state. Decades after the passage of the VRA, the gap narrowed but remained significant. That changed starting in 2000, with the adoption by the legislature of early voting (2000), the counting of out-of-precinct provisional ballots (2005) and same-day registration (2007). North Carolina became one of the most progressive states in the country with regard to voting rights. As a consequence, black turnout increased 65 percent from 2000 to 2012—in 2008 and 2012, African-Americans registered and voted at a higher rate than whites for the first time in state history.

A year later the legislature repealed the reforms that boosted black participation. “In one bill, they obliterated what many of us worked on for twenty to thirty years to increase voter participation,” Blue testified.

MIT political scientist Charles Stewart, an expert witness for DOJ, said the elimination of same-day registration will reduce black participation by 3 percent—a significant number in a state known for close elections, where Obama won by 14,000 votes in 2008.

In 1996, North Carolina ranked forty-third nationally in voter turnout. By 2012, that number had jumped to eleventh. Now North Carolina is poised to tumble downward again. “Based on my experiences, you will have angry voters, you will have long lines, people will leave without voting,” testified Gary Bartlett, the head of the state board of elections from 1993 to 2013.

7. This is not just a black-versus-white issue.

“Young voters are uniquely targeted by this law,” argued Democratic super-lawyer Marc Elias, on behalf of a group of student voters. HB 589 ended pre-registration for 16- and 17-year-olds, and eliminated state university IDs as an acceptable voter ID. (You can enter a federal courthouse in North Carolina with a state university ID, but you won’t be able to vote with one in 2016.) In addition, young voters were 8.9 percent of the electorate in 2012, but 25 percent of same-day registrants. Elias is making the novel argument that the abridgement of young voter participation violates the Twenty-sixth Amendment, which lowered the voting age from 21 to 18. Judge Schroeder seemed skeptical of this argument.

Blacks and students weren’t the only ones from benefitting from the state’s voting reforms. Dale Ho of the ACLU noted that in 2010, 200,000 North Carolinians voted early, 27,000 used same-day registration and 5,000 cast out-of-precinct provisional ballots.

8. As goes North Carolina, so goes the nation.

Control of the US Senate may hinge on the outcome of the Senate race between Kay Hagan and Thom Tillis in North Carolina. A drop in voter turnout because of the voting restrictions could swing the election to Tillis and the Senate to the GOP.

“If the court doesn’t grant an injunction, there will be African-Americans who won’t be able to use same-day registration, who won’t have their provisional ballots counted, who won’t be able to get to early voting or will face obstacles if they do,” Russ argued. “Even though the problem will be magnified in a presidential election, there will be problems in November.”

On a more fundamental level, North Carolina brazenly took advantage of the Shelby decision to pass the country’s most sweeping package of voting restrictions since 1965. If the state gets away with it, expect other states to follow suit.

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9. The voting restrictions could lead to a voter backlash.

In 2012, we saw that efforts to restrict the right to vote in states like Ohio led to higher voter turnout among targeted groups. While I’m somewhat skeptical of the “voter suppression leads to higher voter turnout” theory, the Moral Monday movement in North Carolina has done a superb job of organizing voter discontent against the GOP legislature.

On the fiftieth anniversary of Freedom Summer, the North Carolina NAACP is placing fifty young organizers in fifty counties with a goal of registering 50,000 new voters. “How many of you are going to leave here and remember the blood of the martyrs?” the Rev. William Barber of the North Carolina NAACP asked at a “Moral March to the Polls” rally in Winston-Salem after the first day of court hearings. Hundreds of hands went up.

10. This is just the beginning of the legal battle.

It’s tougher for plaintiffs to win a preliminary injunction than a full trial, especially in an off-year election when voter turnout is lower and restrictions on voting are perceived as less costly. “I’m not here to decide the ultimate merits of the case,” Schroeder said. “The question is the urgency of the injunction…. What is the irreparable harm before November?”

It’s very possible the plaintiffs could lose the preliminary injunction hearing and win the trial in July 2015, when they’ll have more time, more expertise and more evidence, like voter ID, to draw on.

As for the judge, Schroeder, a George W. Bush appointee, is regarded as one of the smartest and most conservative judges on the Middle District of North Carolina. He asked the plaintiffs a lot of questions about the standard he should use to examine the evidence and the harms to prospective voters in 2014. He seemed to grasp the significance of the case and struck me as tough but fair. He’s expected to issue a ruling sometime in the next month.

 

Read Next: Ari Berman on why the Voting Rights Act is needed now more than ever

North Carolina’s ‘Monster’ Voting Law Challenged in Federal Court

North Carolina NAACP Moral Monday

Rev. William Barber of the North Carolina NAACP speaks at a “Moral March to the Polls” rally in downtown Winston-Salem. Photo by Rob Stephens.

Winston-SalemIn March 1965, Carolyn Coleman, a young activist with the Alabama NAACP, marched to Montgomery in support of the Voting Rights Act.

After the passage of the VRA, Coleman spent a year registering voters in Mississippi, where her friend Wharlest Jackson, an NAACP leader in Natchez, was killed in early February 1967 by a car bomb after receiving a promotion at the local tire plant. A year later, Coleman was in Memphis organizing striking sanitation workers when Martin Luther King Jr. was assassinated.

Coleman devoted her life to expanding the franchise for the previously disenfranchised, serving as president of the North Carolina NAACP and Southern voter education director for the national NAACP. For the past twelve years, she’s been a county commissioner in Greensboro’s Guilford County.

Nearly fifty years after marching for voting rights in Alabama, Coleman testified in federal court today in Winston-Salem against North Carolina’s new voting restrictions, which have been described as the most onerous in the nation. The law mandates strict voter ID, cuts early voting by a week and eliminates same-day registration, among many other things. After the bill’s passage, “I was devastated,” Coleman testified. “I felt like I was living life over again. Everything that I worked for for the last fifty years was being lost.”

The federal government and civil rights groups, including the ACLU and the North Carolina NAACP, asked Judge Thomas Schroeder, a George W. Bush appointee for the Middle District of North Carolina, to enjoin key provisions of the law before the 2014 midterms under Section 2 of the VRA. They’re specifically targeting the cuts to early voting, the elimination of same-day registration during the early voting period and the prohibition on counting provisional ballots accidentally cast in the wrong precinct. (The new voter ID law, unlike the above provisions, doesn’t go into effect until 2016, although the state is doing a “test run” in 2014 where poll workers can ask for photo ID although voters don’t have to provide it.) The hearing is expected to last until later in the week, with a decision in the next month or so.

“These provisions have the purpose and result of denying and abridging the right to vote for African-Americans,” argued DOJ attorney Catherine Meza. The plaintiffs say the new restrictions disadvantage minority voters at a greater rate than white voters, in violation of Section 2’s ban on racial discrimination in voting.

Consider this data, via the DOJ’s brief:

Seventy percent of African-Americans voted early in 2012, compared to 51 percent of whites. African-Americans were also more likely to vote early during the now-eliminated first week of early voting, when 900,000 North Carolinians cast their ballots—35 percent of the total vote in 2012.

Black voters were over 35 percent more likely than white voters to register using same-day registration.

And black voters were twice as likely to cast an out-of-precinct provisional ballot as white voters.

According to expert witness Charles Stewart, a political scientist at MIT, if the law had been in effect in 2012, “over 30,000 African-Americans who registered during the same-day registration period would have been unable to register during that period, almost 300,000 [black] early voters would have been shoehorned into more congested early voting and Election Day voting sites, and at least 2,000 African-American voters would have had their out-of-precinct votes left uncounted.”

North Carolina officials responded that the voting changes weren’t a big deal. The new law “puts North Carolina in the mainstream of other states with regard to election laws,” argued Butch Bowers, a South Carolina—based lawyer representing North Carolina Governor Pat McCrory. Bowers’s statement implicitly suggested that there was something extreme about adopting election procedures that lead to higher voter turnout.

Indeed, the new voting law repealed or curtailed nearly every reform passed by the state in the past two decades that encouraged more people to vote. In 1996, North Carolina ranked forty-third nationally in voter turnout. By 2012, thanks to measures like same-day registration and expanded early voting, North Carolina ranked eleventh.

In March 1965, when LBJ introduced the VRA, 46.8 percent of black North Carolinians were registered to vote compared to 96.8 percent of whites. But in 2008 and 2012, for the first time in state history, black turnout exceeded white turnout. The legislature “targeted the very reforms that expanded voting opportunities for African-Americans,” argued DOJ attorney Meza.

North Carolina is the perfect case study for what happened after the Supreme Court gutted the Voting Rights Act.

In April 2013, the North Carolina House passed a sixteen-page voter ID bill that required a government-issued photo ID to cast a ballot, but also accepted student IDs from state universities and public employee IDs. The bill languished in the North Carolina Senate until the Supreme Court overturned Section 4 of the VRA, freeing states like North Carolina from having to clear their voting changes with the federal government.

Within a month of the Shelby County v. Holder decision, the Senate introduced a fifty-seven-page “monster” (so dubbed by Democracy NC) that required strict voter ID (no student IDs, no public employees IDs allowed), cut early voting, eliminated same-day registration, repealed out-of-precinct voting, axed pre-registration for high school students, ended public financing of judicial elections, increased the number of poll challengers and even got rid of Citizen Awareness Month, which encouraged North Carolinians to register to vote. The bill passed in two days, with no public input. Rev. William Barber, president of the North Carolina NAACP, calls it “the greatest attack on voting rights since Jim Crow.”

The law likely would’ve never been introduced by the legislature—let alone cleared by the federal government, since the burden of proof would have been on the state to show an absence of voting discrimination—if the Supreme Court had preserved Section 4.

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Instead, under Section 2, the burden of proof is on the plaintiffs and the law is in effect unless Judge Schroeder grants a preliminary injunction. (There will be a full trial on the constitutionality of the law in July 2015.) We’re in uncharted territory. Section 2 has heretofore been used mainly to challenge discriminatory election systems or redistricting plans, not block recent vote denial efforts like cutting early voting or eliminating same-day registration.

After the hearing, eight hundred North Carolinians gathered in downtown Winston-Salem for a “Moral March to the Polls” event protesting the law. “I know it’s hot out here,” Barber told the crowd. “But it’s going to be hotter if you let them take our vote away.”

 

Read Next: Katrina vanden Heuvel on why economic inequality is not an act of God. 

Where Are the GOP Supporters of Voting Rights?

Thad Cochran, John McCain and Roger Wicker

Republican Senators Thad Cochran, John McCain and Roger Wicker at a Cochran for Senate rally on Monday, June 23, 2014. (AP/Rogelio V. Solis)

Last night, Mississippi Senator Thad Cochran narrowly defeated Tea Party challenger Chris McDaniel, in part by courting black voters. “Voting rights has been an issue of great importance in Mississippi,” Cochran said yesterday.

Black turnout increased significantly in yesterday’s runoff election, which helped Cochran win by 6,000 votes. “In Mississippi’s twenty-four counties with a majority black population, turnout increased an average of 40 percent over the primary,” reported The Washington Post.

In 2006, Cochran was one of ninety-eight Senators who voted unanimously to reauthorize the temporary provisions of the Voting Rights Act for another twenty-five years. But last year, Cochran applauded the Supreme Court’s decision in Shelby County v. Holder invalidating Section 4 of the VRA, which freed states like Mississippi, with the worst history of voting discrimination, from having to approve their voting changes with the federal government under Section 5 of the act.

“I think our state can move forward and continue to ensure that our democratic processes are open and fair for all without being subject to excessive scrutiny by the Justice Department,” Cochran said.

Cochran was, in effect, celebrating a decision gutting a law that he supported just a few years earlier.

Today, on the first anniversary of the Shelby decision, the Senate Judiciary Committee held the first congressional hearing on the Voting Rights Amendment Act of 2014. Six months after its introduction in January, the new legislation to update the VRA has garnered modest bipartisan support in the House, thanks to former House Judiciary Committee Chairman Jim Sensenbrenner (R-WI), but no GOP co-sponsors in the Senate. There are nineteen Republican Senators still serving who voted for the VRA in 2006, but none have stepped forward to sponsor the new bill.

Today’s hearing illustrated the new partisan divide when it comes to voting rights. Democrats on the Judiciary Committee and three civil rights advocates who testified—Texas State Senator Sylvia Garcia, Georgia NAACP president Francys Johnson and NAACP Legal Defense Fund President Sherrilyn Ifill—unanimously supported the modest VRA fix. “If the Voting Rights Act is not modernized, you are effectively ending the Second Reconstruction of the United States,” Johnson said.

Republicans on the Judiciary Committee and two critics of the VRA who testified—GOP lawyer Michael Carvin and Abigail Thernstrom of the American Enterprise Institute—unanimously opposed the legislation. “The decision in Shelby County was absolutely right,” Thernstrom said. “The statute had become a period piece.”

GOP senators and conservative witnesses maintained that Section 2 of the VRA is an adequate replacement for Section 5. Section 2, unlike Section 5, applies nationwide, but puts the burden of proof on plaintiffs to challenge a voting change, usually requiring lengthy litigation. Wisconsin’s voter ID law was blocked under Section 2, but the statute hasn’t been used much to challenge these new types of voting restrictions.

Civil rights advocates argued that Section 2 is no substitute for Section 5. “We reject the notion that the right to vote should be premised on a voter’s ability to find a lawyer and file a lawsuit,” Ifill said.

North Carolina, which two months after the Shelby decision passed the country’s toughest package of voting restrictions, is a good case study for the difference between Sections 2 and 5. As I explained last year:

Under Section 5 of the VRA—which SCOTUS paralyzed by invalidating the states covered under Section 4—North Carolina would have had to prove to the Justice Department or a three-judge court in Washington that its new law was not discriminatory. The burden of proof would have been on the state and the law would have been frozen until DOJ or the courts weighed in. Given the clear evidence of disparate racial impact in this case—African-Americans are 23 percent of registered voters in the state, but made up 29 percent of early voters in 2012, 34 percent of those without state-issued ID and 41 percent of those who used same-day registration—the law would have almost certainly been rejected.

Instead, voting rights groups had to sue North Carolina under Section 2 of the VRA, which applies nationwide but is much more cumbersome than Section 5. Now the burden of proof is on the plaintiffs to show evidence of discrimination and the law is in effect until the courts block it. Unless a federal judge in Winston-Salem grants a preliminary injunction in the summer of 2014, the new restrictions will be in place during the 2014 midterm elections (except for voter ID, which goes into effect in 2016). Those who have been discriminated against will have no recourse until after the election has been decided, when there’s a full trial in 2015, on the fiftieth anniversary of the VRA.

Texas, which has implemented a voter ID law found to be discriminatory by the federal courts under Section 5, is another glaring example of modern-day voting discrimination. Texas State Senator Garcia testified about Pasadena, Texas, which she represents.

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In November 2013, voters in Pasadena—a city of 150,000 near Houston where Hispanics make up a third of the vote— narrowly backed a referendum changing how districts are drawn in the city. As SCOTUSblog reported, there were previously eight city council districts in Pasadena. But the amendment shrunk the number of districts to six, eliminating two predominantly Hispanic districts, while creating two citywide “at-large” seats that will be decided by the town’s white majority. It’s an example of the type of discriminatory voting change that would’ve likely been blocked by Section 5 of the VRA, but is now in effect as a result of the Shelby decision. “The Justice Department can no longer tell us what to do,” said Pasadena Mayor Johnny Isbell.

The Voting Rights Act has always enjoyed strong bipartisan support. But since Barack Obama’s election, GOP-controlled states have embarked on the most significant effort to restrict access to the ballot since Reconstruction—passing new voting restrictions in twenty-two states since 2010—and the bipartisan consensus for the VRA in Congress has collapsed.

As long as support for the VRA remains divided along partisan lines, there’s no chance that a new fix for the law will pass. As Rick Hasen first suggested, Senator Cochran would be a good candidate to step up and break the congressional logjam. Wrote The New Republic’s Alec MacGillis: “Is there any more fitting way for Thad Cochran to express recognition of the role that African-American voters played in his survival—in the face of threats of voter intimidation from his Republican opponent—than to guarantee that black voters in Mississippi and elsewhere are unencumbered in their access to the polls?”

 

Read Next: Ari Berman on why the Voting Rights Act is needed now more than ever.

Fifty Years After Freedom Summer, the Voting Rights Act Is Needed More Than Ever

Fifty years ago, Andrew Goodman, a 20-year-old anthropology major at Queens College, went down to Mississippi for Freedom Summer. His first stop was Philadelphia, Mississippi, where he and Mickey Schwerner, a 24-year-old graduate student in social work at Columbia University, and James Chaney, a 21-year-old volunteer with the Congress for Racial Equality from Meridian, Mississippi, were sent to investigate a church burning. Schwerner and Chaney had spoken at Mount Zion Methodist Church over Memorial Day, urging local blacks to register to vote.

In 1964, only 6.7 percent of African-Americans were registered in Mississippi and not a single one in Philadelphia’s Neshoba County. The fight for voting rights was the reason Goodman traveled to Mississippi. “He just thought it was unfair that an American citizen of voting age was restrained and stopped from voting,” said his younger brother, David.

On June 21, 1964, the young civil rights activists were arrested by the Neshoba County police and then abducted by the Klan. Their bodies were found forty-four days later in an earthen dam. Goodman and Schwerner, both white, had been shot once. Chaney, who was African-American, had been mutilated beyond recognition. Martin Popper, the attorney for the Goodman family, called it “the first interracial lynching in the history of the United States.”

The murders of Goodman, Chaney and Schwerner were the starkest example of the brutality the Freedom Summer volunteers encountered from local whites. Freedom Summer “produced almost as many acts of violence by local whites as it did black voters,” wrote historian David Garrow. Mississippi didn’t change until Lyndon Johnson signed the Voting Rights Act on August 6, 1965. “A lot of people lost their lives getting that Voting Rights Act into place,” said David Goodman.

The legislation eliminated the literacy tests and poll taxes that for so long prevented blacks from registering to vote in Mississippi and other Southern states, and made sure those states didn’t adopt new voter suppression tactics in the future. The VRA transformed Mississippi and the rest of the country. Today, the Magnolia State has more black elected officials than any other state.

The fiftieth anniversary of Freedom Summer happens to coincide with the first anniversary of the Supreme Court’s decision in Shelby County v. Holder, where the Supreme Court’s conservative majority invalidated Section 4 of the VRA on June 25, 2013. As a result, states like Mississippi, with the worst history of voting discrimination, no longer have to clear their voting changes with the federal government.

Section 4 provided the formula for covering states that had to submit their voting changes under Section 5 of the VRA (known as “preclearance”). Chief Justice John Roberts struck down Section 4 for two reasons: it was based on outdated data from the 1960s and 1970s, he argued, and violated what he called the “fundamental principle of equal sovereignty” among states. Though Roberts conceded “voting discrimination still exists; no one doubts that,” he stated that the “extraordinary measures” of the VRA were no longer justified.

Think voting discrimination is largely a thing of the past?

Take a look at this map, courtesy of the Brennan Center for Justice:

And this map:

And this map, via the Leadership Conference on Civil Rights:

Some relevant facts Roberts neglected to mention:

Since the 2010 election, twenty-two states have passed new voting restrictions, according to the Brennan Center. This includes requiring strict voter ID to cast a ballot, cutting early voting, making it harder to register to vote and rescinding voting rights for non-violent ex-felons. New restrictions will be in place for the first time in fifteen states in the 2014 election. All across the country, we’re seeing the most significant push to restrict voting rights since Reconstruction.

Partisanship is a strong motivating factor for the voting changes—GOP legislatures or governors enacted eighteen of the twenty-two new restrictions.

So is race. According to the Brennan Center: “Of the 11 states with the highest African-American turnout in 2008, 7 have new restrictions in place. Of the 12 states with the largest Hispanic population growth between 2000 and 2010, 9 passed laws making it harder to vote.”

These disturbing facts suggest that the strong protections of the VRA are still needed. Nearly two-thirds of the states previously covered under Section 5 of the VRA, nine of fifteen, passed new voting restrictions since 2010.

Take another look at the maps above. You’ll see that the South continues to restrict voting rights more aggressively than anywhere else in the country. What has changed in recent years isn’t the South but the fact that states like Kansas and Ohio and Wisconsin and Pennsylvania have adopted Southern-bred voter suppression tactics. Just when the VRA should’ve been expanded to cover the surprisingly wide scope of 21st century voting discrimination, the Supreme Court instead gutted the law.

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” Justice Ginsburg wrote in her dissent. The central irony of the decision is that it was pouring when the Supreme Court removed the umbrella designed to protect voters from discrimination.

What happened next was entirely predictable. Within two hours of the decision, Texas implemented a voter ID law judged to be discriminatory by the federal courts. Two months later, North Carolina passed the harshest package of voting restrictions in the country.

Local jurisdictions previously covered by the law have responded in kind. Reports MSNBC’s Zack Roth:

Georgia lawmakers changed the date of city council elections in Augusta from November to July, a time when black turnout is traditionally far lower—a tactic that goes back to Jim Crow days. In Pasadena, Texas, voters approved a new “at-large” scheme for electing council members that made it much harder for Hispanic candidates to win office. A similar scheme, adopted by a school district in Beaumont, Texas, was blocked by the Justice Department under Section 5, but went into effect this year.

Since the Shelby decision, ten jurisdictions in seven states have enacted potentially discriminatory new voting changes that would’ve been subject to review under Section 5, according to the Leadership Conference.

A good case study is Decatur, Alabama, a city of 55,000 in the northern part of the state. For most of the twentieth century, whites controlled every important position in Decatur, which is 20 percent black. The first black city councilman wasn’t elected until 1988, as a result of a landmark lawsuit under the VRA, when the city shifted from citywide at-large elections to five single-member districts, including one majority-black district, for the city council.

In 2010, Decatur passed a referendum adopting a council-manager form of government, with two at-large districts for the city council and three single-member ones. The catch was that the new plan would eliminate the city’s only majority-black district. In 2011, the city submitted the change for federal approval under Section 5. After DOJ requested more information, Decatur withdrew its submission. The new plan seemed dead. But following the Shelby decision, the new system is set to go into effect. (It’s now being challenged in court by voting rights lawyers in Alabama.) As a result, the city’s lone black councilman, Billy Jackson, may soon be out of a job.

Despite these developments, new legislation to update Section 4 is stalled in Congress. Few Republicans—including the fifty-seven House Republicans who voted for the VRA’s overwhelming reauthorization in 2006 and are still serving—are willing to support it. Eric Cantor, whose backing would have been critical to the bill’s passage, will soon be leaving Congress.

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Cantor was one of three Republicans who traveled with John Lewis and David Goodman on a congressional pilgrimage to Mississippi in March to commemorate the fiftieth anniversary of Freedom Summer. “He was very moved by the story of Goodman, Chaney and Schwerner,” Goodman said. Cantor told Goodman: “This voting issue is not a partisan issue.” It didn’t used to be, but now it is.

On Wednesday, the Senate Judiciary Committee will hold a hearing on the Voting Rights Amendment Act of 2014. No hearing is currently scheduled in the House. House Judiciary Chairman Bob Goodlatte is said to believe that a remedy for the Supreme Court’s decision is not needed. Past history and present circumstances suggest otherwise.

 

Read Next: Ari Berman on how Eric Cantor's defeat is bad news for the Voting Rights Act

Eric Cantor’s Defeat Is Bad News for the Voting Rights Act

Voting rights

Marchers carry signs to mark the fiftieth anniversary of the March on Washington, urging action on voting rights. (Reuters/James Lawler Duggan)

Two days ago, on KCRW’s To The Point, I was asked why so few Republicans are supporting a new fix for the Voting Rights Act when the 2006 reauthorization of the VRA passed with overwhelming GOP support, 390-33 in the House and 98-0 in the Senate. I answered that the Republican Party is considerably more conservative than it was just eight years ago and significant elements of the party are actively committed to making it harder for people to vote.

Eric Cantor’s primary defeat last night offers a good explanation for why so many Republicans are no longer willing to back efforts to protect voting rights.

After the Supreme Court’s decision invalidating a key section of the VRA last year, Cantor vowed to “find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected.” He was the only member of the GOP leadership to take such a position. Supporters of the Voting Rights Amendment Act of 2014 were counting on his support (even though he remained noncommittal to date).

The bill was written specifically with Cantor in mind, watered down on the key issue of voter ID to attract GOP support. I was told recently from a well-placed Capitol Hill source that Cantor planned to eventually announce his support for the bill, but was waiting for the right strategic moment. Now it’s unlikely he will be in Congress in 2014 and even more unlikely the legislation can get through the House without him.

In the run-up to the primary, Tea Party groups like True the Vote attacked Cantor for indicating a willingness to potentially support the bill (even equivocation is now a sin!). “Over the past several months we have observed an alarming ambiguity in your position,” six conservative groups wrote to Cantor earlier this week, requesting a meeting to stress their opposition to the VRA bill. The signees included former Reagan attorney general Ed Meese. “This bill will fundamentally and intentionally change American elections into race-reliant battlefields.”

“Virginians, vote in your Primary today, then ask Rep. Cantor to protect ALL Americans’ votes and stop #HR3899,” True the Vote tweeted yesterday.

There's no evidence that Cantor's position on the VRA, or lack thereof, played a role in his defeat. To my knowledge, the issue was never addressed by either Cantor or his opponent Dave Brat during the primary campaign. (Immigration seemed to be the key issue.) But my sense is that Cantor did not announce his support for VRA legislation because he was worried, like on so many issues, about the reaction from the right. The flak he caught from conservatives shows how far to the right many Republicans have moved on voting rights. Eight years ago, nearly every Republican member of Congress supported a strong twenty-five-year extension of the VRA. Now few Republicans are willing to support a modest VRA fix.

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Just look at what happened a month ago, when Rand Paul was bitterly attacked on the right for suggesting that Republicans downplay their support for voter ID laws. Paul quickly backtracked after upsetting Fox News and related audiences.

For many years, there was a bipartisan consensus in Congress in favor of voting rights. That fell apart after Obama’s election. The reaction on the right to even tepid pro–voting rights statements by Cantor and Paul suggests that other prominent Republicans will continue to support restricting voting rights rather than backing efforts to expand the franchise.

Read Next: Katrina vanden Heuvel on why it's time to change US policy with Cuba.

The Debate Over Voting Rights Is Shifting Dramatically. Just Ask Rand Paul.

Rand Paul

Republican Senator Rand Paul has now spoken up in defense of voting rights. (AP Photo/Ed Reinke)

Last August, after the Supreme Court struck down a key provision of the Voting Rights Act, Rand Paul argued: “I don’t think there is objective evidence that we’re precluding African-Americans from voting any longer.” (For a comprehensive rebuttal, read Andrew Cohen’s “Here’s Where Rand Paul Can Find ‘Objective Evidence’ of Voter Suppression.”)

Nine months later, Paul is saying of voter ID laws,: “It’s wrong for Republicans to go too crazy on this issue because it’s offending people.” He’s conceded that Republicans have “over-emphasized” the prevalence of voter fraud and has called cutting early voting hours “a mistake.” He’s working with Eric Holder and lobbying in his home state of Kentucky to restore voting rights to nonviolent ex-felons. This from a guy who ran for office as a darling of the Tea Party and suggested that the Civil Rights Act of 1964 was unconstitutional.

Paul’s new religion on voting rights is evidence of a broader shift on the issue. In recent weeks, courts in Wisconsin and Arkansas have struck down voter ID laws and Pennsylvania Governor Tom Corbett decided not to appeal a Commonwealth Court decision in January overturning his state’s voter ID law. Extensive rulings in Wisconsin and Pennsylvania have strongly undercut the case for voter ID laws, showing that hundreds of thousands of registered voters lack the specific forms of newly required government-issued ID, that these voters are disproportionately black and Hispanic and lower-income, that obtaining such ID can be a Kafkaesque bureaucratic nightmare, and that there is no evidence of voter impersonation to justify such burdens. As Judge Lynn Adelman wrote in Wisconsin, “It is absolutely clear that [voter ID] will prevent more legitimate votes from being cast than fraudulent votes.” (A two-year investigation into voter fraud in Iowa found zero cases of voter impersonation at the polls.)

In 2008, the Supreme Court upheld Indiana’s voter ID law in a 6-3 decision authored by Justice John Paul Stevens, one of the most liberal Justices on the Court. Even though Indiana presented no evidence of in-person voter impersonation to support the law, Stevens wrote that the state’s “interest in protecting the integrity and reliability of the electoral process” justified whatever burdens would result from strict voter ID. But in 2013, Stevens told The Wall Street Journal that he is not “a fan of voter ID” and that “the impact of the statute is much more serious” on poor, minority, disabled and elderly voters than he believed in 2008.

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Judge Richard Posner, who also upheld Indiana’s voter ID law on the Court of Appeals for the Seventh Circuit, has also changed his tune on the issue, calling voter ID “a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” Voter ID laws and related voting restrictions are increasingly being rejected in the courts, by politicians and among the public.

As I wrote recently, many Republicans used to strongly support voting rights and played instrumental roles in the enactment of the Voting Rights Act and its four reauthorizations. That changed dramatically following Barack Obama’s election, when GOP-backed voting restrictions sprung up all across the map. Maybe now the pendulum is swinging back to expanding the franchise. It will be a welcome sign when Paul isn’t the only major Republican to criticize his party for making it harder for people to vote.

UPDATE: Paul's office released this statement from Doug Stafford, advisor to Senator Paul:

“Senator Paul was having a larger discussion about criminal justice reform and restoration of voting rights, two issues he has been speaking about around the country and pushing for in state and federal legislation. 

In the course of that discussion, he reiterated a point he has made before that while there may be some instances of voter fraud, it should not be a defining issue of the Republican Party, as it is an issue that is perhaps perceived in a way it is not intended. At no point did Senator Paul come out against voter ID laws. In terms of the specifics of voter ID laws, Senator Paul believes it's up to each state to decide that type of issue.”

UPDATE II: On Tuesday, May 13, Paul "clarified" his views on voter ID in interviews with Fox News hosts Sean Hannity and Greta Van Susteren, making clear that he supports voter ID laws but believes that Republicans should "emphasize" other issues. Read Steve Benen of Maddowblog for more.  

Read Next: Republicans used to support voting rights, what happened?

ACLU Lawsuit: Ohio Early Voting Cuts Violate Voting Rights Act

Ohio early voting

Early voting in Ohio in 2012. (AP Photo/Mark Duncan)

Voting rights advocates, after successfully challenging Wisconsin’s voter ID law this week, filed suit today challenging early voting restrictions in Ohio.

The GOP-controlled Ohio legislature, after repeatedly attempting to cut early voting in 2012, earlier this year eliminated the state’s first week of early voting—the “Golden Week” when voters could also register at the polls. In addition, Ohio Secretary of State Jon Husted issued a directive abolishing the last two days of early voting before Election Day and eliminating early voting hours on weeknights and Sundays, when African-American churches traditionally organize “Souls to the Polls” drives.

In 2012, 157,000 Ohioans cast ballots during early voting hours eliminated by the Ohio GOP, according to a lawsuit filed by the ACLU on behalf of groups including the Ohio NAACP and the League of Women Voters. As in Wisconsin, the lawsuit contends that such cuts violate the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act (VRA) by disproportionately burdening black voters.

Blacks in Ohio were far more likely than whites to vote early in 2008 and 2012. “In the November 2008 election in [Cleveland’s] Cuyahoga County, African Americans voted early in person at a rate over twenty times greater than white voters,” according to the Lawyers’ Committee for Civil Rights. In cities like Cincinnati, Columbus and Dayton blacks voted early in numbers far exceeding their percentage of the population.

In the 2004 election, before Ohio adopted early voting, there were extremely long lines in large urban counties and African-American voters waited nearly three times as long as white voters to vote. One survey estimated that 130,000 Ohioans left the polls without casting a ballot. George W. Bush won the state by only 119,000 votes.

Few lawsuits have been filed challenging early voting cutbacks under Section 2 of the VRA, because early voting is a recent reform and Section 2 has traditionally applied to vote dilution cases, so the outcome in Ohio will likely have larger national implications.

Ohio is not the only battleground state to restrict early voting this year. In March the Republican-led Wisconsin legislature eliminated early voting hours on nights and weekends, when it’s most convenient to vote. Take a look at this chart comparing early voting hours in 2010 versus 2014.

Over 250,000 Wisconsinites voted early in 2012, one in twelve overall voters. Cutting early voting has a clear partisan purpose: those who voted early broke for Obama 58 to 41 percent in Wisconsin in 2012, compared to his 51 to 48 percent margin on Election Day.

Last July, as part of the nation’s harshest anti-voting law, the North Carolina legislature cut a week off early voting and eliminated same-day voter registration, which the Justice Department and voting rights groups are also challenging under Section 2 of the VRA. Seventy percent of African-American voters in North Carolina voted early in 2008 and 2012.

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An analysis for the ACLU in North Carolina projects the impact of these cuts:

During the 2012 general election, over one-half of North Carolinians voted early, with about 900,000 ballots cast during the seven days of early voting that have now been eliminated. If just four percent of those voters showed up on Election Day, waiting times to vote would have more than doubled, according to Ted Allen, professor of industrial engineering at Ohio State, who literally wrote the textbook on lines and waiting times to vote.

But some people just can’t afford to spend their time in line. With longer waits, Allen calculates that 18,000 people would have given up in frustration and left the lines without voting. And that’s just a low-end estimate: In a worst-case scenario, waiting times would have been just shy of three hours to vote. For perspective, that’s how long it takes to drive from Raleigh to Charlotte.

This is not an abstract discussion. We saw the negative impact of early voting cuts in Florida in 2012. After the legislature eliminated a week of early voting, including on Sundays, seven-hour-long lines followed and 300,000 fewer people went to the polls. Turnout declined by over 10 percent relative to 2008. Said Paul Gronke, an early voting expert at Reed College, “After Florida cut back on early voting, its population of early voters became less black, and more white.”

Early voting cuts are the most indefensible aspect of the Republican war on voting. They inconvenience voters across the political spectrum and disproportionately harm those voters who have historically been excluded from the political process.

After public outcry following the 2012 election, Florida Republicans repealed their early voting cuts. “For Republicans who want to make their whole thing on eliminating early voting, I think that is a mistake,” Rand Paul said recently. But Republicans in Ohio and Wisconsin are still doubling down on making it harder for people to vote.

Read Next: A federal court recently struck down Wisconsin’s discriminatory voter ID law.

Federal Court Strikes Down Discriminatory Wisconsin Voter ID Law

Protesters in Wisconsin

Protesters in Wisconsin. (Reuters/Darren Hauck)

At 2:17 pm EST today, ESPN announced that LA Clippers owner Donald Sterling had been banned from the NBA for life for his racist remarks.

Seven minutes later, at 2:24 pm, the ACLU tweeted that a Wisconsin judge had struck down the state’s voter ID law because it disproportionately burdened black and Hispanic voters.

Both decisions were striking affirmations of Justice Sonia Sotomayor’s dissent last week, in a Michigan affirmative action case, that “race matters.” Sotomayor pointed to contemporary voter suppression efforts as an illustration of her defense.

Wisconsin federal district court Judge Lynn Adelman ruled today that the state’s voter ID law, which was temporarily enjoined in 2012, violated the Fourteenth Amendment and Section 2 of the Voting Rights Act. Judge Adelman found that 300,000 registered voters in Wisconsin, roughly 9 percent of registered voters, lacked the government-issued ID required by the state to cast a ballot. “To put this number in context,” Adelman wrote, “in 2010 the race for governor in Wisconsin was decided by 124,638 votes, and the race for United States Senator was decided by 105,041 votes. Thus, the number of registered voters who lack a qualifying ID is large enough to change the outcome of Wisconsin elections.”

The voter ID law had a clear discriminatory impact, the judge found. “The evidence adduced at trial demonstrates that this unique burden disproportionately impacts Black and Latino voters,” Adelman wrote. Data from the 2012 election “showed that African American voters in Wisconsin were 1.7 times as likely as white voters to lack a matching driver’s license or state ID and that Latino voters in Wisconsin were 2.6 times as likely as white voters to lack these forms of identification.”

The judge found that Wisconsin’s ID law overwhelmingly impacted lower-income voters and that “Blacks and Latinos in Wisconsin are disproportionately likely to live in poverty…. The reason Blacks and Latinos are disproportionately likely to live in poverty, and therefore to lack a qualifying ID, is because they have suffered from, and continue to suffer from, the effects of discrimination.”

Reading his opinion, it seemed as if Judge Adelman were directly addressing the “colorblind” ideology of Chief Justice John Roberts, who has argued that voting discrimination is largely a thing of the past and that consideration of race to remedy past discrimination is, in and of itself, discriminatory. “It’s not just these intentional, Donald Sterling-like acts that matter,” says Dale Ho, director of the ACLU’s voting rights project, which challenged the Wisconsin voter ID law. “It’s laws that reinforce existing patterns of inequality which themselves are related to broad patterns of discrimination.”

Adelman’s ruling is significant for at least three reasons:

1. It’s the most comprehensive opinion yet detailing the case against voter ID laws and the paucity of evidence to justify them.

2. It’s part of a broader trend striking down new voter restrictions—Wisconsin is the fifth state where voter ID laws have been invalidated in court. “These laws, when they get seriously tested, don’t survive in court,” says Ho. The Supreme Court upheld Indiana’s voter ID law in 2008, but since then legal and public skepticism of voter ID laws and related restrictions has increased considerably.

3. It’s the first time a voter ID law has been struck down under Section 2 of the Voting Rights Act or the federal Constitution. Other laws had previously been invalidated under state constitutions in Missouri, Arkansas and Pennsylvania or under Section 5 of the Voting Rights Act, which the Supreme Court gutted last year. Section 2 has traditionally been used to challenge “vote dilution” cases, like discriminatory redistricting plans, rather than “vote denial” efforts that prevent or obstruct minority voters from casting a ballot. But now, without Section 5, the Department of Justice is challenging voter ID laws in North Carolina and Texas under Section 2.

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Judge Adelman argued that the state of Wisconsin presented no evidence of voter fraud to justify the burdens of the ID law. “The evidence at trial established that virtually no voter impersonation occurs in Wisconsin,” he wrote. “The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past…. It is absolutely clear that Act 23 will prevent more legitimate votes from being cast than fraudulent votes.”

The problem in Wisconsin wasn’t only the large number of voters who lacked ID, but the Kafkaesque hurdles voters had to jump through to obtain the correct ID. The lead plaintiff in the case, 84-year-old Ruthelle Frank, began voting in 1948, but didn’t have a driver’s license or birth certificate and couldn’t get the state ID card needed to vote. According to the Milwaukee Journal-Sentinel:

Frank said she tried to get a state identification card last month at a Division of Motor Vehicles office but was rebuffed when she couldn’t produce a birth certificate. She did have a notarized baptism certificate, as well as a Social Security card, Medicare statement and a checkbook.

“I was about in tears,” she said.

But she didn’t cry. She grew angry. And she called her local newspaper, the Wausau Daily Herald, which told her story.

According to the newspaper, a record of Frank’s birth does exist with the state register of deeds in Madison. She could get a birth certificate for a fee, $20. But Frank said that fee amounted to a poll tax.

There’s another problem. Frank’s maiden name of Wedepohl was misspelled by the physician who attended her home birth. To get the birth certificate amended, she could petition the court, a process that could take several weeks and cost at least $200, the newspaper said.

These horror stories have been told over and over in Wisconsin, a place that voting rights activists now call “the Selma of the North.” According to Judge Adelman, “seven of the witnesses who testified about their own lack of a qualifying ID stated that it was the lack of a birth certificate that was preventing them from obtaining an ID.”

Ironically, the negative impact of voter ID laws has undermined the purported rationale of their sponsors: to protect the integrity of US elections. “Perhaps the reason why photo ID requirements have no effect on confidence or trust in the electoral process is that such laws undermine the public’s confidence in the electoral process as much as they promote it,” Adelman concluded.

 

Read Next: Dave Zirin on the Donald Sterling ban

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