A little over a month ago, the Supreme Court threw out Section 4 of the Voting Rights Act. That was the part that forced the former Jim Crow states to clear with the federal government any changes in voting rules. Now that those states were off the federal leash, no one knew exactly what would happen next. But there were several possibilities:
The Jim Crow states could have proved Chief Justice Roberts right. “Nearly fifty years [after the original Voting Rights Act was passed],” the Chief Justice wrote, “things have changed dramatically.” In this scenario it would become clear that the South no longer needed federal oversight. States would adjust their voting practices occasionally as circumstances demanded, but not renew the effort to disenfranchise nonwhites.
In her dissenting opinion, Justice Ginsburg disagreed.
Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated.
Score one for Ginsburg. As soon as the VRA decision rolled out of the printers, states started whittling away at voting rights. The current champion is North Carolina, which on July 25 passed an omnibus voter suppression law that the governor has pledged to sign soon, despite seeming to know little about it. Salon sums up:
They have, in essence, included in this bill every conceivable voter suppression tactic that has ever been dreamed up over the past decade by the Republican Party — and then some.
Raleigh’s WRAL has a detailed list, but every way you can imagine to restrict voting (short of just suspending elections entirely) is there: photo ID (not accepting student IDs, because students trend Democratic), less early voting, shorter polling hours, no provisional ballots, no same-day registration, restrictions on registration drives …
As in other Republican-dominated states that have passed such measures (but usually piecemeal), there is no evidence at all of voter impersonation — the only kind of fraud photo IDs hinder — in North Carolina. (Last month I described how an extensive South Carolina investigation of in-person voter fraud failed to find any.) NC has some history of absentee-ballot fraud, which this law does not address. (Why discourage absentee voting when it trends Republican?)
Photo-ID requirements essentially target voters who don’t drive — mainly the poor, the disabled, and big-city singles, all of whom trend Democratic. Democracy North Carolina estimates that blacks are 23% of the state’s registered voters, but 34% of the registered voters without acceptable photo IDs. (Slicing those numbers a different way: 3.8% of registered white voters lack an ID, while 7.4% of registered blacks do.)
Reduced early voting and short polling hours target people who have a hard time getting off work or making transportation connections — mainly the working poor and (again) non-drivers. Black voters make up 29% of early voters and 34% of those who register on election day.
Congress could update Section 4 of the VRA to meet the Court’s guidelines. This option was always going to be tricky, because Justice Roberts didn’t really say what would make him happy. (That was my main complaint in This Court Sucks.) But still, the 2006 re-authorization of the VRA passed the Senate 98-0 and the House 390-33, and a lot of those people are still around. So you’d think Congress would be motivated to make the law work again.
No luck there either. The House subcommittee holding hearings on the VRA is chaired by Trent Franks, who was one of the 33 voting against renewing the VRA in 2006. The witnesses the subcommittee’s Republican majority called had a unified message: Don’t bother; there’s no problem that needs fixing.
When you consider that the states covered by Section 4 are overwhelmingly represented by Republicans (strange coincidence there, don’t you think?) and Republicans control the House, the prospects for a reasonable revision seem remote.
The Justice Department could get a federal court to re-instate preclearance on specific states for specific reasons. OK, Section 4 is most likely gone for good, so Section 5 (preclearance) doesn’t function automatically. But there’s still Section 3c, containing what for some reason is called the “pocket trigger”. Translating from the legalese: If the Attorney General wins a voting-rights case in federal court against some state, the court can do more than just reverse whatever discriminatory practice the state had instituted; it can also “retain jurisdiction” over that state’s voting laws “for such period as it may deem appropriate”.
In short, what the Jim Crow states were doing fifty years ago can no longer justify preclearance. But if a court finds a state is doing something bad right now, and if it believes that new bad things are likely to keep happening in that state, it can re-institute preclearance for that state.
On July 25, Attorney General Holder announced he would take this path, and his test case is Texas, where there is an ongoing lawsuit about redistricting and alleged attempts to gerrymander Hispanics out of their fair representation in the legislature. Holder also plans to challenge the Texas photo-ID law, which the Justice Department had blocked under the now-inapplicable Section 5. (Texas’ photo-ID law is particularly insidious. Yes, you can get a free state ID card if you don’t already have a drivers’ license; but in the heavily-Hispanic parts of the state, you might have to get somebody to drive you 100 miles to the nearest office that can issue such an ID. The Justice Department charges that 1.5 million eligible Texas voters lack photo IDs, while Texas counters that “only” 795,000 do. And a gun permit is considered adequate ID for voting, but a University of Texas student ID isn’t.)
Eventually, one such case is going to get back to the Supreme Court, and then we’ll find out something about our five conservative justices: Do they just dislike Section 4 of the Voting Rights Act? Or do they dislike the voting rights Section 4 protected?