On American politics and policy.
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?
Attorney General Eric Holder. (AP Photo/J. Scott Applewhite)
In one week last August, federal courts found that Texas’ voter ID law and redistricting maps were discriminatory and violated the Voting Rights Act. The Supreme Court’s recent decision invalidating Section 4 of the VRA, which previously covered Texas, tragically wiped away those rulings. Now the Department of Justice is once again stepping in to fight for voting rights in the Lone Star State.
The DOJ announced today that it is objecting to Texas’ voter ID law under Section 2 of the VRA and will also seek to join a similar lawsuit against the state’s redistricting maps. Last month, DOJ asked a court in Texas to force the state to approve its voting changes with the federal government for a period of time under another provision of the VRA, Section 3, based on a finding of intentional discrimination in the restricting case. The federal courts found last year that Texas’ new maps for Congress and the state house were “enacted with discriminatory purpose.”
A federal court blocked Texas’ voter ID law last year for very good reason. As I wrote last August, here are the facts of the case:
The state admitted that between 603,892 to 795,955 registered in voters in Texas lacked 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; to obtain one of the five 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”); Texas has DMV offices in only eighty-one of 254 counties in the state, with some voters needing to travel up to 250 miles to obtain a new 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 the new voter ID (Hispanics in Texas are also twice as likely as whites to not have a car).
The court objected to the law specifically because “(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.” Along with North Carolina, Texas has the harshest and most absurd voter ID law in the nation. Case in point: you can use a gun permit to vote but not a student ID. The state is also doing nothing to encourage people to get the supposedly “free” ID; a month after the Supreme Court’s ruling, only six people in Texas had obtained one, even though 600,000 to 800,000 registered voters lack the government-issued ID.
In its new court filing, DOJ contends that the voter ID law “will disproportionately impact Hispanic and African-American voters in the State of Texas, resulting in their being disenfranchised at a greater rate than Anglo voters.” The department says the law, known as SB 14, was “motivated by discriminatory intent” and “will have a discriminatory result.”
From the brief:
While the stated purpose of SB 14 was to ensure the integrity of elections, voter ID proponents cited virtually no evidence during or after enactment of SB 14 that in-person voter impersonation—the only form of election fraud addressed by the identification requirements of SB 14—was a serious problem or that the State’s then-existing identification procedures had failed to prevent in-person voter impersonation.
The State knew or should have known that Hispanic and African-American Texans disproportionately lack the forms of photo ID required by SB 14, as compared to their Anglo counterparts.
Nevertheless, supporters of voter ID in the Texas legislature made little to no effort to analyze the potential effect of photo ID requirements on minority voters and rejected amendments requiring investigation of the effect of SB 14.
The long history of voting discrimination in Texas makes the new law all-the-more worrisome. DOJ writes: “The State of Texas’s history of official racial discrimination against its African-American and Hispanic citizens is longstanding and well-documented. Federal intervention has been necessary to eliminate numerous devices intentionally used to restrict minority voting in Texas.” Texas has lost more Section 5 enforcement suits than any other state.
It will be much harder for the Department of Justice to block Texas’ voting changes under Section 2 of the VRA than it would have been under Section 5, but they’re smart to try. (See my piece on why Section 2 is no replacement for Section 5.) “We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights,” Attorney General Eric Holder said today. “This represents the Department’s latest action to protect voting rights, but it will not be our last.”
Since the Court’s decision, seven Southern states have rushed to pass or implement onerous new voting restrictions. North Carolina recently adopted the country’s worst voter suppression law (which voting rights groups are also challenging under Section 2), with local election boards escalating attacks on student voting hours after its passage by shutting down polling places at college campuses and preventing students from running for office. Since Holder has vowed more action to protect voting rights, there’s a very good chance that the Tarheel State will be next on his list.
A student registers to vote in North Carolina. (AP Photo/Chuck Burton)
Hours after passing the country’s worst voter suppression law, North Carolina Republicans escalated their attempts to prevent students from participating in the political process.
• The GOP-controlled board of elections in Pasquotank County voted to disqualify Montravias King, a senior at historically black Elizabeth City State University, from running for city council, claiming King couldn’t use his student address to establish residency, even though he’s been registered to vote there since 2009. “The head of the county’s Republican Party said he plans to challenge the voter registrations of more students at the historically black university ahead of upcoming elections,” the AP reported.
• The GOP chair of the Forsyth County Board of Elections is moving to shut down an early voting site at historically black Winston-Salem State University because he claims students were offered extra credit in class for voting there. “He offered no proof such irregularities had occurred,” the Raleigh News and Observer noted.
• The GOP-controlled Watauga County Board of Elections in Boone, North Carolina, voted along party lines to close an early voting and general election polling place at Appalachian State University. Instead, the county limited early voting to one site in Boone and created the state’s third-largest voting precinct, with 9,300 voters at a precinct designed for 1,500, with only thirty-five parking places. It’s inaccessible by public transportation and over a mile from campus along a 45 mph road with no sidewalk. “I feel like the people (students) who really care might come all the way out here to vote,” said Ashley Blevins, a junior at Appalachian State, “but I know a lot of people who are like, ‘eh, it’s too far—I don’t think I’m going to walk that far,’ because they don’t really have another way of getting here.”
The attempt to prevent students from voting and running for office where they attend school is likely unconstitutional based on the 1979 Supreme Court case Symm v. United States. Nonetheless, the GOP board of elections in Pasquotank County formally prevented King from running for office today. King can then appeal to the state board of elections, which is also controlled by Republicans. If it refuses to accept his candidacy, he can appeal to the state court of appeals. But time is running short. The election is the second Tuesday in October, and ballots will soon be printed without his name on it. There’s no guarantee the courts will hear the case before the election.
“This is highly unusual,” says Anita Earls of the Southern Coalition for Social Justice, which is representing King. “I was on the state board of elections for two years and we never had a case where a candidate was disqualified a few weeks before the election.” Earlier this year, Pasquotank County GOP chair Richard Gilbert also purged fifty-six student voters from Elizabeth City State University, all African-American, from the voting rolls, claiming they were not properly register to vote at their campus address. At King’s hearing, Gilbert was accompanied by Susan Myrick of the Civitas Institute, a right-wing group funded almost exclusively by Art Pope, the conservative billionaire who is now Governor Pat McCrory’s budget director.
The shutting down of polling places on college campuses could also draw a legal challenge. “If there’s an intent to stop students from voting, that should be grounds for an equal protections challenge,” says Earls. “Can we get a state or federal court to stop it? That’s an open question.”
There were at least sixteen early voting sites located on college campuses during the 2012 election (UNC-Asheville, UNC-Chapel Hill, UNC-Charlotte, UNC-Greensboro, North Carolina State University, Appalachian State University, East Carolina University, North Carolina Central University, Winston-Salem State University, North Carolina A & T University, Duke University, Johnston County Community College, Wake Tech Community College (2 sites), Stanly County Community College, Cape Fear Community College). Ten additional early voting sites are located within half a mile of a college campus (Boiling Springs Town Hall, Gardner-Webb University; Smith Recreation Center, Fayetteville State University; Franklin County Board of Elections Office, Louisburg College; Gaston County Citizens Resource Center, Gaston College; Oak Hollow Mall, John Wesley College; Morrison Regional Library, DeVry University; Randolph County Office Building, Randolph County Community College; Cole Auditorium, Richmond County Community College; former DSS Building, Catawba College; Old Library Building, Brevard College). Former North Carolina State Senator Ellie Kinnard, who resigned from office yesterday to fight the voter suppression law and help people get voter IDs, told Rachel Maddow that she believes the North Carolina GOP will try to shut down every one of them.
It’s also worth remembering that North Carolina’s strict voter ID law does not allow student IDs. “The depth and breadth of the anti-democratic policy is pretty stunning,” says Earls.
None of this would be happening if the Supreme Court hadn’t invalidated Section 4 of the Voting Rights Act, which previously covered forty of 100 counties in North Carolina. As Rick Hasen noted, the extreme voter suppression measures adopted in the state are a clear reason why Congress needs to strengthen the VRA.
UPDATE: The GOP elections chair in Forsyth County has walked back his vow to close an early voting site at Winston-Salem State University, for now. Reports the Winston-Salem Journal:
The chairman of the Forsyth County Board of Elections said Monday evening that the board will not make a decision Tuesday about an early voting site at Winston-Salem State University.
Ken Raymond told the Journal last week that he would try to eliminate the Anderson Center at WSSU as a site for early voting, and could move to do it as early as Tuesday’s meeting.
But Raymond, a Republican, said in an email Monday: “For the board to make a decision now would be very premature. And when we have the discussion, all of my concerns, which are well known, will be addressed.”
He said the decision would not be made by the board until next year.
The three questions that will decide the fate of the voting rights in North Carolina.
A supporter of the North Carolina NAACP holds stickers for those gathered in the House chamber of the North Carolina General Assembly, Wednesday, April 24, 2013. (AP Photo/Gerry Broome)
Three lawsuits have been filed challenging North Carolina’s new voter suppression law, which I called the worst in the nation and Rick Hasen says is the most restrictive since the passage of the Voting Rights Act in 1965. Now comes the question: Will the challenges be successful? Here are three factors that will decide the outcome in North Carolina and the future of the VRA and voting rights more broadly.
1. Can Section 2 replace Section 5 of the VRA?
Conservatives opposed to Section 5 of the Voting Rights Act strenuously made the argument before and after the Supreme Court’s decision in Shelby County v. Holder that Section 2 was an adequate replacement for Section 5, which forced states with the worst history of voting discrimination to approve their voting changes with the federal government. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” Chief Justice Roberts wrote for the majority. Testifying before the House, Hans van Spakovsky of the Heritage Foundation called Section 2 “the heart of the VRA” and said “there’s no reason for Congress to take any action” to resurrect Section 5 with a new coverage map.
This is a clever and disingenuous marketing job. In truth, Section 2 has been used mostly to challenge at-large election schemes and to protect majority-minority districts during redistricting, and has been narrowed in recent years by the Supreme Court, most recently in Bartlett v. Strickland in 2009. The Department of Justice hasn’t filed a Section 2 lawsuit since 2009 and no major voting restrictions were blocked under Section 2 during the last election. It’s difficult to challenge voting changes before they go into effect under Section 2 and the cases often take years and millions of dollars to defend. “This is one of the fixes we need from Congress,” says Spencer Overton, a professor at George Washington University Law School. “We need some better, clearer standards for Section 2. The law is not well-developed.” Moreover, the more cases that are filed under Section 2, the more likely it is that anti-VRA conservatives will challenge its constitutionality.
Under Section 5, the burden would have been on North Carolina to prove that its voting changes were not discriminatory. Given the overwhelming facts of disparate racial impact in the law, DOJ or the courts would have almost certainly blocked its implementation. The strong evidence of racial discrimination in this case shows the urgent need for Congress to resurrect Section 5.
The outcome under Section 2 “will depend on a lot of discretionary factors instead of a straightforward law, which is why Congress needs to update the VRA,” says Overton. “It’s uncharted territory, so no one really knows what will happen,” says Dale Ho, director of the ACLU’s voting rights project. The federal lawsuits have been assigned to Judge Thomas Schroeder of the Middle District of North Carolina, a George W. Bush appointee regarded as an establishment Republican.
2. Did North Carolina Republicans intentionally discriminate against minority voters?
Lawsuits brought by the North Carolina NAACP and the ACLU ask that North Carolina be covered under Section 3 of the VRA, so that they must seek federal approval of their voting changes for a period of time, based on a “preponderance of evidence” of intentional discrimination. DOJ recently asked a court to do this with Texas. “The General Assembly has discriminated against African Americans and other voters of color in violation of the Fourteenth Amendment, and thus coverage under Section 3(c) is mandated under the Voting Rights Act,” the ACLU plaintiffs in North Carolina write.
The lawsuits argue that clear evidence of the law’s discriminatory burden on African-Americans—who were disproportionately more likely to lack ID and to use early voting and same-day voter registration, for example—was presented during the legislative debate and that Republican sponsors of the bill did nothing to alter the legislation. “After Shelby County v. Holder, the courts are going to have to take these intent claims seriously,” says Penda Hair, co-director of the Advancement Project, which filed suit on behalf of the North Carolina NAACP.
But North Carolina could argue, like Texas, that its law was simply aimed at disenfranchising Democrats, not minorities, and thus is not intentionally discriminatory. Proving intentional discrimination in court is very difficult. One change Congress could easily make is for Section 3 to cover voting changes that have a discriminatory impact, not intent. Under that standard, North Carolina would almost certainly have to clear its voting changes with the feds for a period of time.
3. Will voter suppression efforts produce an electoral backlash among minority voters?
It’s almost considered a truism today that laws meant to disenfranchise minority voters will motivate more minority voters to cast a ballot in order to defend their most sacred right, since that’s what happened in 2012. But the backlash against voter suppression in the last election was the result of a number of unique factors: an extremely well-organized and well-funded Obama campaign, a poorly run Romney campaign that did almost no outreach to minority voters and the fact that many of the new voting restrictions were blocked or repealed in key battleground states like Ohio, Wisconsin and Pennsylvania.
We shouldn’t assume that such a backlash will become the new normal, especially as more onerous laws are put on the books in the wake of the Supreme Court’s decision. “The 2012 election was an anomaly, because of the candidate and campaign at the top of the ticket,” says Overton. “In primaries, off-year elections, midterms, the resources aren’t there to mobilize people to the polls.” And even if the impact of a new voting restriction is ultimately tempered or overcome, that doesn’t make attempts to restrict the right to vote any less immoral. “I hope there is a backlash,” says Hair. “I hope everyone is so angry in North Carolina about efforts to take away their right to vote that they redouble their efforts. But you shouldn’t have to redouble your efforts in order to vote.”
That said, North Carolina is one of the states where you could potentially see a higher turnout as a result of the legislature’s draconian overreach. First off, the Republican legislature is deeply unpopular, with a 20 percent approval rating, and so is the new voting bill, with 39 percent approving and 50 percent disapproving. Seventy percent of moderates and 72 percent of African-Americans dislike the legislation. Second, the well-organized Moral Monday coalition has been mobilizing people against the legislature’s actions for months and is strongly positioned to get a lot of people to the polls. Third, the litigation against the law will keep this story in the news and make more people aware of its onerous details. Fourth, there is a competitive Senate race in North Carolina that could decide the balance of power nationally, with Democrat Kay Hagan likely facing North Carolina Speaker of the House Thom Tillis, who was named “legislator of the year” by the American Legislative Exchange Council in 2011 and is closely tied to all of the unpopular legislation passed by the General Assembly.
Republicans have done everything possible, through aggressive racial gerrymandering and onerous new voting restrictions, to protect their majorities in 2014 and beyond. In so doing, they’ve alienated a large segment of the electorate. The next election will be a good test case of the extent to which power-hungry politicians can successfully manipulate the democratic process in order to thwart the will of the people.
CORRECTION: I initially wrote that Section 2 has been used mostly for redistricting, which isn't true. Of the 1,265 successful Section 2 challenges, according to voting rights historian Morgan Kousser, 70 percent challenged at-large elections, which have been used since the passage of the VRA to thwart growing minority voting power, and 12 percent related to redistricting. "What should be emphasized," says Kousser, "is a point that you and I and many others have made before: Section 5 has primarily stopped local changes, and Section 2 has stopped changes that were already in place or in areas not covered by Section 5. While it may be that big statewide redistricting and voter id changes will attract Section 2 lawsuits, election laws in small towns and rural areas, and even in substantial cities, will either go unnoticed or be ineffectively attacked or the expense will drain voting rights lawyers." It's also worth noting that 85 percent of DOJ objections under Section 5 were to local election changes that are unlikely to be challenged under Section 2.
A supporter of the North Carolina NAACP holds stickers for those gathered in the House chamber of the North Carolina General Assembly, Wednesday, April 24, 2013. (AP Photo/Gerry Broome)
Today, North Carolina Governor Pat McCrory signed the nation’s worst voter suppression law. The sweeping law requires strict government-issued photo ID to cast a ballot, cuts the number of early voting days by a week, eliminates same-day voter registration during the early voting period, makes it easier for vigilante poll watchers to challenge the validity of eligible voters and expands the influence of unregulated corporate money in state elections.
Two lawsuits were filed today challenging the voting restrictions as racially discriminatory in federal court under Section 2 of the Voting Rights Act. A third challenge, to the voter ID provision, will be filed in state court tomorrow morning.
The lawsuit brought by the North Carolina NAACP and the Advancement Project alleges that the law violates Section 2 and the Fourteenth and Fifteenth amendments because it “imposes unjustified and discriminatory electoral burdens on large segments of the state’s population and will cause the denial, dilution, and abridgement of African-Americans’ fundamental right to vote.” It alleges that five provisions of the law disproportionately impact African-American voters—the voter ID requirement, the cuts to early voting, the elimination of same-day voter registration, the refusal to count out-of-precinct provisional ballots, and the increase in the number of poll watchers.
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. “A staggering 70 percent of African-American voters who voted in the 2012 general election used early voting,” the lawsuit notes. It says that “race was a motivating factor in the law’s enactment” and that “the General Assembly enacted those provisions with knowledge and intent that such actions would affect African-American voters disproportionately.”
A separate lawsuit brought by the Southern Coalition for Social Justice and the ACLU on behalf of the League of Women Voters, Common Cause and the A. Philip Randolph Institute also alleges that the elimination of same-day registration, the cuts to early voting and the ban on out-of-precinct provisional ballots violate Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment because of their disparate racial impact. These changes will make North Carolina the new Florida when it comes to long lines and electoral chaos.
In addition, the Southern Coalition for Social Justice will file another lawsuit tomorrow [UPDATE: complaint filed on August 13] challenging the voter ID provision in state court, alleging that under Article 6, Section 1 of the North Carolina Constitution, the legislature doesn’t have the power to set new voter qualifications. The plaintiffs will include college students who will not be able to vote in North Carolina because they have out-of-state driver’s licenses and their student IDs will not be accepted, and elderly residents of the state who were not born in North Carolina and will have to pay to get a birth certificate to validate their identity, otherwise known as a poll tax, or they cannot get a birth certificate at all.
One of those people is Alberta Currie, a 78-year-old woman from Hope Mills, North Carolina. Currie was born at home with a midwife, like so many African-Americans in the Jim Crow South, and doesn’t have a birth certificate. Her driver’s license from Virginia is now expired. Though she’s voted consistently since 1956—back when African-Americans couldn’t even register to vote in the South or had to move to the back of the line when a white voter showed up at the polls—she could be disenfranchised by the new law. “I won’t have no rights if I can’t vote,” she says. The voter ID provision disproportionately impacts African-Americans (23 percent of registered voters but 34 percent of those without ID), women (54 percent of active voters but 66 percent of those without ID), the elderly (voters over 65 are 18 percent of active voters but 26 percent of those without ID) and students (13 percent of active voters but 16 percent of those without ID).
“North Carolina has a long and sad history of official discrimination against African Americans, including official discrimination in voting that has touched upon the right of African Americans and other people of color to register, vote, or otherwise participate in the democratic process,” notes the SCSJ and ACLU lawsuit. “Over the past 30 years in North Carolina, there have been over thirty successful cases brought under Section 2 of the Voting Rights Act and forty objections to discriminatory changes to voting laws lodged by the Department of Justice under Section 5 of the Voting Rights Act…. Based on concerns about intimidation at the polling place, the United States Justice Department sent federal observers to North Carolina.”
Groups are challenging the voting laws under Section 2 of the VRA, a nationwide prohibition on racial discrimination in voting, because Section 5 is no longer operable. Forty of one hundred counties in North Carolina were previously covered under Section 4 of the Voting Rights Act, which the Supreme Court invalidated in June, and would have needed to obtain federal approval for their voting changes. That would’ve been unlikely, given the clear evidence of disparate racial impact. The SCSJ/ACLU lawsuit asks the court to “bail in” North Carolina under Section 3 of the VRA, like the Justice Department recently did with Texas, so that it will have to approve future voting changes with the federal government.
Challenging voting restrictions like voter ID, cuts to early voting and the elimination of same-day registration under Section 2 is largely uncharted territory, since the bulk of previous Section 2 challenges applied to redistricting. The Department of Justice, for example, hasn’t brought a Section 2 case since 2009. According to the DOJ, “a plaintiff could establish a violation of the section if the evidence established that, in the context of the ‘totality of the circumstance of the local electoral process,’ the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.” In practice, Section 2 cases are expensive, lengthy and usually apply to voting changes already in effect.
But since the Supreme Court took away their most potent weapon for fighting voting discrimination, voting rights groups have no choice but to hope that the compelling and disturbing facts of this case persuade the courts to block the “monster” new law.
Within hours of Gov. Pat McCrory signing a Republican-backed bill this week making sweeping changes to the state’s voting laws, local elections boards in two college towns made moves that could make it harder for students to vote.
The Watauga County Board of Elections voted Monday to eliminate an early voting site and election-day polling precinct on the campus of Appalachian State University.
The Pasquotank County Board of Elections on Tuesday barred an Elizabeth City State University senior from running for city council, ruling his on-campus address couldn’t be used to establish local residency. Following the decision, the head of the county’s Republican Party said he plans to challenge the voter registrations of more students at the historically black university ahead of upcoming elections.
Remember, North Carolina Republicans initially considered eliminating the $2,500 child dependancy tax credit for the parents of students who voted where they go to school. I'm surprised they didn't just include an outright ban on student voting in the final bill.
First Wisconsin. Now North Carolina.
“Today is a triumph for freedom as huge as any victory that has ever been won on any battlefield,” President Lyndon Johnson said on August 6, 1965, when he signed the Voting Rights Act into law.
The VRA quickly became known as the most important piece of modern civil rights legislation and one of the most consequential laws ever passed by Congress. It led to the abolition of literacy tests and poll taxes; made possible the registration of millions of minority voters; forced states with a history of voting discrimination to clear electoral changes with the federal government to prevent future discrimination; and laid the foundation for generations of minority elected officials.
Inside the US Capitol Rotunda, LBJ announced the signing of the bill flanked by a bust of President Lincoln, who exactly 104 years earlier had signed the Confiscation Act freeing Confederate slaves. Among the many civil rights leaders present on that historic day forty-eight years ago was John Lewis, the 25-year-old chairman of the Student Nonviolent Coordinating Committee, who had nearly died four months earlier marching for the right to vote in Selma, Alabama. He was the only veteran of the “Bloody Sunday” march to attend the signing ceremony, as historian Gary May notes in his new history of the VRA, “Bending Toward Justice.” Lewis remembered that day in August 1965 as “a high point in modern American, probably the nation’s finest hour in terms of civil rights.”
Twenty-one years later, Lewis won election to Congress from Georgia’s 5th House district, representing the hometown of his idol Martin Luther King Jr. He has the pen LBJ gave him after signing the VRA framed in his Atlanta home and a bust of the thirty-sixth president in his Washington office. Without the VRA, there would be no Congressman Lewis or Senator Rubio or President Obama. “When Lyndon Johnson signed the Voting Rights Act,” Lewis said on a trip to Alabama in March, “he helped free and liberate all of us.”
Consider how the VRA transformed American democracy:
• In 1965, only 31 percent of eligible black voters were registered to vote the in the seven Southern states originally covered by the VRA, compared to 72 percent of white voters. The number of black registered voters was as low as 6.7 percent in Mississippi. In Selma, only 393 of 15,000 eligible black voters were registered when LBJ introduced the VRA in March 1965.
Today, 73 percent of black voters are registered to vote, according to the US Census and black voter turnout exceeded white turnout in 2012 for the first time in recorded history.
• In 1965, there were fewer than 500 black elected officials nationwide.
Today, there are more than 10,500.
• In 1965, there were only five black members of Congress.
Today, there are forty-four. The 113th Congress is the most diverse in history, with ninety-seven minority elected representatives.
• Since 1965, the Justice Department blocked at least 1,150 discriminatory voting changes from going into effect under Section 5 of the VRA.
Yet the Supreme Court’s decision in late June invalidating Section 4 of the VRA threatens to roll back much of the progress made over the past forty-eight years. Since the ruling, six Southern states previously covered under Section 4 have passed or implemented new voting restrictions, with North Carolina recently passing the country’s worst voter suppression law. The latest assault on the franchise comes on the heels of a presidential election in which voter suppression attempts played a starring role, with 180 bills introduced in forty-one states to restrict access to the ballot in 2011–12, which NAACP President Ben Jealous called “the greatest attacks on voting rights since segregation.” The broad scope of contemporary voting discrimination is why John Lewis testified before Congress last month that “the Voting Rights Act is needed now like never before.”
The spread of voter suppression efforts to states like Pennsylvania, where over 500,000 registered voters could be disenfranchised by a voter ID law before the courts, is a strong argument for expanding, not eliminating, the key provisions of the VRA. Sections 2 and 3 of the VRA, as currently written, are no substitute for Sections 4 and 5. Under Section 2, discriminatory voting changes can only be challenged after lengthy and expensive litigation, with the burden of proof on those facing discrimination. Under Section 3, a court has to find that a state (like Texas) was guilty of intentional discrimination, a very high bar to clear, in order to force it to approve its voting changes with the federal government for a period of time. Under Section 5, however, the states with the worst history of discrimination had to prove that their voting changes were not discriminatory before they became law. As Chief Justice Earl Warren wrote in 1966, the genius of the law was to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.”
The evil of voting discrimination remains all-too-common today, which is why Congress urgently needs to strengthen the VRA. Representative James Sensenbrenner (R-WI), the former chair of the House Judiciary Committee who presided over the overwhelming congressional reauthorization of the VRA in 2006, recently told CQ Roll Call, “There are a lot of Republicans who are [on board], but they don’t want to be publicly named.” If there is indeed a silent majority of Republicans who still support the VRA, let’s hope they speak up soon. Otherwise, on the fiftieth anniversary of the VRA in 2015, we may be mourning its demise instead of celebrating its transformational impact.