On American politics and policy.
Attorney General Eric Holder. (AP Photo/J. Scott Applewhite)
In one week last August, federal courts found that Texas’ voter ID law and redistricting maps were discriminatory and violated the Voting Rights Act. The Supreme Court’s recent decision invalidating Section 4 of the VRA, which previously covered Texas, tragically wiped away those rulings. Now the Department of Justice is once again stepping in to fight for voting rights in the Lone Star State.
The DOJ announced today that it is objecting to Texas’ voter ID law under Section 2 of the VRA and will also seek to join a similar lawsuit against the state’s redistricting maps. Last month, DOJ asked a court in Texas to force the state to approve its voting changes with the federal government for a period of time under another provision of the VRA, Section 3, based on a finding of intentional discrimination in the restricting case. The federal courts found last year that Texas’ new maps for Congress and the state house were “enacted with discriminatory purpose.”
A federal court blocked Texas’ voter ID law last year for very good reason. As I wrote last August, here are the facts of the case:
The state admitted that between 603,892 to 795,955 registered in voters in Texas lacked government-issued photo ID, with Hispanic voters between 46.5 percent to 120 percent more likely than whites to not have the new voter ID; to obtain one of the five government-issued IDs now needed to vote, voters must first pay for underlying documents to confirm their identity, the cheapest option being a birth certificate for $22 (otherwise known as a “poll tax”); Texas has DMV offices in only eighty-one of 254 counties in the state, with some voters needing to travel up to 250 miles to obtain a new voter ID. Counties with a significant Hispanic population are less likely to have a DMV office, while Hispanic residents in such counties are twice as likely as whites to not have the new voter ID (Hispanics in Texas are also twice as likely as whites to not have a car).
The court objected to the law specifically because “(1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty.” Along with North Carolina, Texas has the harshest and most absurd voter ID law in the nation. Case in point: you can use a gun permit to vote but not a student ID. The state is also doing nothing to encourage people to get the supposedly “free” ID; a month after the Supreme Court’s ruling, only six people in Texas had obtained one, even though 600,000 to 800,000 registered voters lack the government-issued ID.
In its new court filing, DOJ contends that the voter ID law “will disproportionately impact Hispanic and African-American voters in the State of Texas, resulting in their being disenfranchised at a greater rate than Anglo voters.” The department says the law, known as SB 14, was “motivated by discriminatory intent” and “will have a discriminatory result.”
From the brief:
While the stated purpose of SB 14 was to ensure the integrity of elections, voter ID proponents cited virtually no evidence during or after enactment of SB 14 that in-person voter impersonation—the only form of election fraud addressed by the identification requirements of SB 14—was a serious problem or that the State’s then-existing identification procedures had failed to prevent in-person voter impersonation.
The State knew or should have known that Hispanic and African-American Texans disproportionately lack the forms of photo ID required by SB 14, as compared to their Anglo counterparts.
Nevertheless, supporters of voter ID in the Texas legislature made little to no effort to analyze the potential effect of photo ID requirements on minority voters and rejected amendments requiring investigation of the effect of SB 14.
The long history of voting discrimination in Texas makes the new law all-the-more worrisome. DOJ writes: “The State of Texas’s history of official racial discrimination against its African-American and Hispanic citizens is longstanding and well-documented. Federal intervention has been necessary to eliminate numerous devices intentionally used to restrict minority voting in Texas.” Texas has lost more Section 5 enforcement suits than any other state.
It will be much harder for the Department of Justice to block Texas’ voting changes under Section 2 of the VRA than it would have been under Section 5, but they’re smart to try. (See my piece on why Section 2 is no replacement for Section 5.) “We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights,” Attorney General Eric Holder said today. “This represents the Department’s latest action to protect voting rights, but it will not be our last.”
Since the Court’s decision, seven Southern states have rushed to pass or implement onerous new voting restrictions. North Carolina recently adopted the country’s worst voter suppression law (which voting rights groups are also challenging under Section 2), with local election boards escalating attacks on student voting hours after its passage by shutting down polling places at college campuses and preventing students from running for office. Since Holder has vowed more action to protect voting rights, there’s a very good chance that the Tarheel State will be next on his list.
A student registers to vote in North Carolina. (AP Photo/Chuck Burton)
Hours after passing the country’s worst voter suppression law, North Carolina Republicans escalated their attempts to prevent students from participating in the political process.
• The GOP-controlled board of elections in Pasquotank County voted to disqualify Montravias King, a senior at historically black Elizabeth City State University, from running for city council, claiming King couldn’t use his student address to establish residency, even though he’s been registered to vote there since 2009. “The head of the county’s Republican Party said he plans to challenge the voter registrations of more students at the historically black university ahead of upcoming elections,” the AP reported.
• The GOP chair of the Forsyth County Board of Elections is moving to shut down an early voting site at historically black Winston-Salem State University because he claims students were offered extra credit in class for voting there. “He offered no proof such irregularities had occurred,” the Raleigh News and Observer noted.
• The GOP-controlled Watauga County Board of Elections in Boone, North Carolina, voted along party lines to close an early voting and general election polling place at Appalachian State University. Instead, the county limited early voting to one site in Boone and created the state’s third-largest voting precinct, with 9,300 voters at a precinct designed for 1,500, with only thirty-five parking places. It’s inaccessible by public transportation and over a mile from campus along a 45 mph road with no sidewalk. “I feel like the people (students) who really care might come all the way out here to vote,” said Ashley Blevins, a junior at Appalachian State, “but I know a lot of people who are like, ‘eh, it’s too far—I don’t think I’m going to walk that far,’ because they don’t really have another way of getting here.”
The attempt to prevent students from voting and running for office where they attend school is likely unconstitutional based on the 1979 Supreme Court case Symm v. United States. Nonetheless, the GOP board of elections in Pasquotank County formally prevented King from running for office today. King can then appeal to the state board of elections, which is also controlled by Republicans. If it refuses to accept his candidacy, he can appeal to the state court of appeals. But time is running short. The election is the second Tuesday in October, and ballots will soon be printed without his name on it. There’s no guarantee the courts will hear the case before the election.
“This is highly unusual,” says Anita Earls of the Southern Coalition for Social Justice, which is representing King. “I was on the state board of elections for two years and we never had a case where a candidate was disqualified a few weeks before the election.” Earlier this year, Pasquotank County GOP chair Richard Gilbert also purged fifty-six student voters from Elizabeth City State University, all African-American, from the voting rolls, claiming they were not properly register to vote at their campus address. At King’s hearing, Gilbert was accompanied by Susan Myrick of the Civitas Institute, a right-wing group funded almost exclusively by Art Pope, the conservative billionaire who is now Governor Pat McCrory’s budget director.
The shutting down of polling places on college campuses could also draw a legal challenge. “If there’s an intent to stop students from voting, that should be grounds for an equal protections challenge,” says Earls. “Can we get a state or federal court to stop it? That’s an open question.”
There were at least sixteen early voting sites located on college campuses during the 2012 election (UNC-Asheville, UNC-Chapel Hill, UNC-Charlotte, UNC-Greensboro, North Carolina State University, Appalachian State University, East Carolina University, North Carolina Central University, Winston-Salem State University, North Carolina A & T University, Duke University, Johnston County Community College, Wake Tech Community College (2 sites), Stanly County Community College, Cape Fear Community College). Ten additional early voting sites are located within half a mile of a college campus (Boiling Springs Town Hall, Gardner-Webb University; Smith Recreation Center, Fayetteville State University; Franklin County Board of Elections Office, Louisburg College; Gaston County Citizens Resource Center, Gaston College; Oak Hollow Mall, John Wesley College; Morrison Regional Library, DeVry University; Randolph County Office Building, Randolph County Community College; Cole Auditorium, Richmond County Community College; former DSS Building, Catawba College; Old Library Building, Brevard College). Former North Carolina State Senator Ellie Kinnard, who resigned from office yesterday to fight the voter suppression law and help people get voter IDs, told Rachel Maddow that she believes the North Carolina GOP will try to shut down every one of them.
It’s also worth remembering that North Carolina’s strict voter ID law does not allow student IDs. “The depth and breadth of the anti-democratic policy is pretty stunning,” says Earls.
None of this would be happening if the Supreme Court hadn’t invalidated Section 4 of the Voting Rights Act, which previously covered forty of 100 counties in North Carolina. As Rick Hasen noted, the extreme voter suppression measures adopted in the state are a clear reason why Congress needs to strengthen the VRA.
UPDATE: The GOP elections chair in Forsyth County has walked back his vow to close an early voting site at Winston-Salem State University, for now. Reports the Winston-Salem Journal:
The chairman of the Forsyth County Board of Elections said Monday evening that the board will not make a decision Tuesday about an early voting site at Winston-Salem State University.
Ken Raymond told the Journal last week that he would try to eliminate the Anderson Center at WSSU as a site for early voting, and could move to do it as early as Tuesday’s meeting.
But Raymond, a Republican, said in an email Monday: “For the board to make a decision now would be very premature. And when we have the discussion, all of my concerns, which are well known, will be addressed.”
He said the decision would not be made by the board until next year.
The three questions that will decide the fate of the voting rights in North Carolina.
A supporter of the North Carolina NAACP holds stickers for those gathered in the House chamber of the North Carolina General Assembly, Wednesday, April 24, 2013. (AP Photo/Gerry Broome)
Three lawsuits have been filed challenging North Carolina’s new voter suppression law, which I called the worst in the nation and Rick Hasen says is the most restrictive since the passage of the Voting Rights Act in 1965. Now comes the question: Will the challenges be successful? Here are three factors that will decide the outcome in North Carolina and the future of the VRA and voting rights more broadly.
1. Can Section 2 replace Section 5 of the VRA?
Conservatives opposed to Section 5 of the Voting Rights Act strenuously made the argument before and after the Supreme Court’s decision in Shelby County v. Holder that Section 2 was an adequate replacement for Section 5, which forced states with the worst history of voting discrimination to approve their voting changes with the federal government. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” Chief Justice Roberts wrote for the majority. Testifying before the House, Hans van Spakovsky of the Heritage Foundation called Section 2 “the heart of the VRA” and said “there’s no reason for Congress to take any action” to resurrect Section 5 with a new coverage map.
This is a clever and disingenuous marketing job. In truth, Section 2 has been used mostly to challenge at-large election schemes and to protect majority-minority districts during redistricting, and has been narrowed in recent years by the Supreme Court, most recently in Bartlett v. Strickland in 2009. The Department of Justice hasn’t filed a Section 2 lawsuit since 2009 and no major voting restrictions were blocked under Section 2 during the last election. It’s difficult to challenge voting changes before they go into effect under Section 2 and the cases often take years and millions of dollars to defend. “This is one of the fixes we need from Congress,” says Spencer Overton, a professor at George Washington University Law School. “We need some better, clearer standards for Section 2. The law is not well-developed.” Moreover, the more cases that are filed under Section 2, the more likely it is that anti-VRA conservatives will challenge its constitutionality.
Under Section 5, the burden would have been on North Carolina to prove that its voting changes were not discriminatory. Given the overwhelming facts of disparate racial impact in the law, DOJ or the courts would have almost certainly blocked its implementation. The strong evidence of racial discrimination in this case shows the urgent need for Congress to resurrect Section 5.
The outcome under Section 2 “will depend on a lot of discretionary factors instead of a straightforward law, which is why Congress needs to update the VRA,” says Overton. “It’s uncharted territory, so no one really knows what will happen,” says Dale Ho, director of the ACLU’s voting rights project. The federal lawsuits have been assigned to Judge Thomas Schroeder of the Middle District of North Carolina, a George W. Bush appointee regarded as an establishment Republican.
2. Did North Carolina Republicans intentionally discriminate against minority voters?
Lawsuits brought by the North Carolina NAACP and the ACLU ask that North Carolina be covered under Section 3 of the VRA, so that they must seek federal approval of their voting changes for a period of time, based on a “preponderance of evidence” of intentional discrimination. DOJ recently asked a court to do this with Texas. “The General Assembly has discriminated against African Americans and other voters of color in violation of the Fourteenth Amendment, and thus coverage under Section 3(c) is mandated under the Voting Rights Act,” the ACLU plaintiffs in North Carolina write.
The lawsuits argue that clear evidence of the law’s discriminatory burden on African-Americans—who were disproportionately more likely to lack ID and to use early voting and same-day voter registration, for example—was presented during the legislative debate and that Republican sponsors of the bill did nothing to alter the legislation. “After Shelby County v. Holder, the courts are going to have to take these intent claims seriously,” says Penda Hair, co-director of the Advancement Project, which filed suit on behalf of the North Carolina NAACP.
But North Carolina could argue, like Texas, that its law was simply aimed at disenfranchising Democrats, not minorities, and thus is not intentionally discriminatory. Proving intentional discrimination in court is very difficult. One change Congress could easily make is for Section 3 to cover voting changes that have a discriminatory impact, not intent. Under that standard, North Carolina would almost certainly have to clear its voting changes with the feds for a period of time.
3. Will voter suppression efforts produce an electoral backlash among minority voters?
It’s almost considered a truism today that laws meant to disenfranchise minority voters will motivate more minority voters to cast a ballot in order to defend their most sacred right, since that’s what happened in 2012. But the backlash against voter suppression in the last election was the result of a number of unique factors: an extremely well-organized and well-funded Obama campaign, a poorly run Romney campaign that did almost no outreach to minority voters and the fact that many of the new voting restrictions were blocked or repealed in key battleground states like Ohio, Wisconsin and Pennsylvania.
We shouldn’t assume that such a backlash will become the new normal, especially as more onerous laws are put on the books in the wake of the Supreme Court’s decision. “The 2012 election was an anomaly, because of the candidate and campaign at the top of the ticket,” says Overton. “In primaries, off-year elections, midterms, the resources aren’t there to mobilize people to the polls.” And even if the impact of a new voting restriction is ultimately tempered or overcome, that doesn’t make attempts to restrict the right to vote any less immoral. “I hope there is a backlash,” says Hair. “I hope everyone is so angry in North Carolina about efforts to take away their right to vote that they redouble their efforts. But you shouldn’t have to redouble your efforts in order to vote.”
That said, North Carolina is one of the states where you could potentially see a higher turnout as a result of the legislature’s draconian overreach. First off, the Republican legislature is deeply unpopular, with a 20 percent approval rating, and so is the new voting bill, with 39 percent approving and 50 percent disapproving. Seventy percent of moderates and 72 percent of African-Americans dislike the legislation. Second, the well-organized Moral Monday coalition has been mobilizing people against the legislature’s actions for months and is strongly positioned to get a lot of people to the polls. Third, the litigation against the law will keep this story in the news and make more people aware of its onerous details. Fourth, there is a competitive Senate race in North Carolina that could decide the balance of power nationally, with Democrat Kay Hagan likely facing North Carolina Speaker of the House Thom Tillis, who was named “legislator of the year” by the American Legislative Exchange Council in 2011 and is closely tied to all of the unpopular legislation passed by the General Assembly.
Republicans have done everything possible, through aggressive racial gerrymandering and onerous new voting restrictions, to protect their majorities in 2014 and beyond. In so doing, they’ve alienated a large segment of the electorate. The next election will be a good test case of the extent to which power-hungry politicians can successfully manipulate the democratic process in order to thwart the will of the people.
CORRECTION: I initially wrote that Section 2 has been used mostly for redistricting, which isn't true. Of the 1,265 successful Section 2 challenges, according to voting rights historian Morgan Kousser, 70 percent challenged at-large elections, which have been used since the passage of the VRA to thwart growing minority voting power, and 12 percent related to redistricting. "What should be emphasized," says Kousser, "is a point that you and I and many others have made before: Section 5 has primarily stopped local changes, and Section 2 has stopped changes that were already in place or in areas not covered by Section 5. While it may be that big statewide redistricting and voter id changes will attract Section 2 lawsuits, election laws in small towns and rural areas, and even in substantial cities, will either go unnoticed or be ineffectively attacked or the expense will drain voting rights lawyers." It's also worth noting that 85 percent of DOJ objections under Section 5 were to local election changes that are unlikely to be challenged under Section 2.
A supporter of the North Carolina NAACP holds stickers for those gathered in the House chamber of the North Carolina General Assembly, Wednesday, April 24, 2013. (AP Photo/Gerry Broome)
Today, North Carolina Governor Pat McCrory signed the nation’s worst voter suppression law. The sweeping law requires strict government-issued photo ID to cast a ballot, cuts the number of early voting days by a week, eliminates same-day voter registration during the early voting period, makes it easier for vigilante poll watchers to challenge the validity of eligible voters and expands the influence of unregulated corporate money in state elections.
Two lawsuits were filed today challenging the voting restrictions as racially discriminatory in federal court under Section 2 of the Voting Rights Act. A third challenge, to the voter ID provision, will be filed in state court tomorrow morning.
The lawsuit brought by the North Carolina NAACP and the Advancement Project alleges that the law violates Section 2 and the Fourteenth and Fifteenth amendments because it “imposes unjustified and discriminatory electoral burdens on large segments of the state’s population and will cause the denial, dilution, and abridgement of African-Americans’ fundamental right to vote.” It alleges that five provisions of the law disproportionately impact African-American voters—the voter ID requirement, the cuts to early voting, the elimination of same-day voter registration, the refusal to count out-of-precinct provisional ballots, and the increase in the number of poll watchers.
African-Americans are 23 percent of registered voters in North Carolina, but made up 29 percent of early voters in 2012, 30 percent of those who cast out-of-precinct ballots, 34 percent of the 318,000 registered voters without state-issued ID and 41 percent of those who used same-day registration. “A staggering 70 percent of African-American voters who voted in the 2012 general election used early voting,” the lawsuit notes. It says that “race was a motivating factor in the law’s enactment” and that “the General Assembly enacted those provisions with knowledge and intent that such actions would affect African-American voters disproportionately.”
A separate lawsuit brought by the Southern Coalition for Social Justice and the ACLU on behalf of the League of Women Voters, Common Cause and the A. Philip Randolph Institute also alleges that the elimination of same-day registration, the cuts to early voting and the ban on out-of-precinct provisional ballots violate Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment because of their disparate racial impact. These changes will make North Carolina the new Florida when it comes to long lines and electoral chaos.
In addition, the Southern Coalition for Social Justice will file another lawsuit tomorrow [UPDATE: complaint filed on August 13] challenging the voter ID provision in state court, alleging that under Article 6, Section 1 of the North Carolina Constitution, the legislature doesn’t have the power to set new voter qualifications. The plaintiffs will include college students who will not be able to vote in North Carolina because they have out-of-state driver’s licenses and their student IDs will not be accepted, and elderly residents of the state who were not born in North Carolina and will have to pay to get a birth certificate to validate their identity, otherwise known as a poll tax, or they cannot get a birth certificate at all.
One of those people is Alberta Currie, a 78-year-old woman from Hope Mills, North Carolina. Currie was born at home with a midwife, like so many African-Americans in the Jim Crow South, and doesn’t have a birth certificate. Her driver’s license from Virginia is now expired. Though she’s voted consistently since 1956—back when African-Americans couldn’t even register to vote in the South or had to move to the back of the line when a white voter showed up at the polls—she could be disenfranchised by the new law. “I won’t have no rights if I can’t vote,” she says. The voter ID provision disproportionately impacts African-Americans (23 percent of registered voters but 34 percent of those without ID), women (54 percent of active voters but 66 percent of those without ID), the elderly (voters over 65 are 18 percent of active voters but 26 percent of those without ID) and students (13 percent of active voters but 16 percent of those without ID).
“North Carolina has a long and sad history of official discrimination against African Americans, including official discrimination in voting that has touched upon the right of African Americans and other people of color to register, vote, or otherwise participate in the democratic process,” notes the SCSJ and ACLU lawsuit. “Over the past 30 years in North Carolina, there have been over thirty successful cases brought under Section 2 of the Voting Rights Act and forty objections to discriminatory changes to voting laws lodged by the Department of Justice under Section 5 of the Voting Rights Act…. Based on concerns about intimidation at the polling place, the United States Justice Department sent federal observers to North Carolina.”
Groups are challenging the voting laws under Section 2 of the VRA, a nationwide prohibition on racial discrimination in voting, because Section 5 is no longer operable. Forty of one hundred counties in North Carolina were previously covered under Section 4 of the Voting Rights Act, which the Supreme Court invalidated in June, and would have needed to obtain federal approval for their voting changes. That would’ve been unlikely, given the clear evidence of disparate racial impact. The SCSJ/ACLU lawsuit asks the court to “bail in” North Carolina under Section 3 of the VRA, like the Justice Department recently did with Texas, so that it will have to approve future voting changes with the federal government.
Challenging voting restrictions like voter ID, cuts to early voting and the elimination of same-day registration under Section 2 is largely uncharted territory, since the bulk of previous Section 2 challenges applied to redistricting. The Department of Justice, for example, hasn’t brought a Section 2 case since 2009. According to the DOJ, “a plaintiff could establish a violation of the section if the evidence established that, in the context of the ‘totality of the circumstance of the local electoral process,’ the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process.” In practice, Section 2 cases are expensive, lengthy and usually apply to voting changes already in effect.
But since the Supreme Court took away their most potent weapon for fighting voting discrimination, voting rights groups have no choice but to hope that the compelling and disturbing facts of this case persuade the courts to block the “monster” new law.
Within hours of Gov. Pat McCrory signing a Republican-backed bill this week making sweeping changes to the state’s voting laws, local elections boards in two college towns made moves that could make it harder for students to vote.
The Watauga County Board of Elections voted Monday to eliminate an early voting site and election-day polling precinct on the campus of Appalachian State University.
The Pasquotank County Board of Elections on Tuesday barred an Elizabeth City State University senior from running for city council, ruling his on-campus address couldn’t be used to establish local residency. Following the decision, the head of the county’s Republican Party said he plans to challenge the voter registrations of more students at the historically black university ahead of upcoming elections.
Remember, North Carolina Republicans initially considered eliminating the $2,500 child dependancy tax credit for the parents of students who voted where they go to school. I'm surprised they didn't just include an outright ban on student voting in the final bill.
First Wisconsin. Now North Carolina.
“Today is a triumph for freedom as huge as any victory that has ever been won on any battlefield,” President Lyndon Johnson said on August 6, 1965, when he signed the Voting Rights Act into law.
The VRA quickly became known as the most important piece of modern civil rights legislation and one of the most consequential laws ever passed by Congress. It led to the abolition of literacy tests and poll taxes; made possible the registration of millions of minority voters; forced states with a history of voting discrimination to clear electoral changes with the federal government to prevent future discrimination; and laid the foundation for generations of minority elected officials.
Inside the US Capitol Rotunda, LBJ announced the signing of the bill flanked by a bust of President Lincoln, who exactly 104 years earlier had signed the Confiscation Act freeing Confederate slaves. Among the many civil rights leaders present on that historic day forty-eight years ago was John Lewis, the 25-year-old chairman of the Student Nonviolent Coordinating Committee, who had nearly died four months earlier marching for the right to vote in Selma, Alabama. He was the only veteran of the “Bloody Sunday” march to attend the signing ceremony, as historian Gary May notes in his new history of the VRA, “Bending Toward Justice.” Lewis remembered that day in August 1965 as “a high point in modern American, probably the nation’s finest hour in terms of civil rights.”
Twenty-one years later, Lewis won election to Congress from Georgia’s 5th House district, representing the hometown of his idol Martin Luther King Jr. He has the pen LBJ gave him after signing the VRA framed in his Atlanta home and a bust of the thirty-sixth president in his Washington office. Without the VRA, there would be no Congressman Lewis or Senator Rubio or President Obama. “When Lyndon Johnson signed the Voting Rights Act,” Lewis said on a trip to Alabama in March, “he helped free and liberate all of us.”
Consider how the VRA transformed American democracy:
• In 1965, only 31 percent of eligible black voters were registered to vote the in the seven Southern states originally covered by the VRA, compared to 72 percent of white voters. The number of black registered voters was as low as 6.7 percent in Mississippi. In Selma, only 393 of 15,000 eligible black voters were registered when LBJ introduced the VRA in March 1965.
Today, 73 percent of black voters are registered to vote, according to the US Census and black voter turnout exceeded white turnout in 2012 for the first time in recorded history.
• In 1965, there were fewer than 500 black elected officials nationwide.
Today, there are more than 10,500.
• In 1965, there were only five black members of Congress.
Today, there are forty-four. The 113th Congress is the most diverse in history, with ninety-seven minority elected representatives.
• Since 1965, the Justice Department blocked at least 1,150 discriminatory voting changes from going into effect under Section 5 of the VRA.
Yet the Supreme Court’s decision in late June invalidating Section 4 of the VRA threatens to roll back much of the progress made over the past forty-eight years. Since the ruling, six Southern states previously covered under Section 4 have passed or implemented new voting restrictions, with North Carolina recently passing the country’s worst voter suppression law. The latest assault on the franchise comes on the heels of a presidential election in which voter suppression attempts played a starring role, with 180 bills introduced in forty-one states to restrict access to the ballot in 2011–12, which NAACP President Ben Jealous called “the greatest attacks on voting rights since segregation.” The broad scope of contemporary voting discrimination is why John Lewis testified before Congress last month that “the Voting Rights Act is needed now like never before.”
The spread of voter suppression efforts to states like Pennsylvania, where over 500,000 registered voters could be disenfranchised by a voter ID law before the courts, is a strong argument for expanding, not eliminating, the key provisions of the VRA. Sections 2 and 3 of the VRA, as currently written, are no substitute for Sections 4 and 5. Under Section 2, discriminatory voting changes can only be challenged after lengthy and expensive litigation, with the burden of proof on those facing discrimination. Under Section 3, a court has to find that a state (like Texas) was guilty of intentional discrimination, a very high bar to clear, in order to force it to approve its voting changes with the federal government for a period of time. Under Section 5, however, the states with the worst history of discrimination had to prove that their voting changes were not discriminatory before they became law. As Chief Justice Earl Warren wrote in 1966, the genius of the law was to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.”
The evil of voting discrimination remains all-too-common today, which is why Congress urgently needs to strengthen the VRA. Representative James Sensenbrenner (R-WI), the former chair of the House Judiciary Committee who presided over the overwhelming congressional reauthorization of the VRA in 2006, recently told CQ Roll Call, “There are a lot of Republicans who are [on board], but they don’t want to be publicly named.” If there is indeed a silent majority of Republicans who still support the VRA, let’s hope they speak up soon. Otherwise, on the fiftieth anniversary of the VRA in 2015, we may be mourning its demise instead of celebrating its transformational impact.
A police officer watches over demonstrators near the state legislature during "Moral Monday" protests at the General Assembly in Raleigh, N.C., Monday, June 24, 2013. (AP Photo/Gerry Broome)
I’ve been in Texas this week researching the history of the Voting Rights Act at the LBJ Library. As I’ve been studying how the landmark civil rights law transformed American democracy, I’ve also been closely following how Republicans in North Carolina—parts of which were originally covered by the VRA in 1965—have made a mockery of the law and its prohibition on voting discrimination.
Late last night, the North Carolina legislature passed the country’s worst voter suppression law after only three days of debate. Rick Hasen of Election Law Blog called it “the most sweeping anti-voter law in at least decades” The bill mandates strict voter ID to cast a ballot (no student IDs, no public employee IDs, etc.), even though 318,000 registered voters lack the narrow forms of acceptable ID according to the state’s own numbers and there have been no recorded prosecutions of voter impersonation in the past decade. The bill cuts the number of early voting days by a week, even though 56 percent of North Carolinians voted early in 2012. The bill eliminates same-day voter registration during the early voting period, even though 96,000 people used it during the general election in 2012 and states that have adopted the convenient reform have the highest voter turnout in the country. African-Americans are 23 percent of registered voters in the state, but made up 28 percent of early voters in 2012, 33 percent of those who used same-day registration and 34 percent of those without state-issued ID.
And that’s just the start of it. In short, the bill eliminates practically everything that encourages people to vote in North Carolina, replaced by unnecessary and burdensome new restrictions. At the same time, the bill expands the influence of unregulated corporate influence in state elections. Just what our democracy needs—more money and less voting!
“I want you to understand what this bill means to people,” said Representative Mickey Michaux (D-Durham), the longest-serving member of the North Carolina House and a veteran of the civil rights movement who grew up in the Jim Crow South. “We have fought for, died for and struggled for our right to vote. You can take these 57 pages of abomination and confine them to the streets of Hell for all eternity.”
Here are the details of everything bad about the ball, via North Carolina Policy Watch. It’s a very long list:
The end of pre-registration for 16 & 17 year olds
A ban on paid voter registration drives
Elimination of same day voter registration
A provision allowing voters to be challenged by any registered voter of the county in which they vote rather than just their precinct
A week sliced off Early Voting
Elimination of straight party ticket voting
A provision making the state’s presidential primary date a function of the primary date in South Carolina
A provision calling for a study (rather than a mandate) of electronic candidate filing
An increase in the maximum campaign contribution to $5,000 (the limit will continue to increase every two years with the Consumer Price Index from the Bureau of Labor Statistics)
A provision weakening disclosure requirements for ”independent expenditure” committees
Authorization of vigilante poll observers, lots of them, with expanded range of interference
An expansion of the scope of who may examine registration records and challenge voters
A repeal of out-of-precinct voting
A repeal of the current mandate for high-school registration drives
Elimination of flexibility in opening early voting sites at different hours within a county
A provision making it more difficult to add satellite polling sites for the elderly or voters with disabilities
New limits on who can assist a voter adjudicated to be incompetent by court
The repeal of three public financing programs
The repeal of disclosure requirements under “candidate specific communications.”
“We will see long lines, many citizens turned away and not allowed to vote, more provisional ballots cast but many fewer counting, vigilante observers at the polling place and all disproportionately impacting black voters,” says Anita Earls, executive director of the Durham-based Southern Coalition for Social Justice and a former deputy assistant attorney general for civil rights in the Clinton administration. “This new law revives everything we have fought against for the past ten years and eliminates everything we fought for.”
The legislation should be a wake-up call for Congress to get serious about resurrecting the Voting Rights Act and passing federal election reform. Six Southern states have passed or implemented new voting restrictions since the Supreme Court’s decision last month invalidating Section 4 of the VRA, which will go down in history as one of the worst rulings in the past century. Voting rights groups (and perhaps the federal government) will soon challenge at least some of the new restrictions through a preliminary injunction, others sections of the VRA, or the state constitution. But if Section 5 of the VRA was still operable, North Carolina would have to clear all of these changes with the federal government and prove they are not discriminatory—practically herculean task given the facts. The new law would’ve been blocked or tempered as a result. Instead, the North Carolina legislature interpreted the Court’s decision as a green light for voter suppression, which it was, and made the bill as draconian as possible.
Move aside Florida, North Carolina is now the new poster child for voter suppression. The Moral Monday movement in the state is now more important than ever. Maybe someday we’ll look back at this period as the turning point when the nation realized just how important the Voting Rights Act was and is.
Ari Berman documents the grassroots movement that is fighting back against the North Carolina GOP’s right-wing agenda.
Poll worker stickers to a tabletop on election day on Tuesday, November 6, 2012. (AP Photo/Mark Humphrey)
This week, the North Carolina legislature will almost certainly pass a strict new voter ID law that could disenfranchise 318,000 registered voters who don’t have the narrow forms of accepted state-issued ID. As if that wasn’t bad enough, the bill has since been amended by Republicans to include a slew of appalling voter suppression measures. They include cutting a week of early voting, ending same-day registration during the early voting period and making it easier for vigilante poll-watchers to challenge eligible voters. The bill is being debated this afternoon in the Senate Rules Committee. Here are the details, via North Carolina State Senator Josh Stein (D-Wake County):
If anyone had any doubt about the bill’s intent to suppress voters, all he/she has to do is read it. The bill now does the following:
*shortens early voting by 1 week,
*eliminates same day registration and provisional voting if at wrong precinct,
*prevents counties from offering voting on last Saturday before the election beyond 1 pm,
*prevents counties from extending poll hours by one hour on election day in extraordinary circumstances (like lengthy lines),
*eliminates state supported voter registration drives and preregistration for 16/17 year olds,
*repeals voter owned judicial elections and straight party voting,
*increases number of people who can challenge voters inside the precinct, and
*purges voter rolls more often.
Meanwhile, it floods the democratic process with more money. The bill makes it easier for outside groups to spend on electioneering and reduces disclosure of the sources. It also raises the contribution limits to $5k per person per election from $4k and indexes to amount to rise with inflation.
The bill even eliminates Citizens Awareness Month to encourage voter registration, notes Brent Laurenz, executive director of the nonpartisan North Carolina Center for Voter Education. Because God forbid we encourage people to vote! The proposed bill eliminates nearly all of the democratic advances that made North Carolina one of the most progressive Southern states when it comes to voting rights and one of the top fifteen states in voter turnout nationally, guaranteeing that there will be longer lines at the polls, less voter participation and much more voter confusion.
The legislation is likely to be deeply unpopular. For example, 56 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.
In addition, 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.
Republicans in North Carolina have taken abuse of democratic process to a whole new extreme: they’ve won elections with the help of huge corporate money, they’ve gerrymandered the legislative maps to resegregate the state and drastically limit the representation of their political opponents, they’ve passed a slew of extreme right-wing bills in the past few months to benefit the top 1 percent and harm everyone else—and now they’re going all out to prevent those opposed to that political agenda from exercising their democratic rights. “There’s a certain evil symmetry to the proposal,” writes Rob Schofield, director of research for NC Policy Watch. “After having spent months passing scores of regressive and destructive proposals into law, state leaders are now, like thieves covering their tracks, doing everything in their power to make sure they’re not caught or punished for their actions.”
In the final depressing twist, North Carolina no longer has to clear these voting changes with the federal government, since the Supreme Court invalidated Section 4 of the Voting Rights Act. Nevertheless, it’s almost certain parts of the legislation—if enacted—will be challenged under the state constitution or other provisions of the VRA, and could very well spark a major backlash among North Carolina voters. In twelve weeks, more than 900 North Carolinians have been arrested for peaceful protest as part of the Moral Monday movement. Recently, Senate Rules Committee Chairman Tom Apodaca boasted that North Carolina would no longer have to go through the legal headache of complying with Section 5 of the VRA. Responded Rev. Barber of the North Carolina NAACP, “If you think you can take away our voting rights, you’ll have a headache.”
[UPDATE, 3:22 pm, July 23: The bill passed the Senate Rules Committee this afternoon, now goes to full Senate and then to House.]
North Carolina Capitol. (Courtesy of Flickr user Jim Bowen)
As Congress held hearings this week on whether to resurrect the heart of the Voting Rights Act, the North Carolina Senate introduced a harsh new voter ID law that could be passed in a matter of days. (See my new piece on the state’s Moral Monday protest movement for how activists are resisting the GOP’s agenda.)
The Senate version of the bill, posted today, is significantly tougher than the House bill passed in April. North Carolina was one of fifteen states subject to Section 4 of the Voting Rights Act, which the Supreme Court recently ruled unconstitutional, so the state no longer needs to clear its voting changes with the federal government. North Carolina Republicans have acted accordingly, making a very bad law even worse.
According to the state’s own numbers, 316,000 registered voters don’t have state-issued ID; 34 percent are African-American and 55 percent are registered Democrats. Of the 138,000 voters without ID who cast a ballot in the 2012 election, 36 percent were African-American and 59 registered percent Democrats. The new draft of the bill does not allow student IDs for voting, making it among the most restrictive laws in the country. It’s worth noting that voter fraud in the state, which the legislation purports to stop, is incredibly rare; there were only two alleged cases of voter impersonation between 2000 and 2010, when millions of votes were cast.
A number of other harsh voting restrictions—such as cutting early voting, ending same-day voter registration and penalizing the parents of students who vote where they go to school—could still be added to the bill or considered separately by the legislature before they leave for the summer. See my post “7 Ways North Carolina Republicans are Trying to Make it Harder to Vote” for more details.
Bob Hall of Democracy North Carolina passed on his notes of how the Senate bill is stricter than the House bill:
A) Cuts in range of acceptable photo IDs:
—NO college student IDs are acceptable (House allowed NC public universities and community college ID).
—NO out-of-state driver’s license is acceptable unless you’ve just recently registered to vote (i.e., less than 90 days before the election where you’re showing your ID). House allowed government photo IDs created by other states.
—NO North Carolina county or municipal government or public employee IDs is acceptable.
—NO photo ID issued by a public assistance agency is acceptable—another slap at low-income voters.
—House allowed expired photo ID to be used, up to 10 years after expiration. But Senate version only allows the other House exception: a voter over 70 can use an expired photo ID for any length of time if it was current when they were 70.
B) Cuts in education outreach:
—NO advisory board, as in House, to advise State Board of Elections about strategies and partner groups to use in a comprehensive education program about the ID requirement.
—NO provision for additional staff at State Board to do education.
—NO reference to using the Judicial Voter Guide to include information about ID.
The actions of the North Carolina legislature are a case study for why Congress needs to revitalize Sections 4 and 5 of the VRA and strengthen other parts of the law (see my related story, A New Strategy for Voting Rights). North Carolina will soon become the sixth Southern state to pass or implement a new voter ID law since the Supreme Court’s decision last month. The next Moral Monday protest, on July 22, will focus on voting rights—it promises to be a timely occasion.
[I discussed North Carolina & the VRA on All In With Chris Hayes last night with Democratic leader of the NC House Rep. Larry Hall]
Representative John Lewis. (AP Photo/Charles Dharapak)
[See below for update on House hearing]
The Senate Judiciary Committee held its first hearing today on the Voting Rights Act since the Supreme Court gutted the landmark civil rights law last month. The key witnesses were civil rights icon Representative John Lewis and Representative James Sensenbrenner, the former chair of the House Judiciary Committee who led the effort to overwhelmingly reauthorize the VRA in 2006.
In his testimony, Lewis described how he almost died fighting for the right to vote in 1965 and how friends of his never made it out of Mississippi alive. “I remember these problems and this struggle like it was yesterday,” Lewis said. He noted the “deliberate and systematic” attempt to make it harder for voters to participate in the last election, when nineteen states passed twenty-five new voting restrictions, saying “the Voting Rights Act is needed now like never before.”
His colleague Representative Sensenbrenner called the VRA the most important civil rights law of the twentieth century and said, “We cannot afford to lose it now.” The court’s decision presents Congress with a “historic opportunity” to draft a revised Section 4 of the VRA, he said, covering jurisdictions with “recent and egregious voting records.” Sensenbrenner mentioned that he proudly displays the pen Ronald Reagan used to sign the 1982 reauthorization of the VRA. “Though the Voting Rights Act has been enormously successful, we know our work is not complete,” he said. The key will be whether Sensenbrenner can bring fellow House Republicans along with him, like he did in 2006. “I’m certainly on board to put something together that will last for a long time,” he said.
Tomorrow, the House Judiciary Committee Subcommittee on the Constitution will hold its first hearing on the VRA, which will give a good indication of where House Republicans stand on the issue. The subcommittee chairman, Representative Trent Franks of Arizona, was one of only thirty-three House Republicans to vote against the VRA’s reauthorization in 2006.
Beyond Sensenbrenner, there wasn’t much enthusiasm among Republicans on the Senate Judiciary Committee to revise the VRA. Only two Republicans attended the hearing, Senators Grassley and Cruz, neither of whom stayed the full time. Cruz praised the Supreme Court’s decision, while Grassley and witness Michael Carvin, a prominent Republican lawyer at Jones Day, suggested that Section 2 would be an adequate replacement for Sections 4 & 5. (Section 4 determines how states are covered under Section 5, which requires that states with the worst history of voting discrimination clear their voting changes with the federal government.)
Luz Urbáez Weinberg, a Republican city commissioner in Aventura, Florida, in Miami-Dade County, strongly disagreed with that argument. “Section 5 has no peer,” she said. “Section 2 is not sufficient.” Section 5 puts the burden of proof on targeted jurisdictions to show that their voting changes are not discriminatory before they go into effect, whereas Section 2 forces plaintiffs to show that a voting change is discriminatory, usually only after it has gone into effect, following lengthy, expensive litigation. It’s the difference between stopping a crime before it exists versus forcing the victim of the crime to seek justice afterward.
Not only is Section 5 far more effective than Section 2, it has accurately targeted those places with the worst history of voting discrimination. According to voting rights historian Morgan Kousser, “From 1957 through 2006, almost 94 percent of all voting rights minority lawsuits, legal objections and out-of-court settlements occurred in jurisdictions now subject to federal oversight under the Section 4 formula.”
So what can Congress do now? It can draft a revised Section 4 based on more current data. It can make it easier to “bail-in” states with recent voting violations under Section 3 (which MSNBC’s Adam Serwer called a “secret weapon”) and make it easier for voting rights groups and the DOJ to win Section 2 cases.
It was obvious from the hearing that Congress will not come to a consensus unless it faces a tremendous amount of pressure to do so. Voting rights supporters, as I wrote recently, have a four-pronged strategy for responding to the Court’s decision:
Challenge new voting restrictions through preliminary injunctions and Section 2 of the VRA (which applies nationwide, but puts the onus on plaintiffs to prove that a law is discriminatory after enactment); pressure Congress to reconstruct the VRA; draft a new coverage formula for Section 4; and mobilize indignant voters to make their voices heard, starting with the fiftieth anniversary of the March on Washington on August 28.
The need for Congress to act is clear. The Justice Department blocked 1,116 discriminatory voting changes from taking effect under Section 5 from 1965 to 2004 and objected to thirty-seven electoral proposals after Congress reauthorized the law in 2006. Immediately following the decision, five Southern states rushed to implement new voter-ID laws that disproportionately affect young and minority voters. A sixth covered state, North Carolina, is on the verge of passing a new voter ID law by the end of this week. According to the state’s own numbers, 316,000 registered voters don’t have state-issued ID; 34 percent are African-American and 55 percent are registered Democrats. Of the 138,000 voters without ID who cast a ballot in the 2012 election, 36 percent were African-American and 59 registered percent Democrats. The new draft of the bill does not allow student IDs for voting and would cost $10 to obtain unless a voter signs a form saying they cannot afford the ID under penalty of perjury, making it among the most restrictive laws in the country. A number of other harsh voting restrictions—such as cutting early voting, ending same-day voter registration and penalizing the parents of students who vote where they go to school—could be added to the bill. (It's worth noting that voter fraud in the state, which the legislation purports to stop, is incredibly rare; there were only two prosecutions of voter impersonation between 2000 and 2010.)
Simply looking at what’s happened since the Court’s decision—not to mention the four overwhelming reauthorizations of the VRA in 1970, 1975, 1982 and 2006—should give Congress ample evidence on which to act.
[UPDATE, July 18, 1:20 pm]:
The House Judiciary Committee just concluded its first hearing on the VRA, where it was clear that no consensus exists between the parties on whether to fix the VRA or how to do so. The Republican congressmen and witnesses maintained that existing parts of the VRA, notably Sections 2 and 3, were sufficient replacements for Sections 4 and 5 and thus, in the words of Hans von Spakovsky of the Heritage Foundation: “there’s no reason for Congress to take any action.”
Rep. Goodlatte (R-VA), chairman of the Judiciary Committee, said that even though Section 4 has been ruled unconstitutional, thereby paralyzing Section 5, “other very important provisions remain in place.” Added Christian Adams, a former Bush Administration official in the DOJ civil rights division who pushed the bogus lawsuit against the New Black Panther Party in Philadelphia: “Reports of the demise of the Voting Rights Act have been greatly exaggerated. What remains? Everything else.” Von Spakovsky called Section 2 “the heart of the VRA.”
It’s worth expanding on how disingenuous these claims are. As I noted above, neither Section 2 nor Section 3 come close to having the impact of Section 5. As election law expert Rick Hasen writes: “Section 2 is no substitute for section 5. It has virtually no teeth these days outside of the redistricting area…It has not been used successfully go to after voter id, and it would be hard to use it (given the statutory standard) to go after problems with voter registration and long lines. Even worse, if courts start reading section 2 more broadly to cover things like voter id, then section 2 itself could be found by the Roberts Court to be unconstitutional.” As Justice Kennedy said in 2009 (and seems to have forgotten in 2013), “Section 2 cases are very expensive. They are very long. They are very inefficient.” That’s why DOJ – which blocked discriminatory voting laws in places like Texas during the last election under Section 5 - hasn’t filed a single Section 2 lawsuit during the Obama administration.
Moreover, states with recent voting violations can only be covered under Section 3 of the VRA if plaintiffs show that voting changes were enacted with intentional discrimination, which is almost impossible to prove. Congress could amend Section 3 so that plaintiffs only have to prove the effect of discrimination to win a case, but absent that, Section 3 will remain a little-used remedy.
Section 5 is so important because, as Bob Kengle of the Lawyers’ Committee for Civil Rights noted, “racial discrimination in voting needs to be stopped before it occurs.” Spencer Overton of George Washington University Law School likened it to the metal detector he passed through before testifying today in the House.
Rep. Sensenbrenner is still the only high-profile Republicans to argue that Section 5 remains vital. The rest of the GOP seems to be reciting talking points from the Heritage Foundation. Unless a tremendous amount of pressure is brought upon Congress to resurrect Section 4 or to strengthen the other parts of the VRA – starting during the August recess – chances for VRA reform look pretty slim.
Chief Justice John Roberts. (AP Photo)
In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”
Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.”
Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?
It doesn’t seem like the Chief Justice has a very sound grasp of the Constitution when it comes to the VRA. Richard Posner, an esteemed conservative legal theorist at the University of Chicago and a judge on the US Court of Appeals for the Seventh Circuit, wrote in Slate that Roberts struck down Section 4 of the VRA for violating the “fundamental principle of equal sovereignty,” which, as Posner writes “is a principle of constitutional law of which I had never heard—for the excellent reason that…there is no such principle…The opinion rests on air.” The extensive record developed by Congress, most recently in 2006, Posner writes, “should have been the end of this case.”
David Gans of the Constitutional Accountability Center made a similar point to Steve Benen of MSNBC’s MaddowBlog yesterday:
The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief Justice Roberts’ opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the ‘letter and spirit of the Constitution,’ but he never really explained why.
His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg’s powerful dissent demonstrates, the Court’s opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment.
Voting rights historian Steven Lawson, author of numerous books about the VRA and its impact, shared his like-minded conclusion with me. Writes Lawson:
Apparently the first amendment and the 14th amendment are meant to protect corporations and states but not the folks for whom it was designed. This is an activist court that decreed the coverage formula was outdated even though Congress held numerous hearings and found evidence that proved otherwise. So much for the conservative principle of judicial deference…This is an ideological, ahistorical decision.
Justice Roberts has been opposed to the VRA for three decades, ever since he was a young lawyer in the Reagan Justice Department. His sweeping and radical decision yesterday was more about ideology than the law, constitutional principles or congressional deference be damned.
Can Congress fix what the Supreme Court wrecked?