Ari Berman | The Nation

Ari Berman

Ari Berman

 On American politics and policy.

What the Supreme Court Doesn’t Understand About the Voting Rights Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Take Action: Tell Congress to Guarantee the Right to Vote

Supreme Court Strikes Down Arizona Voter Suppression Law

Reuters/Joshua Lott

In a 7-2 decision today, the Supreme Court found that Arizona’s proof of citizenship law for voter registration violated the National Voter Registration Act (NVRA). Somewhat surprisingly, Justice Scalia—who in February called the Voting Rights Act “a perpetuation of racial entitlement”—wrote the opinion for the majority, finding that federal law preempted state law in this case. “We conclude that the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the Federal Form is ‘inconsistent with’ the NVRA’s mandate that States ‘accept and use’ the Federal Form,” wrote Scalia. “If this reading prevails, the Elections Clause requires that Arizona’s rule give way.” The ruling is a major victory for voting rights and an affirmation of the NVRA, which has helped 141 million Americans register to vote and turned twenty last month.

Justices Thomas and Alito dissented. Wrote Thomas: “The States, not the Federal Government, have the exclusive right to define the ‘Qualifications requisite for Electors,’ which includes the corresponding power to verify that those qualifications have been met.”

Here’s the background on 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. 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.”

The decision has broader significance for two reasons. Number one, Arizona had been the model for proof of citizenship laws more recently adopted in states like Alabama, Kansas and Tennessee. Today’s ruling could serve as a deterrent for states that are considering making it harder to register to vote.

Secondly, Scalia, who has often been skeptical of Congressional precedent, affirmed that Congress does, indeed, play an important role in determining the rules for federal elections. Does that mean the Supreme Court will uphold Section 5 of the Voting Rights Act in a decision this week or next? No. But it’s not a stretch to conclude that if the justices affirmed the power of the federal government with regards to Arizona, they should also pay great deference to a landmark civil rights law that has been overwhelmingly reauthorized four times by Congress and upheld by the Supreme Court every time it’s been challenged.

UPDATE: Rick Hasen, an election law expert at UC-Irvine, cautions against viewing the Arizona case as a clear victory for voting rights. “What the Supreme Court gave the federal government with one hand, it suggested could soon be taken away with the other,” he writes. “Justice Scalia drew a distinction between Congress’s broad power to set the manner of elections and its lack of power to set voter qualifications (such as residency requirements), which is an issue left to the states. The Court’s view of the ‘qualifications’ clause may give states new powers to resist federal government control over elections.”

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But Jon Greenbaum, legal director for the Lawyers’ Committee for Civil Rights Under Law, an intervener in the case, strongly disagreed with that interpretation. “We knew before this decision that states set qualifications,” he says. “Arizona tried to make the argument that [the proof of citizenship law] was a qualification and a majority of the court rejected that argument…The case limits what states can do.” 

Ari Berman writes about John Lewis and the long fight for voting rights.

North Carolina Is the New Wisconsin

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

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

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

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

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

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

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

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

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

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

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

Texas Redistricting Fight Shows Why Voting Rights Act Still Needed

The Senate Redistricting committee listens to public speakers during a hearing, Thursday, May 30, 2013, in Austin, Texas. (AP Photo/Eric Gay)

The last time Texas redrew its political maps in the middle of the decade, Texas Democrats fled to Oklahoma to protest Tom DeLay’s unprecedented power grab in 2003.  

Now Texas Republicans are at it again, with Governor Rick Perry calling a special session of the legislature to certify redistricting maps that were deemed intentionally discriminatory by a federal court in Washington and modified, with modest improvements, by a district court in San Antonio last year. Republicans want to quickly ratify the interim maps drawn for 2012 by the court in San Antonio before the court has a chance to improve them for 2014 and future elections. “Republicans figured out that if the courts rule on these maps, they’re going to make them better for Latinos and African-Americans,” says Matt Angle, director of the Texas Democratic Trust.

The maps originally passed by the Texas legislature in 2011 personified how Republicans were responding to demographic change by trying to limit the power of an increasingly diverse electorate. Here’s the backstory, which I reported last year:

One of four majority-minority states, Texas grew by 4.3 million people between 2000 and 2010, two-thirds of them Hispanics and 11 percent black. As a result, the state gained four Congressional seats this cycle. Yet the number of seats to which minority voters could elect a candidate declined, from eleven to ten. As a result, Republicans will pick up three of the four new seats. “The Texas plan is by far the most extreme example of racial gerrymandering among all the redistricting proposals passed by lawmakers so far this year,” says Elisabeth MacNamara, president of the League of Women Voters.

As in the rest of the South, the new lines were drawn by white Republicans with no minority input. As the maps were drafted, Eric Opiela, counsel to the state’s Congressional Republicans, referred to key sections of the Voting Rights Act as “hocus-pocus.” Last year the Justice Department found that the state’s Congressional and Statehouse plans violated Section 5 of the VRA by “diminishing the ability of citizens of the United States, on account of race, color, or membership in a language minority group, to elect their preferred candidates of choice.” (Texas has lost more Section 5 enforcement suits than any other state.)

Only by reading the voluminous lawsuits filed against the state can one appreciate just how creative Texas Republicans had to be to so successfully dilute and suppress the state’s minority vote. According to a lawsuit filed by a host of civil rights groups, “even though Whites’ share of the population declined from 52 percent to 45 percent, they remain the majority in 70 percent of Congressional Districts.” To cite just one of many examples: in the Dallas-Fort Worth area, the Hispanic population increased by 440,898, the African-American population grew by 152,825 and the white population fell by 156,742. Yet white Republicans, a minority in the metropolis, control four of five Congressional seats. Despite declining in population, white Republicans managed to pick up two Congressional seats in the Dallas and Houston areas. In fact, whites are the minority in the state’s five largest counties but control twelve of nineteen Congressional districts.

On August 28, 2012, a federal court in Washington found that Texas’s redistricting maps were “enacted with discriminatory purpose” and violated Section 5 of the Voting Rights Act. Texas Republicans not only failed to grant new power to minority voters in the state, the court found, they also took away vital economic resources from minority Democratic members of Congress.

From the opinion:

Congressman Al Green, who represents CD 9, testified that “substantial surgery” was done to his district that could not have happened by accident. The Medical Center, Astrodome, rail line, and Houston Baptist University — the “economic engines” of the district — were all removed in the enacted plan. The enacted plan also removed from CD 9 the area where Representative Green had established his district office. Likewise, Congresswoman Sheila Jackson Lee, who represents CD 18, testified that the plan removed from her district key economic generators as well as her district office. Congresswoman Eddie Bernice Johnson of CD 30 also testified that the plan removed the American Center (home of the Dallas Mavericks), the arts district, her district office, and her home from CD 30. The mapdrawers also removed the district office, the Alamo, and the Convention Center (named after the incumbent’s father), from CD 20, a Hispanic ability district.

No such surgery was performed on the districts of Anglo incumbents. In fact, every Anglo member of Congress retained his or her district office. Anglo district boundaries were redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren. And Texas never challenged evidence that only minority districts lost their economic centers by showing, for example, that the same types of changes had been made in Anglo districts.

The only explanation Texas offers for this pattern is “coincidence.” But if this was coincidence, it was a striking one indeed. It is difficult to believe that pure chance would lead to such results. The State also argues that it “attempted to accommodate unsolicited requests from a bipartisan group of lawmakers,” and that “[w]ithout hearing from the members, the mapdrawers did not know where district offices were located.” But we find this hard to believe as well. We are confident that the mapdrawers can not only draw maps but read them, and the locations of these district offices were not secret. The improbability of these events alone could well qualify as a “clear pattern, unexplainable on grounds other than race,” and lead us to infer a discriminatory purpose behind the Congressional Plan.

The interim maps drawn by three judges in San Antonio in March 2012 rectified some of the worst injustices in the legislature’s maps. The court restored a majority-minority Congressional district in South Texas and created a new one in the Dallas-Fort Worth Area. It also moved Congressional offices and major landmarks back into the districts of Democratic members of Congress, and created three additional majority-Hispanic districts in the Texas House. But the interim maps were based largely on the state’s discriminatory original maps and were drawn before the DC court had a chance to weigh in.

“There’s no question the interim maps are an improvement,” says Michael Li, a Texas redistricting expert who runs the invaluable blog txredistricting.org. “But there still are a lot of open issues that need a hard look because the maps were hastily drawn and designed to be interim, and the San Antonio court didn’t have the benefit of the DC court’s ruling, including its finding of intentional discrimination.”

Li says that based on the state’s rapid population growth, legislators should have drawn an additional majority-Hispanic Congressional seat in North Texas and a Democratic-leaning district in Austin’s Travis County, along with six to seven more state House seats with a higher minority population that are more favorable to Democrats. Between 2010 and 2011, Texas gained 687,305 new eligible voters, 83 percent of them non-white, a trend that has political analysts speculating that Texas will turn purple in the not-so-distant future. But instead of accounting for this population growth and the DC court’s findings of discrimination, Texas Republicans want to make the interim maps permanent before the San Antonio court has a chance to act in order to fortify their majorities.

Every Democrat in the state House and eleven of twelve Democrats in the Senate signed a letter to Texas Attorney General Greg Abbott opposing adoption of the interim maps. “When you overlay the evidence presented at trial with the demographic explosion that’s happened in this state and the fact that minorities are unaccountable for at significant levels, it tells me we have a lot of work to do,” says Democratic State Rep. Trey Martinez Fischer, chairman of the Mexican American Legislative Caucus.

Perhaps to appease its critics, the legislature has scheduled a series of field hearings on the redistricting maps, starting this week in Dallas. “I believe that there is the capacity to make changes to the maps,” says Martinez Fischer. “There doesn’t appear to this rampant resistance that existed two years ago in what was a hyper-partisan environment. There seems to be reasonable minds who think we should make some changes, but I’m not sure that folks have been able to come to terms with it politically.” But Matt Angle says Texas Republicans are only holding hearings now, two years after passage of the original maps, in an attempt to convince the court in any future lawsuit that they’ve complied with the Voting Rights Act. “They’re clearly sham hearings,” he says. “They made it clear, when it’s all over, that they just intend to pass the interim maps.”

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The San Antonio court signaled, in a hearing last week, that the interim maps needed further review, especially in light of the DC court’s finding of intentional discrimination, which has put Republicans on the defensive. “Whether these [legislative] hearings are a façade or we’re really going to work in a meaningful way to adopt a resolution, the court is paying close attention,” says Martinez Fischer.

Texas has joined a lawsuit before the Supreme Court arguing that Section 5 of the Voting Rights Act is unconstitutional. In reality, the state is the perfect case study for why Section 5 is still badly needed. Without Section 5, there would have been no finding of intentional discrimination from the DC court and no modified interim maps drawn quickly by the San Antonio court. Instead, the discriminatory maps enacted by the legislature in 2011 would’ve immediately become law, the court in San Antonio might’ve taken years to get involved and members of Congress would have been elected under maps that would’ve otherwise been declared unconstitutional. (Texas’s voter ID law, which was similarly blocked by a federal court, would also be in effect right now.) “Anybody who says that Section 5 has outlived its utility hasn’t looked at Texas,” says Nina Perales, director of litigation for the Mexican American Legal Defense and Educational Fund. “It has played an extraordinary role in protecting minority voters.”

UPDATE: At a Texas Republican Party meeting in Dallas on May 20, Ken Emanuelson, a local Tea Party leader, was asked, "what can Republicans do to get black people to vote?" He responded, "I’m going to be real honest with you, the Republican Party doesn’t want black people to vote if they’re going to vote 9-to-1 for Democrats.” Comments like these don't bode well for the party's minority outreach.

How to Make Voting Easier

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

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

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

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

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

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

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

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

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

IRS Fallout: The Real Scandal Is Secret Money Influencing US Elections

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.

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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.

7 Ways North Carolina Republicans are Trying to Make it Harder to Vote


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.”

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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.

New Voter Suppression Efforts Prove the Voting Rights Act Is Still Needed

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.

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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.

Voting Rights Are Once Again Challenged at 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.

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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.

Congress Honors Rosa Parks While the Supreme Court Targets the Voting Rights Act

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.”

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