Ari Berman | The Nation

Ari Berman

Ari Berman

 On American politics and policy.

The Supreme Court’s Ideology: More Money, Less Voting

The Supreme Court

The Supreme Court.  (AP Photo/Evan Vucci)

In the past four years, under the leadership of Chief Justice John Roberts, the Supreme Court has made it far easier to buy an election and far harder to vote in one.

First came the Court’s 2010 decision in Citizens United v. FEC, which brought us the Super PAC era.

Then came the Court’s 2013 decision in Shelby County v. Holder, which gutted the centerpiece of the Voting Rights Act.

Now we have McCutcheon v. FEC, where the Court, in yet another controversial 5-4 opinion written by Roberts, struck down the limits on how much an individual can contribute to candidates, parties and political action committees. So instead of an individual donor being allowed to give $117,000 to campaigns, parties and PACs in an election cycle (the aggregate limit in 2012), they can now give up to $3.5 million, Andy Kroll of Mother Jones reports.

The Court’s conservative majority believes that the First Amendment gives wealthy donors and powerful corporations the carte blanche right to buy an election, but that the Fifteenth Amendment does not give Americans the right to vote free of racial discrimination.

These are not unrelated issues—the same people, like the Koch brothers, who favor unlimited secret money in US elections are the ones funding the effort to make it harder for people to vote. The net effect is an attempt to concentrate the power of the top 1 percent in the political process and to drown out the voices and votes of everyone else.

Consider these stats from Demos on the impact of Citizens United in the 2012 election:

· The top thirty-two Super PAC donors, giving an average of $9.9 million each, matched the $313.0 million that President Obama and Mitt Romney raised from all of their small donors combined—that’s at least 3.7 million people giving less than $200 each.

· Nearly 60 percent of Super PAC funding came from just 159 donors contributing at least $1 million. More than 93 percent of the money Super PACs raised came in contributions of at least $10,000—from just 3,318 donors, or the equivalent of 0.0011 percent of the US population.

· It would take 322,000 average-earning American families giving an equivalent share of their net worth to match the Adelsons’ $91.8 million in Super PAC contributions.

That trend is only going to get worse in the wake of the McCutcheon decision.

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Now consider what’s happened since Shelby County: eight states previously covered under Section 4 of the Voting Rights Act have passed or implemented new voting restrictions (Alabama, Arizona, Florida, Mississippi, Texas, Virginia, South Carolina and North Carolina). That has had a ripple effect elsewhere. According to The New York Times, “nine states [under GOP control] have passed measures making it harder to vote since the beginning of 2013.”

A country that expands the rights of the powerful to dominate the political process but does not protect fundament rights for all citizens doesn’t sound much like a functioning democracy to me.

Read Next: Ari Berman on why the Voting Rights Act is still needed.

GOP Steps Up Attack on Early Voting in Key Swing States

early voting

Early voting lines in Cleveland, 2012, taken by Ari Berman.

On Election Night 2012, referring to the long lines in states like Florida and Ohio, Barack Obama declared, “We have to fix that.”

The waits in Florida and Ohio were no accident, but rather the direct consequence of GOP efforts to curtail the number of days and hours that people had to vote. On January 22, 2014, the president’s bipartisan election commission released a comprehensive report detailing how voting could be smoother, faster and more convenient. It urged states to reduce long lines by adopting “measures to improve access to the polls through expansion of the period for voting before the traditional Election Day.”

That would seem like an uncontroversial and common sense suggestion, but too many GOP-controlled states continue to move in the opposite direction, reducing access to the ballot instead of expanding it. The most prominent recent examples are the swing states of Wisconsin and Ohio.

Yesterday Wisconsin Governor Scott Walker signed legislation eliminating early voting hours on weekends and nights, when it’s most convenient for many voters to go to the polls. When they took over state government in 2011, Wisconsin Republicans reduced the early voting period from three weeks to two weeks and only one weekend. Now they’ve eliminated weekend voting altogether.

Over 250,000 Wisconsinites voted early in 2012, one in twelve overall voters. Cutting early voting has a clear partisan purpose: those who voted early voted for Obama 58 to 41 percent in Wisconsin in 2012, compared to his 51 to 48 percent margin on Election Day. Extended early voting hours were particularly critical with respect to high voter turnout in big cities like Milwaukee and Madison. “It’s just sad when a political party has so lost faith in its ideas that it’s pouring all of its energy into election mechanics,” said Wisconsin GOP State Senator Dale Schultz, a critic of the legislation.

A month ago, Ohio passed legislation cutting early voting by a week, eliminating same-day voter registration and restricting the availability of absentee ballots while Secretary of State Jon Husted issued a directive doing away with early voting on weeknights and Sundays as well. 600,000 Ohioans, ten percent of the electorate, voted early in 2012. The cuts in Ohio, like Wisconsin, have a clear partisan and racial underpinning—in Cleveland, for example, African-Americans made up 56 percent of those who voted on weekends in 2008.

Republicans are adopting the early voting cuts under the guise of “uniformity”—claiming they want all counties to have the same hours, which punishes large urban counties if small rural counties don’t have the money or manpower for extended early voting hours.

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But few believe that’s the only reason why early voting is on the chopping block. Many Republicans are predictably reluctant to admit that the main reason they suddenly disfavor early voting is because too many Democrats are using it or because they actually believe, in the words of Jonah Goldberg, that “voting should be harder, not easier—for everybody.” (See Rick Hasen’s piece “The new conservative assault on early voting.”)

The latter argument was endorsed by Florida GOP State Senator Mike Bennett in 2011, who said: “I wouldn’t have any problem making it harder...I want the people of the state of Florida to want to vote as bad as that person in Africa who’s willing to walk 200 miles…This should not be easy.”

That view was widely repudiated in the aftermath of the 2012 election, when even Florida repealed its cutbacks to early voting. A move to significantly reduce early voting recently failed in the Georgia legislature, which can hardly be described as moderate. But Republicans in Ohio and Wisconsin are stuck on the disgraced idea that the best way to win an election is to make it harder for your opponents to participate in one.


Read Next: An in-depth look at the growing Moral Monday Movement

Willie Horton Politics: Senate Votes Against Civil Rights

Debo Adegbile

Debo Adegbile outside the Supreme Court on Feb. 27, 2013, after arguments in the Shelby County, Ala., v. Holder voting rights case. (AP Photo/Evan Vucci)

Today, the US Senate voted 47-52 not to confirm Debo Adegbile to head the Civil Rights Division of the Department of Justice. Every Republican senator and seven Democrats voted against Adegbile’s nomination.

Adegbile, the former director-counsel of the NAACP Legal Defense Fund, was superbly qualified for the position. He was endorsed by the American Bar Association and high-profile lawyers on both sides of the aisle, and presciently defended the Voting Rights Act before the Supreme Court last year. He would’ve made an excellent head of the Civil Rights Division.

But Adegbile was the victim of a vicious right-wing smear campaign, attacking him because LDF defended Mumia Abu Jamal’s right to a fair trial. All across the right-wing media echo chamber, on Fox News and conservative blogs, the words Adegbile and “cop-killer” were plastered in the headlines. The Fraternal Order of Police came out against his nomination, even though a court agreed with LDF that Abu Jamal had not been granted a fair trial—a basic right in American society regardless of whether he did or did not commit the crime.

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In disqualifying Adegbile, senators are establishing a very dangerous precedent that attorneys are responsibile for all of the actions of their clients. “LDF’s advocacy on behalf of Mr. Abu-Jamal does not disqualify Mr. Adegbile from leading the Civil Rights Division,” prominent members of the Supreme Court bar wrote to the Senate Judiciary Committee earlier this year. “To conclude otherwise would send the wrong message to any lawyer who is affiliated, or might be asked to become involved, with a difficult, unpopular case for the purpose of enforcing and preserving important constitutional principles.”

It’s understandable why every Republican senator lined up against Adegbile’s nomination—the modern GOP has voted against civil rights time and time again. But the opposition of Democrats Casey, Coons, Donnelly, Heitkamp, Manchin, Pryor and Walsh is more shameful (Harry Reid voted no for procedural reasons, to keep the nomination alive). The idea that voting against the nomination of the head of the DOJ Civil Rights Division would swing a close race is laughable. Casey and Coons deserve particular scorn, since they represent safe blue states and both profess to be supporters of the causes Adegbile supports, like voting rights.

Today’s vote shows that, twenty-six years after George Bush ran the infamous Willie Horton ad against Michael Dukakis, race-based gutter politics is still not a thing of the past. As the Los Angeles Times wrote, “Adegbile deserves better.”


Read Next: Ari Berman on the Voting Rights Amendment Act of 2014.

North Carolina’s Moral Monday Movement Kicks Off 2014 With a Massive Rally in Raleigh

On Stage at Moral Monday

The stage at the inaugural 2014 Moral Mondays protest in Raleigh, North Carolina. Photo by Ari Berman.

On February 1, 1960, four black students at North Carolina A&T kicked off the 1960s civil rights movement by trying to eat at a segregated lunch counter at Woolworth’s in downtown Greensboro. Two months later, young activists founded the Student Nonviolent Coordinating Committee  at Shaw University in Raleigh, which would transform the South through sit-ins, Freedom Rides and voter registration drives.

So it was fitting that North Carolina’s Moral Monday movement held a massive “Moral March” in Raleigh today which began at Shaw University, exactly fifty-four years after North Carolina’s trailblazing role in the civil rights movement. Tens of thousands of activists—from all backgrounds, races and causes—marched from Shaw to the North Carolina State Capitol, where they held an exuberant rally protesting the right-wing policies of the North Carolina government and commemorating the eighth anniversary of the HKonJ coalition (the acronym stands for Historic Thousands on Jones Street, where the NC legislature sits).

The day began cold and cloudy, a fitting metaphor for politics in North Carolina last year. Since taking over the legislature in 2010 and the governor’s mansion in 2012, controlling state government for the first time in over a century, North Carolina Republicans eliminated the earned-income tax credit for 900,000 North Carolinians; refused Medicaid coverage for 500,000; ended federal unemployment benefits for 170,000; cut pre-K for 30,000 kids while shifting $90 million from public education to voucher schools; slashed taxes for the top 5 percent while raising taxes on the bottom 95 percent; axed public financing of judicial races; prohibited death row inmates from challenging racially discriminatory verdicts; passed one of the country’s most draconian anti-choice laws; and enacted the country’s worst voter suppression law, which mandates strict voter ID, cuts early voting and eliminates same-day registration, among other things.

The fierce reaction against these policies led to the Moral Monday movement, when nearly 1,000 activists were arrested for nonviolent civil disobedience inside the North Carolina General Assembly. Rallies were held in more than thirty cities across the state and the approval ratings of North Carolina Republicans fell into the toilet. Sample signs at today’s rally: “OMG, GOP, WTF. It’s 2014, not 1954!!!” “Welcome to North Carolina. Turn Your Watch Back 50 Years!” (See my Twitter feed for photos of the rally.)

The Moral Monday protests transformed North Carolina politics in 2013, building a multiracial, multi-issue movement centered around social justice such as the South hadn’t seen since the 1960s. “We have come to say to the extremists, who ignore the common good and have chosen the low road, your actions have worked in reverse,” said Reverend William Barber II, president of the North Carolina NAACP and the leader of the Moral Monday movement, in his boisterous keynote speech. “You may have thought you were going to discourage us, but instead you have encouraged us. The more you push us back, the more we will fight to go forward. The more you try to oppress us, the more you will inspire us.”

If today’s rally was any indication, the Moral Monday movement will be bigger and broader in 2014. An estimated 15,000 activists attended the HKonJ rally last year, bringing thirty buses; this year, the NC NAACP estimated that 80,000 to 100,000 people rallied in Raleigh, with 100 buses converging from all over the state and country. It was the largest civil rights rally in the South since tens of thousands of voting rights activists marched from Selma to Montgomery in support of the Voting Rights Act.

“This Moral March inaugurates a fresh year of grassroots empowerment, voter education, litigation and non-violent direct action,” Barber said. There will be a new wave of direct action protests when the North Carolina legislature returns in the spring, a new wave of activists doing voter mobilization and registration during the “Freedom Summer 2014,” and litigation challenging North Carolina’s voter suppression bill. The movement will be active in the streets, in the courtroom and at the ballot box. They will be focused not just on changing minds, but on changing outcomes.

To that end, the HKonJ coalition called for five demands:

• Secure pro-labor, anti-poverty policies that insure economic sustainability;

• Provide well-funded, quality public education for all;

• Stand up for the health of every North Carolinian by promoting health care access and environmental justice across all the state's communities;

• Address the continuing inequalities in the criminal justice system and ensure equality under the law for every person, regardless of race, class, creed, documentation or sexual preference;

• Protect and expand voting rights for people of color, women, immigrants, the elderly and students to safeguard fair democratic representation.

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Barber has frequently called North Carolina “a state fight with national implications,” and that message has started to break through nationally. Moral Monday spinoffs have begun in Georgia and South Carolina, and national progressive leaders like Randi Weingarten of the American Federation of Teachers traveled to Raleigh to lend their support today. “This is a movement, not a moment” is a frequent refrain among Moral Monday activists. “This was just the beginning,” Barber said after the rally. “We did not come all this way just to go home.” Barber just wrapped up a sixteen-city tour of the state last week. He’ll hit the road again next week.

By the end of the rally, the sun had finally come out. “Even the universe is blessing us,” Barber said.

Read Next: Ari Berman on the fight over voting rights in North Carolina.

Pennsylvania Ruling Shows the Problem With Voter ID Laws

Pennsylvania DMV

At a DMV location in downtown Philadelphia in September 2012, some 100 people waited in lines that endured for over an hour. (Courtesy of Ari Berman)

Judge Bernard McGinley of the Commonwealth Court of Pennsylvania ruled against the state’s strict voter ID law today following a lengthy trial last summer. The law had been temporarily blocked since last October pending a full trial. The ruling is a big win for voting rights and a clear setback for voter ID supporters.

Judge McGinley found that the law violated the state constitution because hundreds of thousands of registered voters lacked the restrictive forms of ID required by the state, few had obtained the requisite ID since the law’s passage in March 2012, the state had not made it easy to get an ID and there was no evidence of in-person voter fraud to justify the burdens of the law.

“Hundreds of thousands of electors in Pennsylvania lack compliant ID,” McGinley wrote. “Enforcement of the Voter ID Law as to these electors has the effect of disenfranchising them through no fault of their own. Inescapably, the Voter ID law infringes upon qualified electors’ right to vote.”

Noted McGinley: “In contrast to the hundreds of thousands who lack compliant photo ID, only 17,000 photo IDs for voting purposes have been issued.” Since the 2012 election, fewer than 150 new voting IDs had been issued by the state per month.

That’s because getting a voter ID in Pennsylvania was a bureaucratic nightmare. There are 9,300 polling places in the state, but only seventy-one DMV offices. There are only five DMV offices for the entire city of Philadelphia, none in nine counties and the in sixteen counties offices are only open one or two days a week . “The Voter ID Law does not contain, on its face, any valid non-burdensome means of providing compliant photo ID to qualified electors,” McGinley wrote. “Accordingly, the Voter ID Law is facially unconstitutional.” The lead plaintiff in the case, Viviette Applewhite, was a 93-year-old great-great grandmother who marched with Martin Luther King Jr. and had voted in every election for the past fifty years but did not have a driver’s license and was at risk of being disenfranchised by the new law.

Nor did the state present evidence to justify the new voter ID law. The state “wholly failed to show any evidence of in-person voter fraud,” McGinley wrote. “Certainly a vague concern about voter fraud does not rise to a level that justifies the burdens construction here. Therefore, this Court does not find in-person voter fraud a compelling interest the Voter ID Law was designed to serve.”

As I’ve written before, the devil is in the details when it comes to voter ID laws and other sophisticated, restrictive voting measures being introduced today. McGinley’s ruling “dispelled the myth that voter ID is commonplace and that everyone who needs an ID has one,” said Michael Rubin, an attorney with Arnold & Porter who argued against the law.

Pennsylvania became a case study for the problems with voter ID laws. “The Voter ID Law as written suggests a legislative disconnect from reality,” McGinley wrote.

Indeed, one had the sneaking suspicion that Pennsylvania’s GOP legislature passed the law for political reasons, not because of a good-faith desire to remedy the nonexistent problem of in-person voter impersonation. Pennsylvania House Majority Leader Mike Turzai infamously remarked in 2012 that the voter ID law “is gonna allow Governor Romney to win the state of Pennsylvania.” Following the election, the chair of the Pennsylvania Republican Party said: “Think about this, we cut Obama by 5%, which was big. A lot of people lost sight of that. He won, he beat McCain by 10%, he only beat Romney by 5%. I think that probably Voter ID had helped a bit in that.”

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The state will likely appeal today's verdict to the Pennsylvania Supreme Court. But there’s little evidence to suggest that the higher court will reverse the lower court’s ruling. The Pennsylvania Supreme Court in a 4-2 decision in September 2012 vacated a lower court ruling originally upholding the voter ID law and found a “disconnect between what the Law prescribes and how it is being implemented.”

What effect will the Pennsylvania ruling have in other trials against voter ID laws? Not much, argues law professor Rick Hasen. Pennsylvania’s law was blocked in state court, while challenges to voter ID laws in Wisconsin, North Carolina and Texas were filed under Section 2 of the Voting Rights Act, which requires the plaintiffs to show persuasive evidence of racial discrimination. [Update: The Southern Coalition for Social Justice is also challenging North Carolina's voter ID law in state court.]

But the substance here matters a lot. The new Voting Rights Act amendments introduced in Congress yesterday treat voter ID laws differently than other forms of voting restrictions, implying that voter ID laws aren’t as bad. Today’s Pennsylvania ruling suggests just the opposite. “Voting laws are designed to assure a free and fair election,” wrote McGinley. “The Voter ID Law does not further this goal.”

Read Next: Ari Berman on the recent Voting Rights Act amendments.

Members of Congress Introduce a New Fix for the Voting Rights Act

Voting Rights

Marchers at the 50th anniversary commemoration of the March on Washington, August 24, 2013. (Reuters/James Lawler Duggan)

Today Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) and Senator Patrick Leahy (D-VT) introduced legislation to strengthen the Voting Rights Act of 1965 in the wake of the Supreme Court’s decision last June invalidating a critical section of the VRA. The legislation, known as “The Voting Rights Amendment Act of 2014,” represents the first attempt by a bipartisan group in Congress to reinstate the vital protections of the VRA that the Supreme Court took away.

In the Shelby County v. Holder ruling on June 25, 2013, the Court’s conservative majority struck down Section 4 of the VRA, the formula that compelled specific states with a well-documented history of voting discrimination to clear their voting changes with the federal government under Section 5 of the VRA. The two provisions were always meant to work together; without Section 4, Section 5 became a zombie, applying to zero states.

Section 4 covered nine states (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia) and parts of six others (in California, Florida, Michigan, New York, North Carolina, South Dakota) based on evidence of voting discrimination against blacks and other minority groups dating back to the 1960s and 1970s. Since the Shelby decision, eight states previously covered under Section 4 have passed or implemented new voting restrictions. This includes onerous new laws in states like North Carolina and Texas, which the Justice Department objected to under other provisions of the VRA (Sections 2 and 3).

The Sensenbrenner-Conyers-Leahy bill strengthens the VRA in five distinct ways:

1: The legislation draws a new coverage formula for Section 4, thereby resurrecting Section 5. States with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval. This new formula would currently apply to Georgia, Louisiana, Mississippi and Texas. Local jurisdictions would be covered if they commit three or more violations or have one violation and “persistent, extremely low minority turnout” over the past fifteen years.

The formula is based on a rolling calendar, updated with a current fifteen-year time period to exempt states who are no longer discriminating or add new ones who are, creating a deterrent against future voting rights violations. It’s based on empirical conditions and current data, not geography or a fixed time period—which voting rights advocates hope will satisfy Chief Justice John Roberts should the new legislation be enacted and reach the Supreme Court.

The new Section 4 proposal is far from perfect. It does not apply to states with an extensive record of voting discrimination, like Alabama (where civil rights protests in Selma gave birth to the VRA), Arizona, Florida, North Carolina, South Carolina and Virginia, which were previously subject to Section 5. Nor does it apply to states like Ohio, Pennsylvania and Wisconsin that have enacted new voting restrictions in the past few years.

Moreover, Department of Justice objections to voter ID laws will not count as a new violation. Voter ID laws can still be blocked by DOJ in the new states covered under Section 4, but that will not be included as one of the five violations needed to keep the state covered. This exemption for voter ID laws was written to win the support of House majority leader Eric Cantor and other Republicans. [UPDATE: The preceding paragraphs were updated to reflect a correction. DOJ objections against voter ID laws will not count as a new violation, but federal court judgments will. So, from a voting rights perspective, this exemption is not as bad as previously reported.]

2: The legislation strengthens Section 3 of the VRA, which has been described as the Act’s “secret weapon.” Under Section 3, jurisdictions not covered by Section 4 could be “bailed-in” to federal supervision, but plaintiffs had to show evidence of intentional voting discrimination, which is very difficult to do in court. Under the new Section 3 proposal, any violation of the VRA or federal voting rights law—whether intentional or not—can be grounds for a bail-in, which will make it far easier to cover new states. (One major caveat, again, is that court objections to voter ID laws that are not found to be intentionally discriminatory cannot be used as grounds for “bail-in” under Section 3.)

3: The legislation mandates that jurisdictions in all fifty states have to provide notice in the local media and online of any election procedures related to redistricting, changes within 180 days of a federal election and the moving of a polling place. This will make it easier for citizens to identify potentially harmful voting changes in the forty-six states not subject to Sections 4 and 5.

4: The legislation makes it easier to seek a preliminary injunction against a potentially discriminatory voting law. Plaintiffs will now only have to show that the hardship to them outweighs the hardship to the state if a law is blocked in court pending a full trial. There will be a preliminary injunction hearing on North Carolina’s voting law in July 2014, before the full trial takes place July 2015.

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5: The legislation reaffirms that the attorney general can send federal observers to monitor elections in states subject to Section 4 and expands the AG’s authority to send observers to jurisdictions with a history of discriminating against language minority groups, which includes parts of twenty-five states.

The bill is certain to have its critics, including on the left. Voting rights supporters will argue, justifiably, that the new Section 4 formula does not apply to enough states and wrongly treats voter ID laws differently than other discriminatory voting changes. Despite these flaws, the legislation represents a significant improvement over the disastrous post-Shelby status quo, which has seen states like North Carolina and Texas rush to pass or implement blatantly discriminatory voting restrictions after being freed from federal oversight. The legislation strengthens voting rights protections in a number of tangible ways and gives the federal government and voting rights advocates new tools to combat voting discrimination.

The sponsors of the bill have a lot of credibility on this issue. Sensenbrenner, as chairman of the House Judiciary Committee, shepherded through the 2006 reauthorization of the VRA—which passed 390-33 in the House and 98-0 in the Senate. Conyers first entered Congress in 1965, the year of the VRA’s passage, and has served on the House Judiciary Committee ever since. Leahy is chairman of the Senate Judiciary Committee and has recently worked with Sensenbrenner on reforming the NSA.

The problem of contemporary voting discrimination ultimately requires a solution that only Congress can provide. It was Congress, after all, that passed the VRA in 1965 in response to the failure of litigation to stop the mass disenfranchisement of black voters in the South. Yes, yes, I realize that a Congress that can scarcely do more than name a Post Office nowadays is not likely to resurrect the VRA any time soon—especially when so much of the GOP is devoted to erecting new barriers to the ballot box. But now that there’s legislation on the table, members of Congress face a choice: Do you want to make it easier or harder for people to vote? The question, and answer, is really that simple.


Read Next: Ari Berman on why the Voting Rights Act is still needed.

North Carolina Shows Why the Voting Rights Act Is Still Needed

counting ballots

Poll workers reviewing ballots in Charlotte, North Carolina, November 6, 2012. (Reuters/Chris Keane)

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.

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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.

Ohio GOP Resurrects Voter Suppression Efforts

Ohio early voting

An early voting center in Columbus, Ohio October 30, 2012. (Reuters/Eric Thayer) 

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.”

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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.

Voter Suppression Backfires in North Carolina, Spreads in Texas

N.C. Board of Elections demonstration

Shortly after passing the country’s worst voter suppression law, North Carolina Republicans targeted student voting.

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.

Texas Voter ID Law Ensnares Former Speaker of the House, Candidates for Governor, State Judge

Greg Abbott

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.

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(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.

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