Ari Berman | The Nation

Representative John Lewis. (AP Photo/Charles Dharapak)

[See below for update on House hearing]

The Senate Judiciary Committee held its first hearing today on the Voting Rights Act since the Supreme Court gutted the landmark civil rights law last month. The key witnesses were civil rights icon Representative John Lewis and Representative James Sensenbrenner, the former chair of the House Judiciary Committee who led the effort to overwhelmingly reauthorize the VRA in 2006.

In his testimony, Lewis described how he almost died fighting for the right to vote in 1965 and how friends of his never made it out of Mississippi alive. “I remember these problems and this struggle like it was yesterday,” Lewis said. He noted the “deliberate and systematic” attempt to make it harder for voters to participate in the last election, when nineteen states passed twenty-five new voting restrictions, saying “the Voting Rights Act is needed now like never before.”

His colleague Representative Sensenbrenner called the VRA the most important civil rights law of the twentieth century and said, “We cannot afford to lose it now.” The court’s decision presents Congress with a “historic opportunity” to draft a revised Section 4 of the VRA, he said, covering jurisdictions with “recent and egregious voting records.” Sensenbrenner mentioned that he proudly displays the pen Ronald Reagan used to sign the 1982 reauthorization of the VRA. “Though the Voting Rights Act has been enormously successful, we know our work is not complete,” he said. The key will be whether Sensenbrenner can bring fellow House Republicans along with him, like he did in 2006. “I’m certainly on board to put something together that will last for a long time,” he said.

Tomorrow, the House Judiciary Committee Subcommittee on the Constitution will hold its first hearing on the VRA, which will give a good indication of where House Republicans stand on the issue. The subcommittee chairman, Representative Trent Franks of Arizona, was one of only thirty-three House Republicans to vote against the VRA’s reauthorization in 2006.

Beyond Sensenbrenner, there wasn’t much enthusiasm among Republicans on the Senate Judiciary Committee to revise the VRA. Only two Republicans attended the hearing, Senators Grassley and Cruz, neither of whom stayed the full time. Cruz praised the Supreme Court’s decision, while Grassley and witness Michael Carvin, a prominent Republican lawyer at Jones Day, suggested that Section 2 would be an adequate replacement for Sections 4 & 5. (Section 4 determines how states are covered under Section 5, which requires that states with the worst history of voting discrimination clear their voting changes with the federal government.)

Luz Urbáez Weinberg, a Republican city commissioner in Aventura, Florida, in Miami-Dade County, strongly disagreed with that argument. “Section 5 has no peer,” she said. “Section 2 is not sufficient.” Section 5 puts the burden of proof on targeted jurisdictions to show that their voting changes are not discriminatory before they go into effect, whereas Section 2 forces plaintiffs to show that a voting change is discriminatory, usually only after it has gone into effect, following lengthy, expensive litigation. It’s the difference between stopping a crime before it exists versus forcing the victim of the crime to seek justice afterward.

Not only is Section 5 far more effective than Section 2, it has accurately targeted those places with the worst history of voting discrimination. According to voting rights historian Morgan Kousser, “From 1957 through 2006, almost 94 percent of all voting rights minority lawsuits, legal objections and out-of-court settlements occurred in jurisdictions now subject to federal oversight under the Section 4 formula.”

So what can Congress do now? It can draft a revised Section 4 based on more current data. It can make it easier to “bail-in” states with recent voting violations under Section 3 (which MSNBC’s Adam Serwer called a “secret weapon”) and make it easier for voting rights groups and the DOJ to win Section 2 cases.

It was obvious from the hearing that Congress will not come to a consensus unless it faces a tremendous amount of pressure to do so. Voting rights supporters, as I wrote recently, have a four-pronged strategy for responding to the Court’s decision:

Challenge new voting restrictions through preliminary injunctions and Section 2 of the VRA (which applies nationwide, but puts the onus on plaintiffs to prove that a law is discriminatory after enactment); pressure Congress to reconstruct the VRA; draft a new coverage formula for Section 4; and mobilize indignant voters to make their voices heard, starting with the fiftieth anniversary of the March on Washington on August 28.

The need for Congress to act is clear. The Justice Department blocked 1,116 discriminatory voting changes from taking effect under Section 5 from 1965 to 2004 and objected to thirty-seven electoral proposals after Congress reauthorized the law in 2006. Immediately following the decision, five Southern states rushed to implement new voter-ID laws that disproportionately affect young and minority voters. A sixth covered state, North Carolina, is on the verge of passing a new voter ID law by the end of this week. According to the state’s own numbers, 316,000 registered voters don’t have state-issued ID; 34 percent are African-American and 55 percent are registered Democrats. Of the 138,000 voters without ID who cast a ballot in the 2012 election, 36 percent were African-American and 59 registered percent Democrats. The new draft of the bill does not allow student IDs for voting and would cost $10 to obtain unless a voter signs a form saying they cannot afford the ID under penalty of perjury, making it among the most restrictive laws in the country. A number of other harsh voting restrictions—such as cutting early voting, ending same-day voter registration and penalizing the parents of students who vote where they go to school—could be added to the bill. (It's worth noting that voter fraud in the state, which the legislation purports to stop, is incredibly rare; there were only two prosecutions of voter impersonation between 2000 and 2010.)

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Simply looking at what’s happened since the Court’s decision—not to mention the four overwhelming reauthorizations of the VRA in 1970, 1975, 1982 and 2006—should give Congress ample evidence on which to act.

[UPDATE, July 18, 1:20 pm]:

The House Judiciary Committee just concluded its first hearing on the VRA, where it was clear that no consensus exists between the parties on whether to fix the VRA or how to do so. The Republican congressmen and witnesses maintained that existing parts of the VRA, notably Sections 2 and 3, were sufficient replacements for Sections 4 and 5 and thus, in the words of Hans von Spakovsky of the Heritage Foundation: “there’s no reason for Congress to take any action.”

Rep. Goodlatte (R-VA), chairman of the Judiciary Committee, said that even though Section 4 has been ruled unconstitutional, thereby paralyzing Section 5, “other very important provisions remain in place.” Added Christian Adams, a former Bush Administration official in the DOJ civil rights division who pushed the bogus lawsuit against the New Black Panther Party in Philadelphia: “Reports of the demise of the Voting Rights Act have been greatly exaggerated. What remains? Everything else.” Von Spakovsky called Section 2 “the heart of the VRA.”

It’s worth expanding on how disingenuous these claims are. As I noted above, neither Section 2 nor Section 3 come close to having the impact of Section 5. As election law expert Rick Hasen writes: “Section 2 is no substitute for section 5. It has virtually no teeth these days outside of the redistricting area…It has not been used successfully go to after voter id, and it would be hard to use it (given the statutory standard) to go after problems with voter registration and long lines. Even worse, if courts start reading section 2 more broadly to cover things like voter id, then section 2 itself could be found by the Roberts Court to be unconstitutional.” As Justice Kennedy said in 2009 (and seems to have forgotten in 2013), “Section 2 cases are very expensive. They are very long. They are very inefficient.” That’s why DOJ – which blocked discriminatory voting laws in places like Texas during the last election under Section 5 - hasn’t filed a single Section 2 lawsuit during the Obama administration.

Moreover, states with recent voting violations can only be covered under Section 3 of the VRA if plaintiffs show that voting changes were enacted with intentional discrimination, which is almost impossible to prove. Congress could amend Section 3 so that plaintiffs only have to prove the effect of discrimination to win a case, but absent that, Section 3 will remain a little-used remedy.

Section 5 is so important because, as Bob Kengle of the Lawyers’ Committee for Civil Rights noted, “racial discrimination in voting needs to be stopped before it occurs.” Spencer Overton of George Washington University Law School likened it to the metal detector he passed through before testifying today in the House.

Rep. Sensenbrenner is still the only high-profile Republicans to argue that Section 5 remains vital. The rest of the GOP seems to be reciting talking points from the Heritage Foundation. Unless a tremendous amount of pressure is brought upon Congress to resurrect Section 4 or to strengthen the other parts of the VRA – starting during the August recess – chances for VRA reform look pretty slim.  

Take Action: Tell Congress to Honor John Lewis with a New Voting Rights Act

Women vote in the US presidential election in Los Angeles, November 4, 2008. (Reuters/Lucy Nicholson)

No sooner had the Voting Rights Act passed in 1965, after two hundred years of slavery and nearly 100 years of Jim Crow, than Southern conservatives, who failed to stop the law, began to attack it. South Carolina mounted the first constitutional challenge to the law only a month after it was enacted. President Nixon tried to weaken the law take the “monkey…off the backs off the South,” as did Presidents Ford in 1975 and Reagan in 1982. Every effort to gut the VRA failed. Each time the law’s constitutionality was challenged, in 1966, 1973, 1980 and 1999, the Supreme Court upheld the act. Every congressional reauthorization, in 1970, 1975, 1982 and 2006, made the law stronger, not weaker, in protecting voting rights. Each Congressional reauthorization was signed by a Republican president, cementing the bipartisan consensus supporting the VRA. “The Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history,” Justice Ginsburg wrote in her dissent today.

That consensus held until now, with the Roberts Court finding that Section 4 of the Voting Rights Act is unconstitutional. Section 4 is how states are covered under Section 5 of the Voting Rights Act, the provision which requires states with the worst history of voting discrimination—those who had a discriminatory voting device on the books and voter turnout of less than 50 percent in the 1964 election—to preclear their voting changes with the federal government. Without Section 4, there’s no Section 5. The most effective provision of the country’s most effective civil rights law is now dead until and unless Congress figures out a new way to cover states where voting discrimination is most prevalent that satisfies the Roberts Court.

Explained the Chief Justice, who has been trying to weaken the VRA ever since he was a young lawyer in the Reagan Justice Department: “Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, ‘[v]oter turnout and registration rates’ in covered jurisdictions ‘now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased Section 5’s restrictions or narrowed the scope of Section 4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger…. In 1965, the States could be divided into those with a recent history of voting tests and low voter registration and turnout and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

Congress, which reauthorized the VRA by a vote of 390-33 in the House and 98-0 in the Senate in 2006, “cannot justify the considerable burdens created by Section 5,” the Chief Justice wrote. The Court’s message to Congress: drop dead. “In the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy,” wrote Justice Ginsburg in her powerful dissent. “Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post–Civil War Amendments ‘by appropriate legislation.’ With overwhelming support in both Houses, Congress concluded that, for two prime reasons, Section 5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.”

There’s a particular irony to the Court killing Section 5 just months after a presidential election in which voter suppression attempts played a starring role. Congress was prescient when it reauthorized the VRA in 2006 for another twenty-five years. Thirty-one discriminatory voting laws have been blocked by Section 5 since that time. Six of nine states fully covered by Section 5, all in the South, passed new voting restrictions since the 2010 election, when GOP state legislatures approved a wave of voter suppression laws unseen since before 1965. In 2008, Shelby County, Alabama, the plaintiff challenging the VRA, was found guilty of the very type of voter discrimination the VRA was meant to address, after trying to eliminate the only black city council district in the city of Calera. The law’s coverage formula, though dated, is still surprisingly accurate. Law professors Christopher Elmendorf and Douglas Spencer surveyed data on racial stereotypes from the 2008 election and found that “Section 5…is remarkably well tailored to the geography of anti-black prejudice.” If anything, Section 5 should be expanded to encompass the wide scope of twenty-first-century voting discrimination, not narrowed or eliminated.

Today’s opinion by the Roberts Court was the most radical since Citizens United v. FEC and the worst voting rights decision in a century, since the Court upheld poll taxes and literacy tests in Giles v. Harris in 1903. “The Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking,” wrote Ginsburg. “Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.” Just as the Citizens United decision led to an explosion of unregulated dark money spending in US elections, so too will the loss of Section 5 encourage many more of the shadowy voter suppression attempts that we saw in 2012.

What will that mean in practice? Texas’ voter ID law, which was blocked under Section 5 by a federal court last year and could disenfranchise up to 800,000 registered voters without government-issued photo ID, will immediately go into effect. The states of the Old Confederacy will return to the pre-1965 playbook, passing new voter suppression laws that can only be challenged, after years of lengthy litigation, in often-hostile Southern courts, with the burden of proof on those subject to discrimination, rather than those doing the discriminating. Conservatives will be emboldened to challenge the parts of the VRA, like Section 2, that apply nationwide.

“The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective,” wrote Justice Ginsburg. “The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrimination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the ‘variety and persistence’ measures designed to impair minority voting rights. In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.”

There will be no easy fix in Congress. The body looked at updating how states were covered in Section 5, but no one could come up with a better answer than the draftees of the VRA in 1965. Changing the places covered by Section 5 would have blown up the entire bill. There was no political will or necessity to expand Section 5 nationwide, and “no objective statistical criteria could have added the most recent bad actors (Ohio and Florida) to the list of currently covered jurisdictions,” wrote Nate Persily, a law professor at Columbia University. “The fact that Section 5 was geographically targeted has always been seen as one of its constitutional saving graces.” Georgia Representative Charlie Norwood offered an amendment that would have exempted the entire Deep South and covered only Hawaii, a state with no history of racial discrimination in voting. The amendment was defeated 318 to 96.

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Asking this current Congress, which can hardly do more than name post offices, to revamp the VRA is a very steep task. Representative Steny Hoyer, the number-two ranking Democrat in the House, was pessimistic when I asked him recently what Congress would do if the Court overturned Section 5. “I think right now it would be difficult, because I don’t think, frankly, that the Republican majority in the House would allow it on the floor,” Hoyer said. “And I don’t think the Republican minority in the Senate would refrain from filibustering it. So I don’t think there would be much opportunity for legislative response unless the Democrats take control of the House, in which case there clearly would be a legislative response.”

The VRA hasn’t changed, but the Republican Party has. Today’s 5-4 decision by the Roberts Court gutting the VRA was the result of three factors, as I wrote in February: “a whiter, more Southern, more conservative GOP that has responded to demographic change by trying to suppress an increasingly diverse electorate; a twenty-five-year effort to gut the VRA by conservative intellectuals, who in recent years have received millions of dollars from top right-wing funders, including Charles Koch; and a reactionary Supreme Court that does not support remedies to racial discrimination.” Will the same Republicans who voted overwhelmingly for the VRA’s reauthorization in 2006 do so again? Will a new crop of Tea Party Republicans, such as Ted Cruz and Rand Paul, even allow it?

But the Court’s decision today could also spark a major backlash among minority voters, like the failed voter suppression attempts of 2012 that resulted in black turnout surpassing white turnout for the first time in US history. Just as the VRA’s passage led to counter-mobilization drives led by the likes of George Wallace, who registered to vote hundreds of thousands of conservative white voters in the 1960s, so too could the loss of Section 5 motivate a new wave of minority voting activism. “I absolutely believe that Americans will be even more embolden to hold every elected official accountable on protecting and expanding voting rights,” says Jotaka Eaddy, director of voting rights at the NAACP. “If Congress fails to act it will trigger a very [strong] response from the electorate.”

UPDATE: Congressman John Lewis, whom I profiled recently in The Nation and who almost died to win passage of the VRA in 1965, released this statement following the decision:

Today, the Supreme Court stuck a dagger into the heart of the Voting Rights Act of 1965, one of the most effective pieces of legislation Congress has passed in the last 50 years.

These men never stood in unmovable lines. They were never denied the right to participate in the democratic process. They were never beaten, jailed, run off their farms or fired from their jobs. No one they knew died simply trying to register to vote. They are not the victims of gerrymandering or contemporary unjust schemes to maneuver them out of their constitutional rights.

I remember in the 1960s when people of color were the majority in the small town of Tuskegee, Alabama. To insure that a black person would not be elected, the state gerrymandered Tuskegee Institute and the black sections of town so they fell outside the city limits. This reminds me too much of a case that occurred in Randolph County in my own state of Georgia, when the first black man was elected to the board of education in 2002. The county legislature changed his district so he would not be re-elected.

I disagree with the court that the history of discrimination is somehow irrelevant today. The record clearly demonstrates numerous attempts to impede voting rights still exist, and it does not matter that those attempts are not as “pervasive, widespread or rampant” as they were in 1965. One instance of discrimination is too much in a democracy.

As Justice Ginsberg mentioned, it took a Bloody Sunday for Congress to finally decide to fix on-going, institutionalized discrimination that occurred for 100 years after the rights of freed slaves were nullified at the end of the Civil War. I am deeply concerned that Congress will not have the will to fix what the Supreme Court has broken. I call upon the members of this body to do what is right to insure free and fair access to the ballot box in this country.

What is at stake now that the Supreme Court gutted the VRA? Look at Texas.

Take Action: Tell Congress to Guarantee the Right to Vote

“Moral Monday” protesters demonstrating inside the North Carolina General Assembly on June 10, 2013. (Photo courtesy of the North Carolina NAACP)

“Outsiders are coming in and they’re going to try to do to us what they did to Scott Walker in Wisconsin,” North Carolina Republican Governor Pat McCrory said yesterday, in response to the growing “Moral Monday” protest movement.

North Carolina is the new Wisconsin, but not for the reasons McCrory alleges. Like in Wisconsin, a homegrown grassroots resistance movement has emerged—and grown rapidly—to challenge the drastic right-wing agenda unveiled by Republicans in the state. Just like the Koch brothers backed Scott Walker, the Koch’s billionaire ally and close associate Art Pope funded North Carolina’s Republican takeover in 2010 and 2012. (Only McCrory went a step further and actually named Pope to his inner circle as deputy budget director.) And North Carolina, like Wisconsin, is “a state fight with national implications,” says Rev. William Barber of the North Carolina NAACP. Republicans have imported a slew of ALEC-inspired policies in an attempt to turn the New South back into the Old Confederacy.

Melissa Harris-Perry covered the North Carolina “Moral Monday” movement extensively on her MSNBC show last Saturday. I was one of the panelists.

In a few months since taking over power for the first time in one hundred years, North Carolina Republicans have passed or introduced legislation that would: eliminate the earned income tax credit for 900,000; decline Medicaid coverage for 500,000 and privatize public healthcare in the state; end unemployment benefits for 165,000 in a state with the country’s fifth-highest unemployment rate; cut pre-K for 30,000 kids while shifting $90 million from public education to voucher schools; cut taxes for the top 5 percent while raising taxes on the bottom 95 percent; allow for guns to be purchased without a background check and carried in parks, playgrounds, restaurants and bars; do away with public financing of judicial races; prohibit death row inmates from challenging racially discriminatory verdicts; and on it goes. (Unlike in Wisconsin, North Carolinians have no collective bargaining rights to protect).

In order to make it harder for opponents of these right-wing policies to challenge their sponsors, North Carolina Republicans have unloaded the kitchen sink of voter suppression. As I reported in April (“7 Ways North Carolina Republicans are Trying to Make it Harder to Vote”): “North Carolina Republicans have introduced a series of bills in the legislature that would require state-issued photo ID to cast a ballot, drastically cut early voting, eliminate same-day voter registration, end straight-ticket voting, penalize families of students who register to vote where they go to college, rescind the automatic restoration of voting rights for ex-felons, and ban “incompetent” voters from the polls. The legislation has been dubbed the ‘Screw the Voter Act of 2013’ and ‘The Longer Lines to Vote Bill.’ The goal is to make this racially integrated swing state a solidly red bastion for the next decade and beyond.”

Forty of 100 counties in North Carolina are subject to Section 5 of the Voting Rights Act, based on a history of voting discrimination, and must have their election changes approved by the federal government. But North Carolina Republicans, judging from the legislation introduced, are already acting as if the Supreme Court has struck down Section 5. If you want to know what a post–Section 5 world will resemble, without Section 5’s powerful deterrent and enforcement effect, look no further than what’s currently happening in the Tarheel state. (For more on the consequences of repealing Section 5, read this great new report from the Brennan Center for Justice.)

Barber, who has lived in North Carolina since 1966, kicked off the “Moral Monday” movement on April 29. “A couple of months ago, when we called for moral witnesses based on Gandhi and Dr King’s brilliant examples of nonviolent direct action, we had 17 ministers and other leaders answer the call and participate in the first inaugural ‘Moral Monday,’” he wrote in The Guardian this week. “We were pleased, but not shocked, when 29 additional North Carolinians came the second Monday; 49 the third, 59 the fourth, and 151 last Monday, 3 June. Each week, the number of supporters multiplies; from about 300 the first week to more than 4,000 on 3 June.”

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Several thousand joined the demonstration inside the North Carolina statehouse this past Monday, braving rain and tornado warnings, with clergy across the state taking the lead. The clergy, teachers, historians, politicians and civil rights leaders who are now getting arrested on a weekly basis, many for the first time, are hardly outside agitators, which, incidentally, was the kind of language used by Southern governors to defend segregation during the 1950s and ’60s. Of the 338 people arrested so far, only eight are not from North Carolina.

The Forward Together coalition is holding a “Witness Wednesday” event today to honor the fiftieth anniversary of the death of Medgar Evers and to launch a new statewide voter registration campaign. Says Barber, “2014 is a major time and our rights are under attack.” The 1960s civil rights movement began with a sit-in at a Woolworth’s lunch counter in Greensboro, North Carolina, and the “Moral Monday” movement shows how the fight for equal rights and justice continues in the state today.

Read Ari Berman’s article on John Lewis and his fight to save the Voting Rights Act.

Voters stand in line during the fourth day of early voting in North Miami, Tuesday, October 30, 2012, as Floridians cast their ballot seven days before Election Day. (AP Photo/Alan Diaz)

Throughout American history, restrictions on voter registration were a major tool of disenfranchisement. Before the passage of the Voting Rights Act in 1965, only a quarter of African-Americans in the South were registered to vote. Four years after the VRA outlawed literacy tests and other voter suppression devices, the number of black Southeners registered to vote had more than doubled.

Despite the transformative impact of the VRA, one of the most consequential laws in American history, obstacles to voter registration persisted. There were few locations at which to register, limited hours, recalcitrant county registrars, frequent voter purges and complex re-registration schemes. “Overall registration rates were lower in 1992 than in 1972,” notes a new report from Demos.

Voting rights reformers, led by CUNY professor Frances Fox Piven, launched a campaign in the 1980s to make voter registration easier as a way to fulfill the long-overdue promise of the VRA. On May 20, 1993, President Clinton signed the National Voter Registration Act, which made it possible to register to vote at the DMV and other public agencies, such as public assistance and disability centers, allowed prospective voters to mail in voter registration forms and made it simpler for third-party groups to conduct voter registration drives. In its first year on the books, in 1995, over 30 million people registered to vote or updated their voter registration through the NVRA. “Since the implementation of the NVRA, an estimated 141 million Americans have applied to get on the voter rolls through registration services the NVRA requires at DMVs, disability offices, and public agencies,” reports Project Vote. “In addition, countless more have been protected from purging due to the protections the NVRA provides.”

Much progress has been made as we mark the 20th anniversary of the NVRA, but there’s still a long way to go. A quarter of eligible US citizens are not registered to vote. As Attorney General Eric Holder has noted, 80 percent of the 75 million eligible Americans who didn’t vote in 2008 were not registered to vote. States in recent years have escalated attacks on voter registration.

Following the 2010 election, Alabama, Kansas and Tennessee passed laws requiring proof of citizenship to register to vote (according to a 2006 study by the Brennan Center for Justice, at least 7 percent of eligible voters “do not have ready access to the documents needed to prove citizenship”), Florida and Texas made it virtually impossible for third-party groups like the League of Women Voters to conduct voter registration drives and states like Florida and Colorado attempted ill-considered and inaccurate eleventh-hour voter purges. The Supreme Court will soon rule whether Arizona’s 2004 proof of citizenship law violates the NVRA. And the Court will also decide next month whether the centerpiece of the Voting Rights Act is unconstitutional.

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An antiquated voter registration system is a major cause of the country’s electoral dysfunction. Modernizing voter registration, as the Brennan Center for Justice has proposed, would add 50 million eligible Americans to the voter rolls by automatically registering consenting adults to vote at government agencies, adopting Election Day voter registration, and allowing citizens to register to vote and update their addresses online. These ideas have been incorporated into the Congressional Voter Empowerment Act and have recently been adopted by states like Colorado that are leading the way in terms of making it easier to vote.

“I think there is a guideline for election reform which we should take very seriously, and that is it has to be as simple as possible,” says Piven. “The procedures have to be as simple as possible so that people can understand them and can defend their own rights and so advocates can help them defend their own rights.”

What is Alabama’s problem with the Voting Right Act? Brentin Mock finds out.