On American politics and policy.
A federal judge in Winston-Salem today set the schedule for a trial challenging North Carolina’s sweeping new voter restrictions. There will be a hearing on whether to grant a preliminary injunction in July 2014 and a full trial a year later, in July 2015.
This gives the plaintiffs challenging the law, which includes the Department of Justice, the ACLU and the North Carolina NAACP, a chance to block the bill’s worst provisions before the 2014 election. Earlier this year, in July 2013, the North Carolina legislature passed the country’s worst voter suppression law, which included strict voter ID to cast a ballot, cuts to early voting, the elimination of same-day voter registration, the repeal of public financing of judicial elections and many more harsh and unnecessary anti-voting measures.
These restrictions will impact millions of voters in the state across all races and demographic groups: in 2012, for example, 2.5 million North Carolinians voted early, 152,000 used same-day voter registration, 138,000 voters lacked government-issued ID and 7,500 people cast an out-of-precinct provisional ballot. These four provisions alone will negatively affect nearly 3 million people who voted in 2012.
Ironically, it took the North Carolina legislature less than a month to approve the law, but it will take a year before an initial hearing on it and two years before a full trial. That’s because in June 2013 the Supreme Court invalidated Section 4 of the Voting Rights Act, which meant that previously covered states like North Carolina, with the worst history of voting discrimination, no longer had to clear their voting changes with the federal government.
North Carolina passed its new restrictions a month after the SCOTUS decision, making the legislation as draconian as possible because it no longer needed federal approval. The state is crystal-clear evidence of why SCOTUS was wrong to gut the VRA and to treat voting discrimination as a thing of the past. It also shows why Section 2 of the VRA is no substitute for Section 5.
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. (A challenge to Texas’s voter ID law under Section 2 of the VRA will go to trial in September 2014.)
The Dallas Morning News reported this week that legislation to strengthen the VRA following the Supreme Court’s decision is stalled in Congress because the GOP leadership has yet to support it. The fight over voting rights in North Carolina vividly demonstrates why Congress should update the VRA.
Read Next: Ari Berman reports on recent attemps to suppress the vote in Ohio by curtailing early voting.
In 2004, Ohio had the longest lines in the country on Election Day, with some voters—particularly in large urban areas—waiting as long as seven hours to vote. A DNC survey estimated that 174,000 Ohioans—3 percent of the state’s electorate—left without voting. George W. Bush won the state by just 118,000 votes.
In response to the long lines, Ohio adopted thirty-five days of early voting in 2008, including on nights and weekends, to make voting more convenient. But following the large Democratic turnout in 2008, Ohio Republicans drastically curtailed early voting in 2012 from thirty-five to eleven days, with no voting on the Sunday before the election, when African-American churches historically rally their congregants to go to the polls. Voting rights activists subsequently gathered enough signatures to block the new voting restrictions and force a referendum on Election Day. In reaction, Ohio Republicans repealed their own bill in the state legislature, but kept a ban on early voting three days before Election Day (when 98,000 Ohioans voted in 2008), adding an exception for active duty members of the military, who tend to lean Republican.
These cuts disproportionately impacted black voters, who made up a majority of early voters in large urban areas like Cleveland’s Cuyahoga County and Dayton’s Montgomery County in 2008. Ohio Republicans brazenly tried to cut early voting hours in Democratic counties while expanding them in Republican ones. GOP leaders admitted the cuts in Democratic counties were motivated by racial politics. “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine,” said Doug Preisse, the GOP chair in Columbus’s Franklin County.
These voter suppression efforts backfired in 2012. The Obama campaign successfully sued to reinstate early voting on the three days before Election Day (although Secretary of State Jon Husted limited the hours) and the overall share of the black electorate increased from 11 percent in 2008 to 15 percent in 2012.
But now Ohio Republicans are once again resurrecting efforts to make it harder to vote. Last month, the GOP-controlled Ohio Senate, on a party-line vote, voted to cut early voting by a week, eliminating the “Golden Week” when Ohioans can register and vote on the same day during the early voting period (Senate Bill 238). The legislation was introduced and passed in one week, with almost no time for substantive debate. The Senate also passed a bill preventing the secretary of state or individual counties from mailing absentee ballots to all eligible voters unless the legislature provides the money, which they are unlikely to do (Senate Bill 205). The Ohio House, which is also controlled by a large GOP majority, is holding hearings on the bills this week.
These restrictions—and additional measures being considered by the legislature—have the potential to impact millions of voters in the Buckeye State: 600,000 Ohioans voted early in 2012, more than 10 percent of the state’s electorate, and 1.25 million voted by mail, 22 percent of the electorate.
“The voting rights community is raising the alarm because these laws in and of themselves are significant, but we fear they are the beginning of a wave of bills to make it harder to vote in Ohio,” says Ellis Jacobs, founder of the Miami Valley Voter Protection Coalition.
Jacobs fears that the legislature could soon consider proposals to further cut early voting hours, particularly on weekends when it’s most convenient to vote, along with a strict voter ID law (900,000 Ohioans, including one in four eligible African-Americans, don’t have a government-issued ID). The unpopular voting restriction bill of 2012, which the legislature repealed after opponents forced a referendum, “is being reintroduced in pieces,” Jacobs says. “It’s an effort to sneak it in under the radar and to make it very hard to overturn by referendum.” Incidentally, the first elections bill passed by the legislature this year and signed by Governor John Kasich made it much more difficult for citizens to challenge legislation via referendum.
Republicans have claimed that cutting early voting and Ohio’s Golden Week are necessary to stop voter fraud—their one-size-fits-all justification for all voting restrictions—but there’s no evidence that early voting or same-day registration has led to voter fraud in Ohio, just as there’s no evidence of voter impersonation that a voter ID law would stop.
Jacobs testified before the Senate:
The Secretary of State’s office reported that 5.6 million voters turned out for the November 2012 general election and just 625 ballots showed irregularities. Of those, 115 were investigated by law enforcement and 20 were sent to the Attorney General Mike DeWine. The Attorney General’s office said 13 cases of voters casting ballots in multiple states were ultimately turned over to the prosecutor’s office.
In other words, .00023 percent of votes in 2012 were referred for prosecution, none have resulted in a conviction so far, and none would have been stopped the legislature’s proposed voting restrictions. [UPDATE: There have been three convictions in the Cincinnati area stemming from 2012: a poll worker voted in three elections for her sister, who was in a coma; a nun voted for a fellow sister who passed away before she could cast a ballot; and a man submitted his wife's absentee ballot before she died. These are abuses of the system, but hardly evidence of a wide-ranging conspiracy to commit voter fraud.]
The legislature has done nothing to address the real problems in Ohio during the 2012 election, namely that voters in large urban areas waited much longer to vote than those in small rural counties. “On the last weekend of 2012, waiting times from 1-4 hrs were the rule in almost all larger counties,” reported Norman Robbins of Northeast Ohio Voter Advocates. “Smaller counties with populations less than 160,000 had waiting times of less than 0.5 hour.”
Congresswoman Marcia Fudge of Cleveland, chairwoman of the Congressional Black Caucus, recently sent a letter to Attorney General Eric Holder suggesting that cuts to early voting and a voter ID law would violate Section 2 of the Voting Rights Act. “I believe both of these proposals are designed to systematically restrict the access of eligible Ohioans to the voting booth, particularly minorities, students and the elderly,” Fudge wrote. “After this summer’s dismantling of a key provision of the Voting Rights Act by the US Supreme Court, it is even more important that we remain vigilant and promptly address attempts to limit access for eligible voters.”
Ari Berman discusses the two-tiered voting systems emerging in Kansas and Arizona.
The GOP-controlled board of elections in Pasquotank County voted to prevent a student at a historically black college from running for city council where he attended school. The GOP-controlled board of election in Watauga County shut down an early voting site at Appalachian State University in Boone and placed the general election polling place at a campus nightclub instead of the student union.
Both of these moves backfired badly on the North Carolina GOP in the 2013 local elections.
The North Carolina state board of election ruled that Montravias King, a senior at Elizabeth City State University could indeed run for the city council where he attended school, which he said was his primary residence. On October 9, King was elected to the Elizabeth City city council, winning the most votes of any candidate. He’s now the youngest elected official in the state.
In Boone, Democrats swept races for mayor and three city council seats on Tuesday. Voter turnout increased compared to municipal elections in 2009. “This result in some ways speaks to the visceral reaction people have when you try to take people’s voting rights away,” said new Mayor Andy Ball, a former ASU student. Boone Democrats said the Republicans they canvassed were equally unhappy with the board of election’s decisions and didn’t turn out as a result.
These local elections had far more exposure because of GOP attempts to restrict student voting than they otherwise would have. Rachel Maddow broadcast from North Carolina. The national media, yours truly included, closely followed the story. Like we saw in 2012, voters don’t like it when you try to limit their voting rights.
(It’s worth noting that the new restrictions passed by the North Carolina legislature this year don’t go into effect until 2014 for most provisions and 2016 for voter ID.)
The news on voting rights was much worse in Texas, where voters experienced many problems with the new voter ID law.
The disastrous ramifications of the Supreme Court’s decision striking down Section 4 of the Voting Rights Act are also being felt in more subtle ways at the local level. In Pasadena, Texas—a city of 150,000 near Houston where Hispanics make up a third of the vote—voters on Tuesday approved by eighty-seven votes an amendment changing how districts are allocated in the city. As SCOTUSblog reported, there were previously eight city council districts in Pasadena. But the amendment narrowly adopted by voters shrunk the number of districts to six, eliminating two predominantly Hispanic districts, while creating two “at-large” seats that will be decided by the town’s white majority. It’s the type of discriminatory voting change that would’ve likely been blocked by Section 5 of the VRA, but will now go into effect. “The Justice Department can no longer tell us what to do,” said Pasadena Mayor Johnny Isbell.
The same type of thing happened recently in Beaumont, Texas, where white conservatives gained control of a previously black-majority school board.
For many years, states like Texas used devices like at-large elections to prevent blacks and Hispanics from holding office. Litigation under the VRA invalidated many of these discriminatory districts. Now things are once again headed the other way.
Former Speaker of the House Jim Wright has voted in every election since 1944 and represented Texas in Congress for thirty-four years. But when he went to his local Department of Public Safety office to obtain the new voter ID required to vote—which he never needed in any previous election—the 90-year-old Wright was denied. His driver’s license is expired and his Texas Christian University faculty ID is not accepted as a valid form of voter ID.
To be able to vote in Texas, including in Tuesday’s election for statewide constitutional amendments, Wright’s assistant will have to get a certified copy of his birth certificate, which costs $22. According to the state of Texas, 600,000 to 800,000 registered voters in Texas don’t have a valid form of government-issued photo ID. Wright is evidently one of them. But unlike Wright, most of these voters will not have an assistant or the political connections of a former Speaker of the House to help them obtain a birth certificate to prove their identify, nor can they necessarily make two trips to the DMV office or afford a birth certificate.
The devil is in the details when it comes to voter ID. And the rollout of the new law in Texas is off to a very bad start. “I earnestly hope these unduly stringent requirements on voters won’t dramatically reduce the number of people who vote,” Wright told the Fort Worth Star-Telegram. “I think they will reduce the number to some extent.”
As I’ve reported previously, getting the necessary voter ID in Texas, which has one of the strictest laws in the country, is no walk in the park. As in Wright’s case, you need to pay for a birth certificate or another type of citizenship document to obtain one (which Eric Holder called a poll tax). A handgun permit is an acceptable voter ID in Texas, but a university ID is not. And there are no DMV offices in eighty-one of 254 counties in Texas. That’s probably why only fifty of the 600–800,000 registered voters without voter ID in the state have so far successfully obtained one. (The Department of Justice has filed suit to block the law, which was invalidated by a federal court last year but reinstated when the Supreme Court invalidated Section 4 of the Voting Rights Act. Texas filed a motion last Friday to dismiss the lawsuit.)
Beyond the hundreds of thousands of voters, like Wright, who don’t have valid ID, millions more in Texas could be inconvenienced or disenfranchised by a provision of the law stipulating that a voter’s photo ID be “substantially similar” to their name in the poll book. In this year’s elections for statewide constitutional amendments in Texas, a district court judge, a state senator and both candidates for governor—Wendy Davis and Greg Abbott—had to sign affidavits to vote because their IDs didn’t match their poll book names.
In a highly ironic twist, Davis, a critic of the voter ID law, offered an amendment to allow voters whose IDs were not identical to their poll names to be able to sign an affidavit to vote, which allowed her 2014 gubernatorial opponent, Greg Abbott, a top supporter of voter ID, to cast a ballot this year.
Reported Zack Roth of MSNBC:
In 2011, Davis introduced an amendment to the voter ID bill saying that if names are substantially similar but not identical, voters can sign an affidavit and still vote. The original bill as drafted by Republicans would have required voters in that situation to present a document showing a name change—something few people bring with them when they go to vote.
And it gets better—or worse. Greg Abbott, the frontrunner for the GOP nomination for governor, also will have to sign an affidavit, his campaign said, thanks to a similar names mismatch. Abbott, the state attorney general, has defended the voter ID law in court.
“If it weren’t for Wendy Davis’ leadership, Greg Abbott might have nearly disenfranchised himself,” Davis spokesman Bo Delp said.
One in seven voters in Dallas County has had to sign an affidavit in order to vote this year. That’s over 1,000 voters so far. This requirement can create a lot of confusion and, at the very least, makes voting take longer than it should. In a high-turnout election, like in 2014 when Davis will face Abbott, Texas could very well resemble Florida when it comes to long lines and electoral dysfunction. “When you have a huge turnout, a minute for every voter could really produce some lines,” Dallas County elections administrator Toni Pippins-Poole told the Dallas Morning News.
Supporters of voter ID, like Abbott, claim the law is necessary to stop voter fraud, even though there’s been only one voter impersonation conviction in Texas since 2000. Instead, the law is ensnaring the top political leaders in the state. And this is only the beginning, unless and until the federal courts decide to stop it.
(I discussed my latest article “Jim Crow II” and Texas’s voter ID law on Melissa Harris-Perry’s MSNBC show yesterday.]
Ari Berman discusses the GOP’s most recent redistricting of Southern states and how it obstructs the vote.
Texas’s new voter ID law got off to a rocky start this week as early voting began for state constitutional amendments. The law was previously blocked as discriminatory by the federal courts under the Voting Rights Act in 2012, until the Supreme Court invalidated Section 4 of the VRA in June. (The Department of Justice has filed suit against the law under Section 2 of the VRA.) Now we are seeing the disastrous ramifications of the Supreme Court’s decision.
Based on Texas’ own data, 600,000 to 800,000 registered voters don’t have the government-issued ID needed to cast a ballot, with Hispanics 46 to 120 percent more likely than whites to lack an ID. But a much larger segment of the electorate, particularly women, will be impacted by the requirement that a voter’s ID be “substantially similar” to their name on the voter registration rolls. According to a 2006 study by the Brennan Center for Justice, a third of all women have citizenship documents that do not match their current legal name.
“What I have used for voter registration and for identification for the last 52 years was not sufficient yesterday when I went to vote,” 117th District Court Judge Sandra Watts said.
Watts has voted in every election for the last forty-nine years. The name on her driver’s license has remained the same for fifty-two years, and the address on her voter registration card or driver’s license hasn’t changed in more than two decades. So imagine her surprise when she was told by voting officials that she would have to sign a “voters affidavit” affirming she was who she said she was.
“Someone looked at that and said, ‘Well, they’re not the same,’” Watts said.
The difference? On the driver’s license, Judge Watts’s maiden name is her middle name. On her voter registration, it’s her actual middle name. That was enough under the new, more strict voter fraud law, to send up a red flag.
“This is the first time I have ever had a problem voting,” Watts said.
The disproportionate impact of the law on women voters could be a major factor in upcoming Texas elections, especially now that Wendy Davis is running for governor in 2014.
Moreover, the state is doing very little to make sure that voters who don’t have an ID can get one. As I mentioned, 600–800,000 registered voters don’t have an acceptable voter ID, but according to the Dallas Morning News “only 41 of the new cards were issued by DPS [Department of Public Safety] as of last week.”
Getting a valid photo ID in Texas can be far more difficult than one assumes. To obtain one of the government-issued IDs now needed to vote, voters must first pay for underlying documents to confirm their identity, the cheapest option being a birth certificate for $22 (otherwise known as a “poll tax”); 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 the closest location. 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 the new voter ID (Hispanics in Texas are also twice as likely as whites to not have a car). “A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote,” a federal court wrote last year when it blocked the law.
Texas has set up mobile voter ID units in twenty counties to help people obtain an ID, but has issued new IDs to only twenty voters at the sites so far.
Supporters of the voter ID law, such as Governor Rick Perry, argue that it’s necessary to stop the rampant menace of voter fraud. But there’s no evidence that voter impersonation fraud is a problem in Texas. According to the comprehensive News21 database, there has been only one successful conviction for voter impersonation—I repeat, only one—since 2000.
Texas has the distinction of being one of the few states that allows you to vote with a concealed weapons permit, but not a student ID. Provisions like these suggest that the law was aimed less at stopping voter fraud and more at stopping the changing demographics of the state. Based on what we’re seeing thus far, the law might better be described as the Republican Self-Preservation Act.
Ari Berman discusses the DOJ’s response to North Carolina’s new voter supression laws.
Anissa Jackson carries Confederate battle flags as she runs past the Civil Rights Memorial outside the Southern Poverty Law Center in Montgomery, Alabama. (AP Photo/Dave Martin)
In its 2013 decision in Arizona v. The Inter Tribal Council of Arizona, the Supreme Court ruled 7-2 that Arizona’s proof of citizenship law for voter registration violated the 1993 National Voter Registration Act (NVRA).
In 2004, Arizona voters approved Proposition 200, a stringent anti-immigration law that included provisions requiring proof of citizenship to register to vote and government-issued photo ID to cast a ballot. Last year, the US Court of Appeals for the Ninth Circuit blocked the proof of citizenship requirement, which it said violated the NVRA. Under the 1993 act, which drastically expanded voter access by allowing registration at public facilities like the DMV, those using a federal form to register to vote must affirm, under penalty of perjury, that they are US citizens. Twenty-eight million people used that federal form to register to vote in 2008. Arizona’s law, the court concluded, violated the NVRA by requiring additional documentation, such as a driver’s license, birth certificate, passport or tribal forms. 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.” The Supreme Court affirmed the lower court ruling, finding that states like Arizona could not reject applicants who registered using the NVRA form.
Now Arizona and Kansas—which passed a similar proof-of-citizenship law in 2011—are arguing that the Supreme Court’s decision applies only to federal elections and that those who register using the federal form cannot vote in state and local elections. The two states have sued the Election Assistance Commission and are setting up a two-tiered system of voter registration, which could disenfranchise thousands of voters and infringe on state and federal law.
The tactics of Arizona and Kansas recall the days of segregation and the Supreme Court’s 1896 “separate but equal” ruling in Plessy v. Ferguson. “These dual registration systems have a really ugly racial history,” says Dale Ho, director of the ACLU’s Voting Rights Project. “They were set up after Reconstruction alongside poll taxes, literacy tests and all the other devices that were used to disenfranchise African-American voters.”
In the Jim Crow South, citizens often had to register multiple times, with different clerks, to be able to vote in state and federal elections. It was hard enough to register once in states like Mississippi, where only 6.7 percent of African-Americans were registered to vote before the passage of the Voting Rights Act of 1965. And when the federal courts struck down a literacy test or a poll tax before 1965, states like Mississippi still retained them for state and local elections, thereby preventing African-American voters from replacing those officials most responsible for upholding voter disenfranchisement laws.
The Voting Rights Act ended this dichotomy between federal and state elections by prohibiting racial discrimination in voting in all elections. Section 5 of the Act, which the Supreme Court eviscerated earlier this year in Shelby County v. Holder, prevented states with the worst history of voting discrimination—like Mississippi—from instituting new disenfranchisement schemes. It was Section 5 that blocked Mississippi from implementing a two-tiered system of voter registration following the passage of the NVRA in 1993, which the state claimed applied only to federal elections. (A similar plan was stopped in Illinois under state court.) Arizona—another state previously subject to Section 5 based on a long history of discrimination against Hispanic voters and other language minority groups—is making virtually the same rejected argument as Mississippi in the 1990s, but, thanks to the Roberts Court, no longer has to seek federal approval to make the voting change. The revival of the dual registration scheme is yet another reason why Congress should revive Section 5.
The proposed two-tiered system of voting and the harmfulness of proof-of-citizenship laws warrant legal scrutiny. Over 30,000 voters were prevented from registering in Arizona after its proof-of-citizenship law passed in 2004. In Kansas, 17,000 voters have been blocked from registering this year, a third of all registration applicants, because the DMV doesn’t transfer citizenship documents to election officials. The ACLU has vowed to sue Kansas if the state continues its noncompliance with state and federal law.
Proof-of-citizenship laws and the new two-tiered voting scheme are the brainchild of Kansas Secretary of State Kris Kobach, who has done more than just about anyone to stir up fears about the manufactured threat of voter fraud. As the author of Arizona’s “papers please” immigration law and Mitt Romney’s nonsensical “self deportation” immigration plan, he’s fused anti-immigrant hysteria with voter-fraud paranoia. Kobach helped the American Legislative Exchange Council draft model legislation for proof of citizenship laws based on Arizona’s bill, which were adopted in three states—Alabama, Kansas and Tennessee—following the 2010 election.
To justify his state’s new voting restrictions (Kansas also has a strict voter ID law), Kobach told The Huffington Post, “We identified 15 aliens registered to vote,” but he seems unconcerned that 17,000 eligible Kansans have been preventing from registering. Moreover, there’s no evidence these fifteen alleged non-citizens actually voted—just as there’s no evidence that dead people are voting in Kansas, another erroneous claim from Kobach. As Brad Friedman noted, Kansas City Star columnist Yael Abouhalkah wrote last year that Kobach “has a way of lying” about the threat of voter fraud.
Kobach claimed in 2011 that sixty-seven non-citizens had illegally registered, out of 1.7 million on the state’s voter rolls, but he “was unable to identify a single instance of a non-citizen illegally casting a vote, or any successful prosecution for voter fraud in the state,” according to the Brennan Center. As I’ve asked before, why would a non-citizen, who presumably is in the United States to work, risk deportation and imprisonment in order to cast a ballot? Kobach once suggested in a radio interview that perhaps their coyote was paying them to vote, which defies all logic.
There’s also no evidence that using the NVRA’s federal form to register leads to higher incidents of voter fraud. “Nobody has ever been prosecuted for using the federal form to register to vote as a non-citizen,” Nina Perales, vice president of litigation at the Mexican-American Legal Defense Fund, told me earlier this year.
In reality, the two-tiered system of registration being set up in Arizona and Kansas has less to do with stopping voter registration fraud, which as shown is a very rare problem in both states, and more to do with “nullifying” federal laws that Republicans don’t like, such as Obamacare. There’s symmetry between shutting down the government and creating separate and unequal systems of voter registration. It’s a strategy that dates back to Jim Crow, when fierce segregationists like John Calhoun of South Carolina tried to prevent the federal government from taxing the Confederacy and Southern Democrats instituted a policy of “massive resistance” to the Supreme Court’s Brown v. Board of Education ruling desegregating public schools.
Wrote Sam Tanenhaus in “Why Republicans Are The Party of White People”:
When the intellectual authors of the modern right created its doctrines in the 1950s, they drew on nineteenth-century political thought, borrowing explicitly from the great apologists for slavery, above all, the intellectually fierce South Carolinian John C. Calhoun. This is not to say conservatives today share Calhoun’s ideas about race. It is to say instead that the Calhoun revival, based on his complex theories of constitutional democracy, became the justification for conservative politicians to resist, ignore, or even overturn the will of the electoral majority.
The Confederates and Dixiecrats of yesteryear are the Republicans of today.
Ari Berman writes about how the redistricting of Southern states helps keep their white GOP politicians in office
May 30, 2013, Texas state Sen. Juan “Chuy” Hinojosa looks at maps on display prior to a Senate Redistricting committee hearing, in Austin, Texas. (AP Photo/Eric Gay)
In 1956, segregationist Southern Democrats outlined a policy of “massive resistance” in response to the Supreme Court’s Brown v. Board of Education ruling desegregating public schools.
Today, the Republican Party, particularly in the South, is following a similar path of massive resistance when it comes to Obamacare and any other major policy initiative proposed by President Obama. According to The New York Times, twenty-six states—all-but-three controlled by the GOP—have declined the Medicaid expansion under Obamacare, thereby denying health insurance coverage to 8 million Americans. “Every state in the Deep South, with the exception of Arkansas, has rejected the expansion,” writes the Times.
The GOP’s obsession with defunding Obamacare has caused them to shut down the government despite the public outcry. Many factors play into the shutdown, but a leading cause is the fact the Republican Party is whiter, more Southern and more conservative than ever before.
Writes Charlie Cook:
Between 2000 and 2010, the non-Hispanic white share of the population fell from 69 percent to 64 percent, closely tracking the 5-point drop in the white share of the electorate measured by exit polls between 2004 and 2012. But after the post-census redistricting and the 2012 elections, the non-Hispanic white share of the average Republican House district jumped from 73 percent to 75 percent, and the average Democratic House district declined from 52 percent white to 51 percent white. In other words, while the country continues to grow more racially diverse, the average Republican district continues to get even whiter.
As Congress has become more polarized along party lines, it’s become more racially polarized, too. In 2000, House Republicans represented 59 percent of all white U.S. residents and 40 percent of all nonwhite residents. But today, they represent 63 percent of all whites and just 38 percent of all nonwhites.
Even though House Republicans do not represent the changing face of the country, they have a huge structural advantage when it comes to the makeup of Congress, especially following the 2010 redistricting cycle, when the GOP controlled the process in twenty states compared to seven for Democrats. Writes Cook:
The number of strongly Democratic districts—those with a score of D+5 or greater at the presidential level—decreased from 144 before redistricting to 136 afterward. The number of strongly Republican districts—those with a score of R+5 or greater—increased from 175 to 183. When one party starts out with 47 more very strong districts than the other, the numbers suggest that the fix is in for any election featuring a fairly neutral environment. Republicans would need to mess up pretty badly to lose their House majority in the near future.
This phenomenon is most acute in the South, where the GOP systematically packed as many Democratic voters, particularly African-Americans, into as few districts as possible in order to ensure huge Republicans majorities across the region (see my story “How the GOP Is Resegregating the South”). Here’s the gist:
In virtually every state in the South, at the Congressional and state level, Republicans—to protect and expand their gains in 2010—have increased the number of minority voters in majority-minority districts represented overwhelmingly by black Democrats while diluting the minority vote in swing or crossover districts held by white Democrats. “What’s uniform across the South is that Republicans are using race as a central basis in drawing districts for partisan advantage,” says Anita Earls, a prominent civil rights lawyer and executive director of the Durham-based Southern Coalition for Social Justice. “The bigger picture is to ultimately make the Democratic Party in the South be represented only by people of color.” The GOP’s long-term goal is to enshrine a system of racially polarized voting that will make it harder for Democrats to win races on local, state, federal and presidential levels. Four years after the election of Barack Obama, which offered the promise of a new day of postracial politics in states like North Carolina, Republicans are once again employing a Southern Strategy that would make Richard Nixon and Lee Atwater proud.
After the 1994 elections, white Southern Republicans accounted for sixty-nine members of the 230-member House GOP majority. Today, white Southern Republicans account for ninety-eight members out of the 233-member House GOP majority. That’s a pretty remarkable shift and one that is not likely to end any time soon. “In all but one election since 1976, the proportion of Southerners in the House Republican caucus has gone up,” says Dave Wasserman of the Cook Political Report.
Of the fifty-four members of the congressional Tea Party Caucus—which is most vociferously telling John Boehner not to compromise—thirty-three are from Southern states. Of the eighty members of the so-called House GOP “suicide caucus” who urged Boehner to defund Obamacare, “half of these districts are concentrated in the South,” writes Ryan Lizza of The New Yorker. As long as ultraconservative Southerners from lily-white districts hold the balance of power in the Congress, we shouldn’t be surprised that obstruction and dysfunction is the result.
Ari Berman discussed the fight over redistricting in Texas back in June.
Editors' Note: An earlier version of this article stated that there were sixty-two white Southern Republicans in the House in 1994; this number has been changed to sixty-nine. It also said that there were ninety-seven white Southern Republicans in the House currently; this number has been changed to ninety-eight.
A student registers to vote in North Carolina (AP Photo/Chuck Burton)
The Justice Department filed suit against key provisions of North Carolina’s worst-in-the-nation voter suppression law in federal court today. The lawsuit alleges that North Carolina’s harsh voter ID law, cutbacks to early voting, elimination of same-day registration during the early voting period and ban on counting provisional ballots cast in the wrong precinct violate Section 2 of the Voting Rights Act. The Department also argues that these voting changes were enacted with intentional discrimination and thus North Carolina should have to approve all of its voting changes with the federal government for a period of time.
“By restricting access and ease of voter participation, this new law would shrink, rather than expand, access to the franchise,” Attorney General Eric Holder said at a press conference today. Days after the Supreme Court struck down Section 4 of the Voting Rights Act, “the state legislature took aggressive steps to curtail the voting rights of African-Americans,” said Holder. “This is an intentional attempt to break a system that was working.”
The DOJ case comes on the heels of three lawsuits filed by civil rights groups in August challenging North Carolina’s voting restrictions. The Department has also recently filed suit against Texas’s voter ID law and redistricting maps.
Seven Southern states have passed or implemented new voting restrictions since that SCOTUS decision, and the North Carolina law is the most extreme yet. The law eliminates or curtails nearly everything that encourages people to vote in North Carolina, replaced by unnecessary and burdensome new requirements. The evidence of discrimination against African-American voters in the state is crystal clear: African-Americans are 23 percent of registered voters in North Carolina, but made up 29 percent of early voters in 2012, 30 percent of those who cast out-of-precinct ballots, 34 percent of the 318,000 registered voters without state-issued ID and 41 percent of those who used same-day registration.
From the complaint:
Against a backdrop of the State’s history of voting discrimination against African Americans and a dramatic increase in the State’s African-American voter turnout rates during the November general elections in 2008 and 2012, North Carolina enacted HB 589 with knowledge of the disproportionate effect that numerous provisions, both singly and together, would have on the equal political participation of minority voters. These provisions include the reduction of the early voting period, the elimination of same-day voter registration, and the imposition of voter photo identification requirements without reasonable safeguards for voters who face barriers to obtaining such identification.
These restrictions will impact millions of voters in the state across all races and demographic groups: in 2012, for example, 2.5 million North Carolinians voted early, 152,000 used same-day voter registration, 138,000 voters lacked government-issued ID and 7,500 people cast an out-of-precinct provisional ballot. These four provisions alone will negatively affect nearly 3 million people who voted in 2012.
Days after the law was signed, North Carolina Republicans escalated their attack on voting rights with an unprecedented crackdown on student voting, trying to prevent a student at a historically black college from running for city council where he attended school (which the state board of elections overruled) and shutting down polling places on college campuses. This was an obvious indication that the law was aimed not at stopping voter fraud, which is virtually non-existent in the state (there have been only twenty-two alleged cases of fraud since 2000 according to the comprehensive News21 database), but at making it harder for core Democratic constituencies to cast a ballot and seek elected office.
“I stand here to announce this lawsuit more in sorrow than in anger,” said Holder. “It pains me to see the voting rights of my fellow citizens negatively impacted by actions predicated on a rationale that is tenuous at best—and on concerns that we all know are not, in fact, real.”
Will the DOJ lawsuit be successful? That depends on three key factors I outlined in August. How will courts interpret Section 2 of the VRA, which has been rarely used to challenge these type of voting changes? Can the DOJ prove that North Carolina’s voting changes were enacted with intentional discrimination, which is a very high bar to clear? And regardless of the legal outcome, will the law produce a political backlash by minority voters that will offset the impact of the new restrictions? On the first two legal points, the outcome is hazy—we’re in uncharted waters thanks to the Supreme Court’s gutting of the VRA. A political backlash in North Carolina is easier to foresee, since the Moral Monday movement has been successfully organizing for months and the approval ratings of the GOP legislature and North Carolina Governor Pat McCrory are in the toilet.
The fight over voting rights in North Carolina vividly demonstrates why Congress needs to update the VRA. “Case-by-case litigation is no substitute for Congressional action on legislation to fill the void left by the Supreme Court’s decision,” said Holder. From 1980 to 2013, the lawsuit notes, the DOJ blocked 155 voting changes in North Carolina under Section 5 of the VRA. If Section 5 was still operable, the burden would have been on North Carolina to prove to the federal government that its voting changes were not discriminatory. Given the overwhelming facts of disparate racial impact in the law, the DOJ or the courts would have almost certainly blocked its implementation. Instead, the North Carolina legislature interpreted the Supreme Court’s decision as a green light for voter suppression, which it was, and made the bill as draconian as possible. It’s good that DOJ is now suing North Carolina, but it never should have come to this.
Read Ari Berman’s post on the aniversary of the March on Washington and the reinvigorated fight for voting rights.
Marchers during the fiftieth anniversary commemoration of the March on Washington, August 24, 2013. (Reuters/James Lawler Duggan)
During this week’s events commemorating the fiftieth anniversary of the March on Washington, the fight for voting rights emerged as a central cause for the civil rights movement. In 1963, few blacks could vote in the states of the Old Confederacy. In 2013, there’s a black president, but the right to vote is under the most sustained attack—in the states and the courts—since the passage of the Voting Rights Act in 1965.
At the official commemoration today, Presidents Obama, Clinton and Carter voiced their dismay over the Supreme Court’s decision gutting the VRA and the rush to implement new voter suppression laws in seven Southern states since the ruling.
“A great democracy does not make it harder to vote than to buy an assault weapon,” said Clinton, referencing a Texas voter ID law that accepts a concealed carry permit, but not a student ID, to cast a ballot.
“I believe we all know how Dr. King would have reacted to the new ID requirements to exclude certain voters, especially African-Americans,” said Carter. “I think we all know how Dr. King would have reacted to the Supreme Court striking down a crucial part of the Voting Rights Act just recently passed overwhelmingly by Congress.”
We must challenge “those who erect new barriers to the vote,” said Obama.
Voting rights issues were even more front and center at Saturday’s “Realize the Dream” rally and march.
“This morning, we affirm that this struggle must, and will, go on in the cause of our nation’s quest for justice—until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices,” said Attorney General Eric Holder, who just filed a suit challenging Texas’s voter ID law under Section 2 of the Voting Rights Act.
“I gave a little blood on that bridge in Selma, Alabama, for the right to vote,” said Congressman John Lewis, who was nearly killed during the “Bloody Sunday” march in 1965. “I am not going to stand by and let the Supreme Court take the right to vote away from us.”
Lewis spoke for everyone at the rally when he said, “We must say to the Congress: fix the Voting Rights Act.”
Any congressional fix to the VRA will require bipartisan support and no Republicans spoke at either of the two major March on Washington commemorations. But Representative James Sensenbrenner (R-WI) did promise congressional action to save the VRA by the end of the year at a meeting of black Republicans sponsored by the RNC. Said Sensenbrenner:
“I am committed to restoring the Voting Rights Act as an effective tool to prevent discrimination, more subtle discrimination now than overt discrimination. This is going to be difficult because of the way the court worded its decision, but so far this effort has been bipartisan and bicameral. A month and a half ago, Congressman John Lewis and I went over and testified before the Senate Judiciary Committee on how important the Voting Rights Act is. At the end of the testimony, Mr. Lewis turned around and put his arm on my shoulder and said ‘Jim, you are my friend and my brother.’ And that was one of the highest compliments that I have received in almost 46 years in elected public office.
Senator Leahy said I was a civil rights icon. I said, ‘no, I’m not an icon, I’m a mechanic.’ And my job is to fix the Voting Rights Act. Now, the first thing we have to do is to take the monkey wrench that the court threw in it out of the Voting Rights Act and then use that monkey wrench to be able to fix it so that it is alive, well, constitutional and impervious to another challenge that will be filed by the usual suspects…. This is something that has to be done by the end of the year so that a revised and constitutional Voting Rights Act is in place before the 2014 election season, both primaries and general elections.”
This is probably wishful thinking on Sensenbrenner’s part; this week illustrated how few champions of civil rights there are in the GOP today. But voting rights advocates have developed a five-part strategy for protecting the franchise.
Number one: Challenge discriminatory voting laws in the courts through the remaining provisions of the VRA or under state constitutions. This is already happening in Texas and North Carolina.
Number two: Organize locally to register new voters and help them comply with the onerous new voting changes by making sure, for example, that everyone who needs an ID can get one. That’s a major task in places like North Carolina (318,000 registered voters don’t have government-issued ID) and Texas (600-800,000 registered voters without ID.) The work of coalitions like the Moral Monday movement in North Carolina is vital in this regard. They held rallies in the state’s thirteen congressional districts today advocating for voting rights.
Number three: Lobby Congress to pass a new VRA. The House and Senate held the first hearings on the VRA last month. The next step is for legislation to be introduced, which voting rights groups can then rally around.
Number four: Expand voting rights in states where there is a more favorable political climate, like Colorado, which earlier this year lengthened early voting and adopted Election Day voter registration. According to the Brennan Center, ten states have passed new voting changes this year that make it easier to vote (what a revolutionary concept).
Number five: Mobilize voters for the 2014 elections. The potential backlash against voter suppression laws could be a major factor in the midterms, like it was in 2012, when the black vote surpassed the white vote for the first time in presidential history. “Will we get a new Voting Rights Act map in this Congress?” the Rev. Al Sharpton told me recently. “Probably not. But it can be a central issue in the midterm elections to galvanize the vote, like we did last year.”
Gary Younge on why Dr. King’s dream is still misunderstood.
Students of Howard University march from campus to the Lincoln Memorial to participate in the Realize the Dream Rally for the fiftieth anniversary of the March in Washington, August 24, 2013 Reuters/James Lawler Duggan
There were marquee names like Eric Holder and great speeches by civil rights icons like Congressman John Lewis at the Lincoln Memorial. But the most important people at the rally and march commemorating the fiftieth anniversary of the March on Washington spoke earlier in the day, with little fanfare, when many had yet to arrive.
They included the likes of Rev. William Barber, president of the North Carolina NAACP and leader of the state’s Moral Monday movement, and Philip Agnew, executive director of the Dream Defenders. These two groups, in particular, represent the new face of a twenty-first-century civil rights movement, one that is desperately needed to fight new battles in defense of issues like voting rights and racial justice. Barber represents the latest iteration of the Martin Luther King–inspired prophetic tradition; Agnew embodies the new activism of the hip-hop generation. (The Advancement Project, one of the most innovative civil rights organizations, has provided indispensable support to both groups.)
“We are the forgotten generation,” said Agnew, 28, early in the morning at the Lincoln Memorial, wearing the group’s trademark “Power” cap. “We are the illegals. We are the apathetic. We are the thugs. We are the generation that you locked in the basement while movement conversations were going on upstairs.”
Following the acquittal of George Zimmerman in the killing of Trayvon Martin on July 13, Agnew and other young Floridians held an impromptu sit-in at the Florida capital to protest the state’s Stand Your Ground law. It lasted thirty-one days and captured national attention, with visits from civil rights veterans like Jesse Jackson, Julian Bond and Harry Belafonte. Now the Dream Defenders have launched a new campaign to register 61,500 voters—the margin of victory for Florida Governor Rick Scott in 2010.
Fifty-five Dream Defenders took a twenty-five-hour bus ride from Miami to attend the March on Washington anniversary. “This march is important to draw the bridge from young people to generations before us,” Agnew told me. “I do see a resurgence of civil rights activism and a willingness to engage in nonviolent conflict.” Added Steven Pargett, the group’s communications director, “This is a very exciting time for young people to come together.”
In North Carolina, Barber’s Moral Monday coalition has sparked a multiracial, multi-issue political movement unseen since the 1960s, when the state became the birthplace of the Student Nonviolent Coordinating Committee and the Greensboro lunch counter sit-ins. Moral Monday activists have led the fight against the slew of radical policies passed by the state’s GOP legislature this year, including the country’s worst voter suppression law. “The greed, the meanness and the extremism of the far right has created a space for us to come together,” Barber told me. “This evil is producing a good.” For example, as a result of the GOP’s outrageous attacks on student voting, “we’re going to be able to organize these college campuses like never before,” Barber says.
Barber’s friend, Bob Zellner, a former field secretary of SNCC, attended the 1963 March on Washington when he was 24. “The most important thing about today is that grassroots organizing still works and that millions of people around the country are interested in it,” he told me. He called the march “an example of the new upsurge in the civil rights movement.” But Zellner was also upset that Barber was only invited to give a prayer early in the morning, rather than speak later in the day when more were paying attention.
In his “I Have a Dream” speech, King called on civil rights activists to “go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed.” Barber says those concerned about civil rights must now do the same, at a time when state fights in places like North Carolina have once again become national battles. “We have to have state strategies to change the nation,” Barber says.
Also at the March was Dave Zirin, who asks, what would Dr. King, Ella Baker, Fannie Lou Hamer or Malcolm X think about the 50th anniversary celebration?