On American politics and policy.
The IRS is under siege for investigating conservative political groups applying for tax-exempt status. But the real problem wasn’t that the IRS was too aggressive. It was that the agency focused on the wrong people—“none of those groups were big spenders on political advertising; most were local Tea Party organizations with shoestring budgets,” writes The New York Times—and wasn’t aggressive enough. The outrage that Washington should be talking about—what my colleague Chris Hayes calls “the scandal behind the scandal”—is how the Citizens United decision has unleashed a flood of secret spending in US elections that the IRS and other regulatory agencies in Washington, like the Federal Election Commission, have been unwilling or unable to stem.
501c4 “social welfare” groups like Karl Rove’s Crossroads GPS, the Koch brothers’ Americans for Prosperity and Grover Norquist’s Americans for Tax Reform—which don’t have to disclose their donors—spent more than $250 million during the last election. “Of outside spending reported to the FEC, 31 percent was ‘secret spending,’ coming from organizations that are not required to disclose the original sources of their funds,” writes Demos. “Further analysis shows that dark money groups accounted for 58 percent of funds spent by outside groups on presidential television ads [$328 million in total].”
IRS guidelines for 501c4 groups state that “the promotion of social welfare does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office…a section 501(c)(4) social welfare organization may engage in some political activities, so long as that is not its primary activity.” It’s ludicrous for groups like Crossroads GPS—which spent at least $70 million during the last election—to claim that its primary purpose is not political activity. Only the likes of Karl Rove would believe that running attack ads against President Obama qualifies as social welfare.
So what did the IRS do about this blatant abuse of the tax code by some of the country’s top corporations and richest individuals? Virtually nothing. “When it comes to political spending, the IRS is more like a toothless tiger,” wrote Ken Vogel and Tarini Parti last year in a story headlined, “The IRS’s ‘feeble’ grip on big political cash.”
It’s obvious that our Wild West campaign-finance system needs more, not less, scrutiny and much tighter, not looser, regulation. Yet conservative groups are exploiting the IRS scandal to further dilute regulatory agencies that are already on life support. Writes Andy Kroll of Mother Jones:
The IRS’s tea party scandal, however, could hinder the agency’s willingness to ensure politically active nonprofits obey the law. The IRS will likely operate on this front with even more caution, taking pains not to appear biased or too aggressive. That in turn could cause the agency to shy away from uncovering 501(c)(4) organizations that do in fact abuse their tax-exempt status by focusing primarily on politics.
The Rove’s of the world would like nothing more than for the public to believe that conservative groups had too few opportunities to influence the 2012 election and were wrongly persecuted by evil Washington bureaucrats. Yet the 2012 election should have taught us precisely the opposite lesson—that our patchwork regulatory system is far from equipped to deal with the new Gilded Age unleashed by Citizens United. As Rep. Keith Ellison told Hayes last night: “We need to redouble our efforts to bring real campaign-finance reform forward.”
Read Ari Berman on why North Carolina’s voter ID bill is reminiscent of a poll tax. The bill has since passed state House of Representatives.
The voter suppression efforts that spread nationwide during the last election have continued in 2013. Seventy-five new voting restrictions have been introduced in thirty states so far in 2013, according to the Brennan Center for Justice. Among all the states, North Carolina, which elected a Republican legislature in 2010 for the first time since the McKinley administration and a Republican governor in 2012, is currently taking voter suppression to brazen new extreme.
North Carolina Republicans have introduced a series of bills in the legislature that would require state-issued photo ID to cast a ballot, drastically cut early voting, eliminate same-day voter registration, end straight-ticket voting, penalize families of students who register to vote where they go to college, rescind the automatic restoration of voting rights for ex-felons, and ban “incompetent” voters from the polls. The legislation has been dubbed the "Screw the Voter Act of 2013” and "The Longer Lines to Vote Bill." The goal is to make this racially integrated swing state a solidly red bastion for the next decade and beyond.
Here are the seven ways that North Carolina Republicans are trying to make it harder to vote:
1. Requiring state-issued photo ID to cast ballot. Under legislation introduced yesterday, a government-issued photo ID, a state employee photo ID or a student ID from a public university would be required to vote. The strict voter ID law would go into effect in January 2016, just in time for the next presidential election. Voters over the age of 70 would be able to use the ID they had when they turned 70, even if it’s expired, which brings to mind the days of the “grandfather clause” that was used to disenfranchise blacks following the end of Reconstruction.
Other states with strict voter ID laws provide a free state ID (even though the underlying documents needed to obtain the ID, like a birth certificate, cost money), but in North Carolina the voter ID would cost $10, which is eerily reminiscent of a poll tax. A free ID can only be obtained by signing an affidavit, under the penalty of perjury, citing financial hardship. “How is somebody going to know they are signing an affidavit that is going to open them up to possible perjury convictions?” asks Anita Earls, executive director of the Durham-based Southern Coalition for Social Justice and a prominent civil rights attorney. Twenty-eight percent of African-Americans and 34 percent of Latinos live in poverty in North Carolina.
Over 7 percent of registered voters in North Carolina, 481,109 to be exact, don’t have a driver’s license or a state-issued photo ID, according to the state’s own data. Fifty-five percent of registered voters without photo ID are Democrats. African-Americans make up 22 percent of registered voters in the state, but a third of all registered voters without ID. Exit polling conducted by Southern Coalition for Social Justice in six counties in 2012 found that 8.8 percent of voters had no form of photo ID and that a majority of those who lacked any photo ID were African-American.
In North Carolina, as in the rest of the country, voter impersonation fraud, which the ID law is supposedly designed to stop, is incredibly rare. There were just two cases of voter impersonation prosecuted between 2000 and 2010. In the 2008 election, “out of 4.35 million votes cast, only one case of in-person voter fraud was identified,” writes Allison Riggs of the Southern Coalition for Social Justice. “That’s a rate of 0.00000023 percent.”
2. Cutting early voting. New legislation would reduce the early voting period in North Carolina from two-and-a-half weeks to just one week and would eliminate voting on the last Sunday of early voting, when African-American churches hold “Souls to the Polls” get-out-the-vote drives. The legislation would also limit early voting locations to one site per county, which is a recipe for much longer lines. In Charlotte’s Mecklenburg County, for example, there were 22 early voting locations in 2012.
Fifty-six percent of North Carolinians voted early during the 2012 election. Blacks used early voting at a higher rate than whites, comprising a majority of those who voted absentee or early. According to Public Policy Polling, 78 percent of North Carolinians support the current early voting system and 75 percent have used it in the past.
3. Ending same day registration during early voting. Over 155,000 voters registered to vote and voted on the same day during the early voting period in 2012. “Voters expressed their satisfaction and gratitude that North Carolina had a process that afforded citizens with more opportunities to register and vote,” said a 2009 report from the state board of elections. Ending same-day registration will almost certainly decrease voter turnout in North Carolina and make voting more inconvenient.
4. Penalizing parents of students who register to vote where they go to college. The most extreme proposal of all the new voting restrictions would eliminate the $2,500 child dependency tax deduction for parents of college students who vote where they attend school. “This would mean that voter drives, marches to the polls (i.e. anything that inspires a young person to exercise their constitutional right in their college town) will carry a hefty tax penalty for their parents,” writes Rob Schofield, policy director of NC Policy Watch. This harsh penalty for student political activity is likely unconstitutional.
5. Disenfranchising ex-felons. New legislation would prevent ex-felons from receiving their voting rights after serving their time and would instead force them to wait five years, apply to the board of elections and receive unanimous approval in order to re-enter the political process. “Approval depends on the unanimous consent of local board of elections members and two affidavits from local voters about your ‘upstanding moral character,’” writes Bob Hall of Democracy North Carolina. Five times as many blacks as whites have a criminal record in North Carolina and could be disenfranchised for years under this new proposal.
6. Banning “incompetent” voters from the polls. Anyone given such a designation from the state will be unable to cast a ballot, “even if the person’s mental health issues have nothing to do with their abilities to understand voting,” writes Rob Schofield.
7. Ending straight-ticket voting. In 2012, 1.4 million Democrats and 1.1 million Republicans in North Carolina voted a straight-party ticket. Eliminating this convenient form of voting will likely hurt Democrats in down-ballot races.
These restrictions amount to nothing less than an old-fashioned power grab from North Carolina Republicans. As House Majority Leader Edgar Starnes put it, “The Republicans won the election. We are in control. We intend to elect Republicans and appoint Republicans, and we make no apology for it.”
Yet North Carolina is becoming increasingly diverse and more competitive in presidential elections. People of color accounted for 61 percent of the state’s 1.5 million new residents over the past decade. Since 2008, the black and Hispanic share of eligible voters in North Carolina has grown by 2.5 percent, while the percentage of the white vote has decreased by a similar margin. North Carolina has the largest population of African-Americans of any swing state. The aim of the new voting restrictions is to dampen the turnout of young and minority voters in order to consolidate power for conservative big-money interests. “Following the 2012 election, the Republican strategy is ‘if we can’t win national elections, we’re going to sew up everything at the state and local level,’’’ says Anita Earls.
The takeover of the North Carolina legislature is a case in point. The Republican State Leadership Committee, a conservative 527 funded by groups like the Chamber of Commerce, the Koch brothers and Karl Rove’s American Crossroads, spent $1.2 million on state legislative races in North Carolina in 2010. One of the group’s largest funders in North Carolina was Art Pope, a furniture magnate who has bankrolled much of the state’s conservative movement and is close allies with Charles and David Koch. Pope and Pope-supported entities spent $2.2 million on twenty-two state legislative races in 2010, winning eighteen. After the election, the GOP redistricting committees hired the RSLC’s redistricting expert, Tom Hofeller, to gerrymander North Carolina’s districts. “The new North Carolina legislative lines take the cake for the most grotesquely drawn districts I’ve ever seen,” said Jeff Wice, a Democratic redistricting lawyer in Washington. (The racially discriminatory maps are now being challenged in state court.)
As a result, Republicans control a hefty majority in the legislature, and Pope is deputy budget director under GOP Governor Pat McCrory. One of the key sponsors of the new voting restrictions, freshman Sen. Bill Cook, received $104,836 from Pope and Pope-allied groups during his 2012 election race. Moreover, “the John W. Pope Civitas Institute, which receives more than 90 percent of its funding from Pope's family foundation, has been the state's leading policy advocate for voter ID restrictions and dismantling the state's clean elections programs,” writes Chris Kromm, director of the Institute for Southern Studies. Thirty-three members of the North Carolina general assembly are also members of the American Legislative Exchange Council, which has distributed draft voter ID legislation for GOP legislators. ALEC named North Carolina Speaker of the House Thom Tillis a “Legislator of the Year” in 2011.
Forty of one hundred counties in North Carolina are subject to Section 5 of the Voting Rights Act and must have their voting changes approved by the federal government. The central contention of opponents of Section 5 is that the South has changed to the point where constitutional protections for minority voters are no longer needed. But recent evidence, like the flurry of legislation introduced in North Carolina this week, shows that past remains present to a disturbing degree in the South. Eight of eleven states in the Old South have now passed voter ID laws that disproportionately impact voters of color. The first states to pass new voter ID laws in 2013 were Virginia and Arkansas. North Carolina is likely to soon follow suit. It would be particularly ironic if the Supreme Court overturned Section 5 at a time when voter suppression efforts are spreading throughout the South in ways unseen since the Jim Crow era.
Just this week, North Carolina Republicans proposed adopting an official religion for the state, counties and towns. Soon enough, they’ll once again be limiting the franchise to white male Christian property owners.
Read more on the states that have drafted voter suppression measures in Ari Berman's last post.
So far this year, fifty-five new voting restrictions have been proposed, including bills requiring government-issued photo ID in many states. (AP Photo/Keith Sracocic.)
In 2011 and 2012, 180 new voting restrictions were introduced in forty-one states. Ultimately, twenty-five laws and two executive actions were passed in nineteen states following the 2010 election to make it harder to vote. In many cases, these laws backfired on their Republican sponsors. The courts blocked ten of them, and young and minority voters—the prime target of the restrictions—formed a larger share of the electorate in 2012 than in 2008.
Despite the GOP’s avowal to reach out to new constituencies following the 2012 election, Republican state legislators have continued to support new voting restrictions in 2013. According to a report by Project Vote, fifty-five new voting restrictions have been introduced in thirty states so far this year. “The 2013 legislative season has once again brought an onslaught of bills to restrict access to the ballot, including proposals to undercut important election laws that have recently opened the electorate to more voters,” writes Erin Ferns Lee. These measures include “strict photo ID policies…voter registration restrictions; voter purges; [felon] disenfranchisement; and policies to cut back or revoke voting laws that have made voting more convenient.” By my count, 235 new voting restrictions have been introduced in forty-four states over the past three years.
Here’s the breakdown of where such laws have been introduced in 2013.
• Mandating a government-issued photo ID to cast a ballot: Arkansas, Connecticut, Iowa, Illinois, Massachusetts, Maryland, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Virginia, Washington, West Virginia, Washington, Wyoming
• Restricting voter registration drives: Illinois, Indiana, Montana, New Mexico, Virginia
• Banning election-day voter registration: California, Minnesota, Montana, Nebraska
• Requiring proof of citizenship to register to vote: Massachusetts, Missouri, Nevada, Oklahoma, Oregon, South Carolina, Texas, Virginia
• Purging the voter rolls: Colorado, Indiana, New Mexico, Texas, Virginia
• Reducing early voting: Arizona, Indiana, South Carolina, Texas, Wisconsin
• Disenfranchising ex-felons: Virginia.
(On the plus side, thirty states have also introduced measures to make voting easier by adopting online voter registration, election-day registration, expanded early voting and the restoration of voting rights for ex-felons.)
Most of these measures are still pending before state legislatures, but Virginia, which has gubernatorial and legislative elections this year, is leading the way in enacting new voting restrictions. On January 21, 2013, as Virginia State Senator Henry Marsh, a longtime civil rights activist, attended President Obama’s second inauguration on Martin Luther King Day, the deadlocked Virginia Senate took advantage of Marsh’s absence to pass a new redistricting map that reduced Democratic seats by diluting black voting strength in at least eight districts. The measure was ultimately defeated in the Virginia House, but the move set the tone on voting rights for the legislative session.
On Tuesday morning, as the nation followed the debate over Proposition 8 at the Supreme Court, Virginia Governor Bob McDonnell signed a strict voter ID bill. In the last election, Virginians could vote by showing a number of different IDs, including a utility bill, a Social Security card or, this being the South, a concealed handgun permit. The new law restricts the forms of acceptable ID to a driver’s license, a passport, a state-issued photo ID card, a student ID with a photo on it or an employee photo ID. The Commonwealth Institute, a progressive research group, estimates that 869,000 registered voters in Virginia may lack these forms of photo ID, and says the new law will cost the state anywhere from $7 to $21 million to implement.
McDonnell’s spokesman called the photo ID law “a reasonable effort to protect the sanctity of our democratic process.” Yet the measure will likely only exacerbate the existing problems in Virginia’s election system, according to voting rights experts. In the last election, Virginia voters waited up to seven hours to cast a ballot. “Long lines across the state were a result of insufficient resources, poor allocation of resources that did exist, and frequent breakdowns of aging voting equipment,” according to a post-election report by the Election Protection coalition.
Moreover, study after study has shown that voter ID laws disproportionately impact young and minority voters. Not only are these constituencies less likely to have photo ID, but even in states without ID laws, black and Hispanic youth were significantly more likely than whites to be asked to show ID. According to a Politico write-up of a new report by political scientists at the University of Chicago and Washington University, “17.3 percent of black youth and 8.1 percent of Latino youth said their lack of adequate ID kept them from voting, compared with just 4.7 percent of white youth.” Mamie Locke, chairman of the Virginia Black Legislative Caucus, called the ID law “a continuation of attempts by Republicans to suppress the vote of individuals who are not likely to support their right wing agenda.”
Nor is voter fraud a rampant problem in Virginia, as supporters of the voter ID law suggest. There have been only thirty-five cases of alleged election fraud since 2000 in the state, according to an exhaustive survey by News21, and only five cases led to plea deals or convictions. Ironically, the one major case of election fraud in the state last year concerned a GOP firm charged with dumping voter registration forms.
Virginia must receive approval for its election change from the federal government under Section 5 of the Voting Rights Act. The new voting restrictions enacted in Virginia and introduced elsewhere across the country show why Section 5 is still very much needed. If anything, the statute should be expanded in light of contemporary voter suppression efforts, not eliminated.
Virginia is quickly becoming the new Florida when it comes to electoral dysfunction. Like Florida, Virginia also passed new laws this year to restrict voter registration drives and to purge the voter rolls of alleged non-citizen voters. In Florida, such measures forced groups like the League of Women Voters to halt voter registration efforts and wrongly labeled thousands of eligible voters as non-citizens. All of this is happening, coincidentally, in a crucial election year for the Commonwealth.
The continued push to restrict the right to vote reveals the extent to which conservative power remains deeply embedded in the states, thanks to the 2010 election and subsequent aggressive gerrymandering by GOP state legislatures to protect their majorities. To combat this imbalance, Howard Dean’s group Democracy For America is launching a new effort to flip state legislatures from red to blue. The group will start, fittingly, in Virginia this year, and then expand to Iowa, Michigan and Pennsylvania in 2014. DFA plans to spend $750,000 targeting five seats in the Virginia House of Delegates in 2013. Jamelle Bouie explains why this is savvy politics:
It’s hard to overstate how smart a way this is for liberal groups to invest their time and money. Virginia, in fact, is a great case study for why it’s key for Democrats to make gains on the state level. Democrats control both Senate seats in the state, and it was key to Barack Obama’s victories in 2008 and 2012. Despite this, Republicans control all three statewide offices (governor, lieutenant governor, and attorney general), the House of Delegates, and have the tie breaking vote in the state senate. The result? Republicans have been able to push a strong conservative agenda in the state.
With Congress deadlocked, the states are where the action is. It’s good that people are finally taking notice, especially as state politics continue to shift further to the right in many places.
Read Ari Berman on recent voting rights cases in the Supreme Court.
The Supreme Court will decide the constitutionality of a stringent Arizona voter registration law. (AP Photo/Pablo Martinez Monsivais.)
Three weeks after hearing a challenge to the heart of the Voting Rights Act, the Supreme Court will decide another important voting rights case following oral arguments today in Arizona v. The Inter Tribal Council of Arizona.
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 1993 National Voter Registration Act (NVRA). Under the NVRA, 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.”
Prop 200 has had a chilling effect on voter registration in Arizona. “Following enactment of Proposition 200, over 31,000 individuals were rejected for voter registration in Arizona,” according to a brief by the Mexican American Legal Defense Fund (MALDEF). “Less than one-third of the rejected registrants subsequently successfully registered to vote.” The law has needlessly prevented eligible voters from registering and has made voter registration work more difficult. “The proportion of all voter registrations in [Phoenix’s] Maricopa County attributable to community-based drives decreased from 24% in 2004 to 7% in 2005, 5% in 2006 and 6% in 2007,” found MALDEF.
Prop 200 was aimed at curtailing illegal immigration but has harmed many legal Arizonians. Of the 31,500 citizens who were prevented from registering to vote, MALDEF found, “the record in the case demonstrates that the rejected…registrants were Democrats and Republicans in equal numbers, almost one-half were under the age of 30, and a majority of those who indicated a race said they were white.”
Supporters of Prop 200 claim the proof of citizenship requirement is needed to stop voter registration fraud. But as the appeals court found, “Arizona has not provided persuasive evidence that voter fraud in registration procedures is a significant problem in Arizona; moreover, the NVRA includes safeguards addressing voter fraud.” Adds Nina Perales, vice president of litigation at MALDEF: “Nobody has ever been prosecuted for using the federal form to register to vote as a non-citizen.” There have been only seven cases of alleged election fraud in Arizona since 2000, according to an exhaustive study by News21, and the two alleged instances of non-citizens voting were dismissed.
Nonetheless, Arizona’s Prop 200 has served as a model for other states looking to pass new voting restrictions. (The conservative lobbying group ALEC recommended the bill to state legislatures in 2008.) Three states—Alabama, Kansas and Tennessee—adopted proof of citizenship laws for voter registration since the 2010 election and legislation was introduced in nine other states (Colorado, Connecticut, Maine, Massachusetts, New Hampshire, Nevada, Oregon, South Carolina and Texas.) Kansas Secretary of State Kris Kobach claimed in 2011 that sixty-seven non-citizens had illegally registered, out of 1.7 million on the state’s voter rolls, but “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. 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.
More likely, proof of citizenship laws are a way for opponents of increased minority participation in the electoral process to forestall the impact of demographic change, particularly in states like Arizona with a fast-growing Hispanic population. “Is some of the motivation behind this law to slow down the growth of the electorate?” asks Perales. “I believe so.”
In hearing the Arizona case, the Supreme Court will once again decide what powers Congress has to protect the right to vote. In the recent challenge to the Voting Rights Act, the Court’s conservative majority seemed skeptical of the steps Congress could take the remedy past and present voting discrimination. Will they take a similarly dim view of Congressional authority again? The appeals court found that the Elections Clause of the Constitution—Article I, Section 4—gives Congress the ability to regulate federal elections, contrary to Arizona’s submission. The Supreme Court has recognized this repeatedly, most recently in the 1997 case Foster v. Love. “The Constitution gives Congress the ultimate authority in setting rules for federal elections,” says Perales. Unless, of course, the justices maintain that registering to vote, like the Voting Rights Act, is just another racial entitlement.
UPDATE: The lawyers opposing Prop 200 seemed pleased with how the oral arguments proceeded. “Based on the discussion in the courtroom this morning, we are confident,” said Nina Perales. “The argument, from our perspective, went well,” said Jon Greenbaum of the Lawyers’ Committee for Civil Rights.
Justice Scalia, perhaps not surprisingly, led the charge in defense of Prop 200, while Justice Sotomayor said the law clearly violated the NVRA. “Some of us do believe in legislative history,” said Sotomayor. “Some of my colleagues don’t.” In response, Scalia pointed at himself.
Justice Kennedy, the court’s swing vote, “seemed to advocate for both sides of the case,” reported Ryan Reilly of The Huffington Post.
Kennedy argued that the federal form “is not worth very much” if Arizona could simply impose additional requirements on top of it, but later said that states had a “vital interest” in federal elections.
As Congress was honoring Rosa Parks late last month, conservative Supreme Court justices were discussing a change to the Voting Rights Act that could undo many civil rights successes.
President Lyndon B. Johnson signs the Voting Rights Act at US Capitol alongside Martin Luther King Jr. and Rosa Parks. Photo: Yoichi R. Okamoto, courtesy Lyndon Baines Johnson Library and Museum
At 11 am, as Congress unveiled a statue honoring Rosa Parks, the civil rights leaders of today (Including Rep. John Lewis, who nearly died in Selma during "Bloody Sunday") were gathered inside the Supreme Court, listening to a challenge to the centerpiece of the Voting Rights Act. The stark contrast illustrated the profound contradictions of American democracy when it comes to race and political power—the progress we’ve made has always been met by equally intense efforts to roll back that progress. And that remains true today, especially on February 27, 2013.
“To honor Rosa Parks in the fullest manner, each of us must do our part to protect that which has been gained, defend the great documents upon which those gains were obtained and continue our pursuit of a more perfect union,” Congressman James Clyburn, who grew up in segregated South Carolina in the 1940s and ’50s, said at the statue unveiling. Parks herself was present when Lyndon Johnson signed the Voting Rights Act in the Capitol rotunda on August 6, 1965. Twelve years before famously refusing to move to the back of a segregated bus in Montgomery, Parks attempted to register to vote. She was denied three times, and had to pass a literacy test and pay a poll tax in 1945 just to exercise what should have been her fundamental right. That’s the way America was before the passage of the Voting Rights Act.
Inside the courtroom, five conservative Justices made the case for why Section 5 of the Voting Rights Act—which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government—is no longer necessary. (See my recent Nation article, “Why Are Conservative Trying to Destroy the Voting Rights Act?” for a definitive account of the Shelby County v. Holder case and the conservative organization and money behind the challenge.)
Section 5 is the most effective section of the most effective civil rights law ever passed by Congress and has been called the “keystone of our voting rights” by Attorney General Eric Holder. But to the conservative majority on the court, Section 5 is an antiquated infringement on state sovereignty, treating some states differently than others based on outdated data from the 1960s and ’70s. Justice Scalia mocked the entirety of the Voting Rights, calling congressional support for the legislation (which has been overwhelmingly reauthorized four times, most recently in 2006, and signed by four Republican presidents) a “perpetuation of racial entitlement.”
It quickly became clear inside the courtroom that there are four votes to uphold Section 5 and four votes to strike it down. Justice Kennedy, as is so often the case, appears to be the swing vote, although he certainly leaned toward the conservatives. Justice Kennedy seemed preoccupied by two questions: number one, does Section 5 still cover the states and localities where discrimination is most concentrated in order to justify its federalism constraints? And number two, are other parts of the Voting Rights Act, most notably Section 2, an adequate replacement for Section 5?
Section 2 applies nationwide, permanently, and puts the burden of proof on plaintiffs to show that a voting change is discriminatory after it has gone into effect, whereas Section 5 must be reauthorized by Congress and is targeted only at those with the worst history of voting discrimination, who must pre-clear any voting change with the Department of Justice or a federal court in DC. Section 2 has often been described as the “sword” to Section 5’s “shield.”
Solicitor General Donald Verrilli and NAACP Legal Defend Fund counsel Debo Adegbile did their best to assuage Kennedy’s concerns. Adegbile noted that jurisdictions covered by Section 5 accounted for a quarter of the US population but made up 81 percent of successful published and unpublished lawsuits that reached a favorable verdict for minority plaintiffs under Section 2, proving that discrimination remained localized in Section 5 states. Kennedy seemed unpersuaded:
JUSTICE KENNEDY: if Congress is going to single out separate States by name, it should do it by name. If not, it should use criteria that are relevant to the existing [problem] — and Congress just didn’t have the time or the energy to do this; it just reenacted it.
VERRILLI: I think it was rational and effective in 1965. The Court upheld it then, it upheld it three more times after that.
JUSTICE KENNEDY: Well, the Marshall Plan was very good, too, the Morale Act, the Northwest Ordinance, but times change.
VERRILLI: But the question is whether times had changed enough and whether the differential between the covered jurisdictions and the rest of the country had changed enough that Congress could confidently make the judgment that this was no longer needed.
Verrilli and Adegbile described Section 2 as a poor substitute for Section 5. As Kennedy himself noted in 2009, “Section 2 cases are very expensive. They are very long. They are very inefficient.” Section 2 lawsuits are incredibly complex, can take years to adjudicate and often cost millions of dollars, which few victims of voting discrimination can afford. Congress included Section 5 in the Voting Rights Act precisely because case-by-case litigation had failed to stop voting discrimination prior to 1965. “The reason Section 5 was created was because States were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed,” said Justice Sotomayor. The genius of Section 5 was to “shift the advantage of time and inertia from the perpetrators of the evil to its victims,” Chief Justice Earl Warren wrote in the 1966 case South Carolina v. Katzenbach, the first of five unsuccessful challenges to Section 5.
In last year’s election cycle, the Justice Department under Section 5 opposed voter ID laws in Texas and South Carolina, early-voting cutbacks in Florida and redistricting maps in Texas. The federal courts in Washington sided with the DOJ in three of four cases, finding evidence of discriminatory effect and/or purpose, while also blocking South Carolina’s voter ID law for 2012. If Section 5 was gone and Section 2 was the only recourse, these major changes would’ve been in effect during the last election, and could only be challenged after years of costly and difficult litigation. The voters disenfranchised in the meantime would have no recourse, other than the hopes of a preliminary injunction from the courts, which is an increasingly rare prospect in a judiciary dominated by conservatives, especially in the South.
Amazingly, the voter suppression attempts that spread nationwide during the last election never came up during the oral arguments. The justices did not hear, for example, that six of the nine fully covered states under Section 5 passed new voting restrictions since 2010, including voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), limits on early voting (Georgia) and restrictions on voter registration (Alabama and Texas), compared to only one-third of noncovered jurisdictions during the same period. The insularity of the Supreme Court was particularly evident today. Opponents of Section 5 pointed to the fact that minority voter registration and turnout rates in places like Alabama are equal to or exceed states not covered by Section 5, but that hardly covers the scope of voting discrimination that exists in the South today.
CHIEF JUSTICE ROBERTS: General, is it the government’s submission that the citizens in the South are more racist than citizens in the North?
GENERAL VERRILLI: It is not, and I do not know the answer to that, Your Honor, but I do think it was reasonable for Congress—
CHIEF JUSTICE ROBERTS: Well, once you said it is not, and you don’t know the answer to it.
GENERAL VERRILLI: It’s not our submission. As an objective matter, I don’t know the answer to that question. But what I do know is that Congress had before it evidence that there was a continuing need based on Section 5 objections, based on the purpose-based character of those objections, based on the disparate Section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need.
CHIEF JUSTICE ROBERTS: A need to do what?
GENERAL VERRILLI: To maintain the deterrent and constraining effect of the Section 5 preclearance process in the covered jurisdictions
CHIEF JUSTICE ROBERTS: And not impose it on everyone else?
GENERAL VERRILLI: And—that’s right, given the differential in Section 2 litigation, there was a basis for Congress to do that.
One of the main tensions inside the courtroom was whether Congress or the Court gets to determine what is and isn’t valid under the Voting Rights Act. After all, the act has been overwhelmingly reauthorized four times by Congress, most recently in 2006. To Justice Scalia, that means it must be unconstitutional. “Even the name of it is wonderful: The Voting Rights Act,” Scalia said sarcastically. “Who is going to vote against that in the future?”
Yet both conservative and liberal members of Congress are urging the Court to respect both the original and recent findings of the legislative body. Notes an amicus brief filed by bipartisan members of Congress, including recent chairs of the House Judiciary Committee: “This Court has recognized that Congress acts at the height of its powers when it legislates to regulate the concerns at which the VRA is aimed: racial discrimination, infringement of fundamental rights, and elections. When Congress exercises its powers at the intersection of these three concerns—as it did here—this Court should defer to Congress’s considered judgment.”
Justice Kagan brought this up in an exchange with Shelby County’s lawyer, Bert Rein:
JUSTICE KAGAN: You said the problem [of voting discrimination in the South] has been solved. But who gets to make that judgment really? Is it you, is it the Court, or is it Congress?
MR. REIN: Well, it is certainly not me.
JUSTICE SCALIA: That’s a good answer. I was hoping you would say that.
MR. REIN: But I think the question is Congress can examine it, Congress makes a record; it is up to the Court to determine whether the problem indeed has been solved and whether the new problem, if there is one.
JUSTICE KAGAN: Well, that’s a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick.
It would be a truly radical step for the Court to dismiss the repeated and overwhelming judgment of Congress by striking down Section 5. The disappearance of Section 5 would be a devastating setback for voting rights—akin to the way the Citizens United decision eviscerated campaign finance regulation—and would greenlight the kind of voter suppression attempts that proved so unpopular in 2012.
It’s particularly ironic that Shelby County, Alabama, of all places, would bring this challenge to Section 5, given the recent history of discrimination in the county and state. Before local elections in 2008, the city of Calera redrew its city boundaries, eliminating the City Council’s lone majority-black district, represented by Ernest Montgomery since 2004. The city decreased the black voting-age population in Montgomery’s district from 71 percent to 30 percent by adding three overwhelmingly white subdivisions while failing to include a large surrounding black neighborhood. A day before the election, the Justice Department objected to the change. Calera could have preserved the majority-black district, the city’s demographer told Washington, but the City Council chose not to. Calera held the election in defiance of Justice Department orders, and Montgomery lost by two votes.
The Justice Department negated the election results and, after a year of negotiations, Calera moved from single-member districts to an at-large election system for the City Council. Montgomery was easily elected under the new system, winning the largest number of votes of any candidate, while his opponent from 2008 received the second-fewest. After the two elections, “I realized how important Section 5 is,” Montgomery said.
If it hadn’t been for Section 5, there would be no black members of the city council in Calera. “Assuming I accept your premise…that some portions of the South have changed, your county pretty much hasn’t,” Justice Sotomayor told Rein.
Mr. Montgomery and a large delegation of voting rights activists from Alabama attended the arguments. “Things have gotten a lot better and the reason it has gotten better is because of legislation like Section 5,” he told me after. “We definitely feel it’s still needed. We don’t claim the playing field has leveled. It’s leveling. Eventually maybe we’ll get to the point where Section 5 is not needed, but we’re not there yet.”
President Obama embraced the cause of voting rights in his State of the Union speech, which he called “our most fundamental right as citizens,” and spotlighted 102-year-old Desiline Victor, a naturalized Haitian immigrant from Miami who waited three hours—and had to make two trips—to cast a ballot. He also proposed a new voting commission headed by lawyers from the Obama and Romney campaigns.
Here’s what Obama said:
We must all do our part to make sure our God-given rights are protected here at home. That includes our most fundamental right as citizens: the right to vote. When any American—no matter where they live or what their party—are denied that right because they can’t afford to wait for five, six, seven hours just to cast their ballot, we are betraying our ideals. So, tonight, I’m announcing a non-partisan commission to improve the voting experience in America, and it definitely needs improvement. I’m asking two longtime experts in the field, who, by the way, served as the top attorneys for my campaign and for Governor Romney’s campaign, to lead it. We can fix this, and we will. The American people demand it. And so does our democracy.
Unfortunately, Obama’s solution was less than inspiring. Another election commission is a pretty tepid response to the magnitude of the voting problems we face. And Romney campaign lawyer Ben Ginsberg is a puzzling choice to be its co-chair.
For over two decades, Ginsberg has been a top lawyer for the Republican Party—the same party, you may recall, that has led the effort to restrict voting rights of late. Ginsberg helped lead the 2000 recount effort for George W. Bush. He was forced to resign from the Bush campaign in 2004 after it was revealed that he was also advising the vile Swift Boat Veterans for Truth. In 2006, Ginsberg said, “Just like really with the Voting Rights Act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection.” And in 2012, he was counsel to the Romney campaign when it absurdly claimed that the Obama campaign was trying to suppress military voters by pushing for early voting for all Ohioans. Does that sound like the kind of guy you want leading a “non-partisan” voting commission?
More than likely, this commission will go nowhere. After all, commissions in Washington tend to be where good ideas go to die. Following the 2000 election, the Help America Vote Act created the Election Assistance Commission to help states run their elections. It’s become the “zombie voting commission,” according to The Washington Post; it has no commissioners, executive director or general counsel, and hasn’t met publicly since 2011. Republicans have repeatedly blocked the appointment of new commissioners and tried to abolish the agency; Democrats have done little to resurrect it.
There’s not much the Obama administration can do on election reform without Congress. So here’s a modest proposal: before Congress tries to pass sweeping election reform, how about taking the baby step of getting its own election commission back up and running? And hopefully Obama, in exchange for appointing Ginsberg to his voting commission, can extract a promise from the GOP lawyer to support the expansion, not restriction, of voting rights.
UPDATE: Voting rights groups appear split on the voting commission. The Brennan Center for Justice called it "an important step, focusing on improving the experience of voters." But the normally mild-mannered League of Women Voters sharply criticized the idea: "we were surprised and disappointed that the President did not suggest bold action to ensure that every American citizen can exercise the right to vote. Setting up a commission is not a bold step; it is business as usual. The President could have done much better by pointing to real solutions like that in legislation already introduced on Capitol Hill to require early voting, set limits on waiting times, provide for portable voter registration and set up secure online voter registration.”
On two major occasions—during his election-night speech and second inaugural address—President Obama has highlighted the need for election reform. “By the way, we have to fix that,” he said on November 6 about the long lines at the polls in states like Florida. Shortly thereafter, the cause of election reform seemed to fall by the wayside, with more pressing events, such as the Sandy Hook shooting and the fiscal cliff, dominating the news. But Obama returned to the issue on January 21, saying “our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.”
Now the question is whether the Obama administration and Congress will actually do something to fix the shameful way US elections are run. There are smart proposals in Congress to address the issue. The most comprehensive among them is the Voter Empowerment Act, reintroduced today by Democratic leaders in the House, including civil rights icon John Lewis, and Kirsten Gillibrand in Senate.
The bill would add 50 million eligible Americans to the voter rolls by automatically registering consenting adults to vote at government agencies, adopting Election Day voter registration, and allowing citizens to register to vote and update their addresses online. (As Attorney General Eric Holder noted recently, 80 percent of the 75 million eligible citizens who didn’t vote in 2008 were not registered to vote.) It would also guarantee fifteen days of early voting to ease long lines, restore the voting rights of felons after they’ve served their time and ban deceptive ads aimed at suppressing voter turnout. “It’s got almost everything in there that we think is important,” says Eric Marshall of the Lawyers’ Committee for Civil Rights Under Law.
The Voter Empowerment Act is supplemented by other worthwhile proposals in Congress. There is Senator Barbara Boxer’s LINE Act, which mandates national standards for a minimum number of voting machines and election workers in each precinct, and Senator Chris Coons’s FAST Act, which gives grants to states that conduct elections efficiently, modeled after Obama’s Race to the Top education initiative. Both Harry Reid and Nancy Pelosi have designated election reform as a top priority for the new Congress.
“It’s too early to tell what will pass, but there’s a lot of commitment to move these bills from their supporters, including Democratic leaders of both houses of Congress,” says Wendy Weiser, director of the democracy program at the Brennan Center for Justice. Obama has already announced an ambitious legislative agenda focused on gun control, immigration reform and climate change, but supporters of election reform believe the administration is ready to move on this issue as well. “They have stated this as a much bigger priority than it was before,” adds Weiser. “Based on my conversations with people in the administration, I’m convinced they are committed to figuring out how to contribute to a solution.”
The need for a fix is clear. A study conducted for the Orlando Sentinel found that 201,000 Floridians didn’t vote in 2012 because of long lines on Election Day. A separate study found that in-person early voting numbers decreased by 225,000 compared to 2008, when the state had six more days of early voting. Moreover, black and Hispanic voters bore the brunt of the state’s election problems. “African Americans and Hispanic voters were more likely than white voters to cast provisional ballots and nearly twice as likely to have their provisional ballots rejected,” according to University of Florida political scientist Daniel Smith and Dartmouth University professor Michael Herron. Additionally, “the African American absentee ballot rejection rate was nearly twice the absentee ballot rejection rate of white voters.”
In Ohio, another GOP-controlled state that curtailed early voting compared to 2008, large urban counties had wait times of one to four hours during the three days of voting before the election, while smaller counties had wait times of only thirty minutes to an hour, according to a new report by Norman Robbins of Northeast Ohio Voter Advocates.
The public wants its elected representatives to address these problems. A post-election poll found that 88 percent of 2012 voters support new national voting standards. By nearly two to one, the public is more concerned about “eligible voters being denied the opportunity to vote” rather than “ineligible voters getting to vote.”
“The moment calls for something big,” says Marshall. “There’s a desire for an overhaul. It’s just a question of the will.”
Any election reform deal will require Republican support, which so far hasn’t been forthcoming. “I don’t think it’s the federal government’s role to make sure there are no long lines,” Representative Candice Miller (R-MI), chairman of the House Administration Committee, recently told Politico.
Yet the news from the states shows that GOP resistance to making it easier to vote has cracked a bit. Florida Governor Rick Scott, who presided over a controversial cutback in early voting days, now supports expanding early voting and increasing the number of polling locations. Virginia Governor Bob McDonnell recently voiced his support for automatically restoring the voting rights of ex-felons.
These hopeful signs, however, are offset by a continuation of disturbing trends. GOP-controlled states like North Carolina are planning to pass new voter ID laws, while GOP state legislators in swing states like Michigan, Pennsylvania, Virginia and Wisconsin are trying gerrymander the Electoral College to boost the party in future presidential contests.
Such voter suppression efforts backfired on the GOP in 2012, getting blocked in court and motivating a larger turnout among young and minority Obama supporters. “The Republican Party should be a party that says, ‘We want everybody to vote,’ and make it easier for people to vote and give them a reason to vote for the party, and not to find ways to keep them from voting at all,” Colin Powell recently advised the GOP. Supporting sensible election reform efforts would be a good place to start.
For more on voting rights, check out The Nation’s Voting Rights Watch, which most recently covered GOP Governor Bob McDonnell’s support for restoring voting rights to nonviolent ex-felons.
For a brief time in the fall of 2011, Pennsylvania GOP Senate Majority Leader Dominic Pileggi unveiled a plan to deliver the bulk of his state’s electoral votes to Mitt Romney. Pileggi wanted Pennsylvania to award its electoral votes not via the winner-take-all system in place in forty-eight states but instead based on the winner of each Congressional district. Republicans, by virtue of controlling the redistricting process, held thirteen of eighteen congressional seats in Pennsylvania following the 2012 election. If Pileggi’s plan would have been in place on November 6, 2012, Romney would’ve captured thirteen of Pennsylvania’s twenty Electoral College votes, even though Obama carried the state with 52 percent of the vote.
In the wake of Romney’s defeat and the backfiring of GOP voter suppression efforts, Pileggi is resurrecting his plan (albeit in a slightly different form) and the idea of gerrymandering the Electoral College to boost the 2016 GOP presidential candidate is spreading to other GOP-controlled battleground states that Obama carried, like Ohio, Virginia and Wisconsin. Thanks to big gains at the state legislative level in 2010, Republicans controlled the redistricting process in twenty states compared to seven for Democrats, drawing legislative and Congressional maps that will benefit their party for the next decade. (The Brennan Center for Justice estimates that Republicans picked up six additional House seats in 2012 due to redistricting.) Republicans now want to extend their redistricting advantage to the presidential realm.
Pileggi’s plan, if implemented in all of the battleground states where Republicans held a majority of House seats, would’ve handed the White House to Romney. According to Think Progress:
Assuming that Mitt Romney won every congressional district that elected a Republican House candidate in these key states, the Corbett/Husted (named after the Pennsylvania governor and Ohio secretary of state) plan would have given Romney 17 electoral votes in Florida, 9 in Michigan, 12 in Ohio, 13 in Pennsylvania, 8 in Virginia, and 5 in Wisconsin—for a total of 64 additional electoral votes.
Add those 64 votes to the 206 votes Romney won legitimately, and it adds up to exactly 270—the amount he needed to win the White House.
According to Dave Wasserman of the Cook Political Report, Republicans currently hold the majority of House seats in thirty states, compared to seventeen for Democrats, giving them a big advantage in any bid to rig the Electoral College.
Take a look at Virginia, where State Senator Charles “Bill” Carrico Sr. introduced legislation to award his state’s electoral votes based on the winner of each Congressional district. Here’s what that would mean, reports ThinkProgress:
With a Republican-controlled redistricting passed earlier this year, Virginia Democrats were heavily packed into three districts. Under these maps, Obama won Virginia by almost a 4 point margin, yet he carried just four Virginia Congressional Districts. Were Carrico’s scheme in place, Mitt Romney would have received seven of Virginia’s 11 electoral votes despite receiving just 47.28% of the vote statewide.
Or take a look at Ohio, where controversial Secretary of State Jon Husted briefly voiced support for a similar plan following the 2012 election. Obama won Ohio by three points, but Republicans control twelve of eighteen congressional seats there, meaning that Romney would’ve netted more electoral votes than Obama if Husted had his way.
The GOP supported voter suppression efforts in 2012 as a way to make the electorate older, whiter and more conservative. But that push backfired when opponents of voter suppression turned out in large numbers for Obama, cementing an electorate that was younger and more diverse than in 2008. The shifting demographics of the country indicate that Obama’s “coalition of the ascendant” will only grow in size in future elections. So Republicans are searching for new ways to dilute the influence of Democratic voters.
Will the GOP’s bid to gerrymander the Electoral College be more successful now than it was last election cycle? Let’s hope not. Pileggi’s plan divided Pennsylvania Republicans and ultimately went nowhere. Husted had to quickly backtrack from his statements due to the national uproar. Here’s an idea for Republicans: instead of diluting the votes of your opposition, how about supporting policies—like immigration reform and a more equitable distribution of taxes—that will win you more votes from a growing chunk of the electorate?
And here’s another idea for both parties: instead of gerrymandering the Electoral College, how about abolishing it altogether?
The election is over, but the fight to protect voting rights isn't. Check out our coverage of the challenge to the Voting Rights Act.
In 2006, Congress voted overwhelmingly to reauthorize Section 5 of the Voting Rights Act for another twenty-five years. The vote was 390-33 in the House and 98-0 in the Senate. Every top Republican supported the bill. “The Voting Rights Act must continue to exist,” said House Judiciary Chairman James Sensenbrenner, “and exist in its current form.” Civil rights leaders, including Julian Bond and Jesse Jackson, flanked George W. Bush at the signing ceremony.
Yet three days after the 2012 election, in which voter suppression played a starring role, the Supreme Court agreed to hear a conservative challenge to the constitutionality of Section 5, which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government. The challenge originates in Shelby County, Alabama, and is being supported by Republican attorneys general in Alabama, Arizona, Georgia, South Carolina, South Dakota and Texas. Ed Blum, director of the Project on Fair Representation, which is funding the lawsuit, told The New York Times that Section 5 “is stuck in a Jim Crow-era time warp.”
But past remains present to a disturbing degree in the South. It turns out that states and counties with a history of voting discrimination in 1964 are still trying to suppress the growing minority vote today. Consider, for example, that eight of eleven states in the former Confederacy passed new voting restrictions since the 2010 election. These included laws requiring government-issued photo ID to cast a ballot (Alabama, Mississippi, South Carolina, Tennessee and Texas), proof of citizenship to register to vote (Alabama and Tennessee), cutbacks to early voting (Florida, Georgia and Tennessee) and disenfranchising of ex-felons (Florida). All of these changes make it harder for minority voters to participate in the political process.
Section 5, which Attorney General Eric Holder has called the “keystone of our voting rights,” can’t stop all of these ills, but it remains the most effective tool the federal government has to object to discriminatory voting changes in the South. “The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years,” the Department of Justice argued in a recent court filing.
This election cycle, DOJ opposed voter ID laws in Texas and South Carolina, early voting cutbacks in Florida, and redistricting maps in Texas under Section 5. The federal courts in Washington sided with DOJ in three of four cases, and also blocked South Carolina’s voter ID law for 2012.
Doug Kendall, president of the Constitutional Accountability Center, reviews the recent court decisions:
On August 30, in Texas v. Holder, a three-judge court unanimously blocked Texas’ new voter identification statute, the most stringent in the nation, finding that the statute would inevitably disenfranchise low-income Texas citizens, who are disproportionately African American and Hispanic. The court explained that, unlike Indiana, whose voter identification law was upheld by the Supreme Court in 2008, Texas had gone to great lengths to suppress the vote in poor and minority communities, strictly limiting the types of photo identifications available – a license to carry a concealed firearm is a valid ID under the law, but not a student or Medicare ID card – and making it costly to obtain a so-called “free” election ID for use at the polls. For those without one of the five permitted photo identifications, the court found that the law was tantamount to a poll tax, “imposing an implicit fee for the privilege of casting a ballot.” The “very point” of the Voting Rights Act, the court explained, was to deny “states an end-run around the Fifteenth Amendment’s prohibition on racial discrimination in voting.”
Likewise, on August 16, in Florida v. United States, three other judges unanimously held that Florida could not slash the period for early voting, explaining that “a dramatic reduction in the form of voting that is disproportionately used by African Americans would make it materially more difficult for some minority voters to cast a ballot.” Florida’s reduction in early voting, the court explained, was akin to “closing polling places in disproportionately African-American precincts.” Noting that Congress enacted the Voting Rights Act to enforce the Fifteenth Amendment and “provide robust and meaningful protections for minority voting rights,” the court held that Florida could not suppress the vote through a significant reduction in the hours of early voting.
Finally, on August 28, in Texas v. United States, in a yet another unanimous ruling, another three-judge court held that Texas’ new state legislative and congressional districts could not be squared with the Voting Rights Act, finding that new congressional, state senate and state house district lines had either the purpose or effect of diluting minority voting strength. Importantly, because the court’s opinion, authored by George W. Bush appointee Judge Thomas Griffith, held that Texas had purposefully discriminated on account of race in both the congressional and state senate plans, Texas’ districting was both a violation of the Voting Rights Act and the Constitution.
In South Carolina’s voter ID trial, Judge Robert Bates, a George W. Bush appointee, specifically praised Section 5’s judicial review. “One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here,” Bates wrote. “Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive. Several legislators have commented that they were seeking to structure a law that could be precleared."
In a separate case last year, Bates ruled against Shelby County’s challenge to Section 5. “This Court finds that Section 5 remains a ‘congruent and proportional remedy’ to the 21st century problem of voting discrimination in covered jurisdictions,” he wrote in September 2011.
During this election, Republicans didn’t even hide the fact that they were trying to limit the voting rights of Democratic-leaning minority voters. “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 chairman of the Republican Party in Franklin County, Ohio. Nor were Republicans subtle about their racial motivations. During South Carolina’s trial, it was revealed that GOP State Representative Alan Clemmons, author of the voter ID bill, received an email from a supporter of the law, Ed Koziol of Greenville, suggesting that if black voters received a reward for obtaining voter ID “it would be like a swarm of bees going after a watermelon.” To which Clemmons replied, “Amen, Ed, thank you for your support.”
Statements like these and the new voting restrictions passed by Republicans since 2010 indicate that Section 5 is as important now as it ever was. Court across the country signaled as much when they blocked ten major GOP-passed voter suppression laws this year.
I previewed the fight over Section 5 before the Supreme Court in a recent Nation piece:
Rick Hasen, an elections expert at the University of California, Irvine, School of Law and author of The Voting Wars, predicts the Court will invalidate Section 5, noting that Chief Justice John Roberts led the charge against the expansion of the Voting Rights Act as a young lawyer in the Reagan Justice Department. “This is his signature issue,” Hasen says. The disappearance of Section 5 would be a devastating setback for voting rights, akin to the way the Citizens United decision eviscerated campaign finance reform.
But Debo Adegbile, acting president of the NAACP Legal Defense Fund, who successfully argued against overturning Section 5 during a previous challenge before the Court in 2009, believes the rulings against voter suppression laws this year will strengthen his side’s argument when they go back before the justices. “Today, the average person understands what Congress came to understand when they reauthorized the Voting Rights Act [by an overwhelming margin in 2006], which is that we have made a tremendous amount of progress. But the strain that runs through American politics of blocking voters is far from gone and rears its head in pernicious ways,” Adegbile says. “That changes the context of the conversation.”
Indeed, only a Supreme Court wholly divorced from reality would review the record on voting rights since Congress reauthorized the Voting Rights Act in 2006 and conclude that a key pillar of the law was no longer needed.
Since the 2010 election, Republicans passed new voting restrictions in more than a dozen states aimed at reducing the turnout of Barack Obama’s “coalition of the ascendant”—young voters, African-Americans and Hispanics.
“This is not rocket science,” Bill Clinton said last year. “They are trying to make the 2012 electorate look more like the 2010 electorate than the 2008 electorate.” By pushing voter suppression laws, Republicans wanted the 2012 electorate to be older, whiter and more conservative than the young and diverse 2008 electorate.
But the GOP’s suppression strategy failed. Ten major restrictive voting laws were blocked in court and turnout among young, black and Hispanic voters increased as a share of the electorate relative to 2008.
Take a look at Ohio, where Ohio Republicans limited early voting hours as a way to decrease the African-American vote, which made up a majority of early voters in cities like Cleveland and Dayton. Early voting did fall relative to 2008 as a result of Ohio Secretary of State Jon Husted’s cutbacks in early voting days and hours, but the overall share of the black electorate increased from 11 percent in 2008 to 15 percent in 2012. More than anything else, that explains why Barack Obama once again carried the state.
I spent the weekend before the election in black churches in Cleveland, and there’s no doubt in my mind that the GOP’s push to curtail the rights of black voters made them even more motivated to cast a ballot. “When they went after big mama’s voting rights, they made all of us mad,” said Reverend Tony Minor, Ohio coordinator of the African American Ministers Leadership Council. According to CBS News: "More African-Americans voted in Ohio, Virginia, North Carolina and Florida than in 2008."
The same thing happened with the Latino vote, which increased as a share of the electorate (from 9 percent in 2008 to 10 percent in 2012) and broke even stronger for Obama than in 2008 (from 67-31 in 2008 to 71-27 in 2012, according to CNN exit polling). The share of the Latino vote increased in swing states like Nevada (up 4 percent), Florida (up 3 percent) and Colorado (up 1 percent). Increased turnout and increased support for Obama among Latinos exceeded the margin of victory for the president in these three swing states.
We’re still waiting on the data to confirm this theory, but a backlash against voter suppression laws could help explain why minority voter turnout increased in 2012. “That’s an extremely reasonable theory to be operating from,” says Matt Barreto, co-founder of Latino Decisions, a Latino-focused polling and research firm. “There were huge organizing efforts in the black, Hispanic and Asian community, more than there would’ve been, as a direct result of the voter suppression efforts.” Groups like the NAACP, National Council of La Raza, National Association of Latino Elected and Appointed Officials, and the Asian-American Legal Defense Fund worked overtime to make sure their constituencies knew their voting rights.
As Andrew Cohen of The Atlantic wrote:
If there is one thing this election has proven, if there is one thing I have come to know, it is that Americans don’t like it when their right to vote is threatened. The very people whose votes the Republicans sought to suppress came out to vote. In places like Akron and Orlando and Denver and Milwaukee, they came. They waited in long lines and endured the indignities of poll workers. Yet they were not cowed. Today is their day. A day when they can look at one another and appreciate that they are truly a part of the history of civil rights in this country.
There are, of course, major caveats to this theory. If voter ID laws had been on the books in states like Pennsylvania and Wisconsin, turnout might’ve shifted in the Republicans’ favor, as the political science literature suggests. (Nate Silver predicted that Pennsylvania’s voter ID law would’ve provided a net 1.2 percent shift to Republican candidates.) We don’t know how many voters were disenfranchised by voter ID laws in states like Kansas and Tennessee or didn’t vote in Florida because of long lines or a felony conviction or were forced to cast a provisional ballot in Ohio that will not be counted. Section 5 of the Voting Rights Act could be invalidated by the Supreme Court, which would be a devastating setback for voting rights, and new voting restrictions that were temporarily blocked in state courts could be ultimately upheld.
But, for now, the momentum is shifting away from the GOP when it comes to voting rights. For the first time, in Minnesota, voters defeated a photo ID ballot initiative.
The measure started with a double-digit lead, but opponents of voter ID were able to convince a purple-state electorate that such laws are unnecessary and discriminatory. This could be a harbinger of things to come in other swing states.
In a recent piece in The Nation, I wrote that voter suppression efforts have become the “new normal” in the GOP. Unless or until Republicans get serious about courting an increasingly diverse and younger electorate, they’ll continue to pass laws to undermine the political power of this growing constituency.
But they’ll do so at their own peril. Racial minorities made up 28 percent of the electorate in 2012, up from 26 percent in 2008, and voted 80 percent for Obama. “Romney matched the best performance among white voters ever for a Republican challenger—and yet he lost decisively in the Electoral College,” wrote Ron Brownstein of National Journal. Minorities also accounted for 45 percent of Obama’s total vote. That means that in the not-so-distant-future, a Democrat will be able to win the presidency without needing a majority of white votes in his or her own coalition. In a country with growing diversity, if one party is committed to expanding the right to vote and the other party is committed to restricting the right to vote, it’s not hard to figure out which one will ultimately be more successful.
The GOP thought the white, male vote would be enough to win this election. They were wrong. Check out Jon Wiener’s coverage here.