Three Ways The Supreme Court Gutted Voting Rights Today

— By Ian Millhiser on Jun 25, 2013 at 10:19 am

Earlier today, the Supreme Court declared Section 4 of the Voting Rights Act of 1965 unconstitutional. Section 4 is the formula which determines which jurisdictions are subject to “preclearance” under the law, meaning that new voting laws in those jurisdictions must be reviewed by the Justice Department or a federal court before they can take effect. Although today’s opinion ostensibly would permit Congress to revive the preclearance regime by enacting a new formula that complies with today’s decision, that would require a functioning Congress — so the likely impact of today’s decision is that many areas that were unable to enact voter suppression laws under the Voting Rights Act will now be able to put those laws into effect.

— by Josh Israel and Aviva Shen on Jun 25, 2013 at 12:00 pm

The Supreme Court’s 5-4 ruling striking down key provisions of the Voting Rights Act, for the moment at least, eliminated the requirement that jurisdictions with a history of discrimination pre-clear election and voting law changes to ensure they do not disenfranchise minority voters. While the remaining provisions will still ban outright racial discrimination, those states and localities previously covered will now be able to implement changes first and victims will have to prove discrimination after the fact.

In the past year, the U.S. Department of Justice denied pre-clearance to four laws it deemed discriminatory — and federal courts upheld three of those four determinations.

Several such laws will now undermine the right to vote because the pre-clearance tool has been removed. Among them:

Strict voter ID laws. Earlier this year, Virginia’s Republican-controlled legislature enacted strict photo identification requirements for all voters. While a 2012 state law had survived Department of Justice review due to its flexible list of acceptable ID options, the tougher 2013 photo ID-only restrictions will likely have a discriminatory effect and would thus have been unlikely to receive approval. Now, the strict requirements will go into effect and any challenge will require a disenfranchised vote to sue and prove injury. Similar restrictions will also now take effect in other states.

Racially-gerrymandered legislative maps. While the Supreme Court has made it clear in the past that redistricting cannot take into account the race of residents, the initial Texas redistricting plans appeared to do just that. A three-judge panel of federal judges found that the map was an example of racial gerrymandering and blocked it from going into effect. George W. Bush-appointee D.C. Circuit Judge Thomas Griffith noted that “substantial surgery” was done to predominantly black districts to cut them off from their representatives’ offices and their strongest fundraising bases, while the districts of white Congress members were either left untouched or were “redrawn to include particular country clubs and, in one case, the school belonging to the incumbent’s grandchildren.” But now these discriminatory maps will govern Texas House, Senate, and Congressional districts until someone can prove injury.

Blocking grassroots get-out-the-votes efforts. In anticipation of this very ruling, Arizona Republicans prepared a proposal to undermine voter turnout efforts common in Latino communities. The bill — which has already cleared the Arizona Senate — would make it a felony for anyone working or volunteering on behalf of a political committee or other organization to deliver mailed ballots to a polling place. Such grassroots campaigns identify voters who received mail in ballots but had not yet returned them, encourage the voter to fill out the ballot, and offer to return it to the polling place in order to make it as easy as possible for the voter to vote. Without the Voting Rights Act pre-clearance process, state laws like this will now go into effect and voters will need to prove racial discrimination to challenge it in court.

The 15th amendment to the U.S. Constitution guaranteed that the right to vote shall not be abridged on the basis of “race, color, or previous condition servitude.” It also expressly granted to Congress the power to “enforce this article by appropriate legislation.” Though bipartisan majorities in the Congress and President George W. Bush agreed that this legislation was still needed — and 81 percent of the voter discrimination complaints brought after the laws went into effect were in areas covered by the now eliminated pre-clearance jurisdictions — Justices Alito, Kennedy, Roberts, Scalia, and Thomas have seriously defanged that power and opened the door to significantly more voter suppression.

We’ve already seen how the 5 corporatists on the court (Justices Alito, Kennedy, Roberts, Scalia, and Thomas) have essentially gutted any and all possibilities for class action suits they possibly could. What’s next? Making each and every voter individually file suit to assure their right to vote? The gutting of Section 4 will make it much more difficult in discrimination-prone states to protect our democracy through enforcement of Section 5. Here’s an article from earlier this year on ThinkProgress detailing 5 reasons why Section 5 is so important.

— by Sandhya Bathija | February 19, 2013

Here are five reasons why Section 5, by protecting the right to vote, actually enhances our democracy and is good for all Americans.

1. Section 5 blocks discriminatory voting practices

Section 5 has blocked discriminatory state laws that would have disenfranchised or diluted the minority vote. Without Section 5:

  • Texas would have passed the strictest voter ID law in the nation in 2011, placing unforgiving burdens on minority voters. The law would have allowed concealed handgun licenses to serve as a form of valid identification to vote, but would have rejected the use of a college ID or a state employee ID. Luckily, Section 5 blocked the law and saved African American and Latino voters from being disenfranchised in the 2012 election.
  • Mississippi would have required people to register to vote twice: once for federal elections and once for state and local elections. Knowing that it is more difficult for minorities to overcome administrative barriers, this tactic would have resulted in diluting the minority vote in state and local elections. The Department of Justice, using Section 5, blocked the law in 1997.
  • Georgia would have continued to use a voter verification program to check the citizenship status of every person seeking to register to vote. Because Georgia failed to receive Section 5 preclearance before implementing the law, evidence was obtained that made it clear that minority voters were being flagged at higher rates, requiring time-consuming additional steps to be taken to prove their citizenship. The Department of Justice denied preclearance for this law in 2009.
  • Arizona would have implemented a redistricting plan that would have divided certain election districts so Latinos would no longer be the majority in those districts and would no longer be able to elect candidates of their choice to represent them. The Department of Justice denied preclearance for this law in 2002.

2. Section 5 safeguards local elections

The elimination of Section 5 may have the most devastating consequences in small cities and communities where individuals are less likely to litigate discriminatory changes. Section 5 requires covered jurisdictions to submit requests for even minor changes at the local level and protects against discriminatory practices that would otherwise go unnoticed.

  • In 2011 the Pitt County School District in North Carolina decided to reduce the number of school board members from 12 to 7 and shorten their terms in office. Section 5 blocked the change from going into effect after the Department of Justice determined that such a change would decrease representation of minority-preferred candidates on the school board.
  • In Clinton, Mississippi, where 34 percent of the population is African American, the city proposed to its six-member council a redistricting plan that did not include a single ward where African American voters had the power to elect candidates of their choice. Racially polarized voting is still a problem in Mississippi, and the redistricting plan ensured there was no longer a majority African American ward. The Department of Justice found reliable evidence that the city had acted with a racially discriminatory purpose and blocked the change from going into effect in 2011.

3. Section 5 prevents discrimination where race is still a barrier

Under the Voting Rights Act, jurisdictions that must seek preclearance have a history of racial discrimination in voting practices, and there is still evidence that racial discrimination is prevalent in Section 5-covered jurisdictions. Most of the states fully covered under Section 5 have the highest African American populations in the country, which should mean that African Americans are strongly represented in the government. But that is unfortunately not the case.

African Americans are still significantly underrepresented in state legislatures, in Congress, and in statewide offices such as governor and U.S. Senate positions. Where African Americans do serve in public office, they are elected in districts that are majority minority voters. Racially polarized voting such as this indicates that race is still a factor in how people vote. (see Figure 2 on following page)

  • Mississippi, which is nearly 40 percent African American—the highest population of African Americans in any state in the country—has never elected an African American governor. There is one African American currently in Congress who represents Jackson, Mississippi, which is more than 60 percent African American.
  • Louisiana, Mississippi, Virginia, Georgia, and South Carolina lead the country in being the most underrepresented when it comes to African Americans in the state legislature.

In addition, federal observers are frequently sent to Section 5-covered states on Election Day. The U.S. attorney general is permitted to send federal observers to certain Section 5-covered jurisdictions if there is reason to believe that voting rights will not be protected. Between 1966 and 2004, the attorney general sent a total of 1,142 federal observers to different states to monitor voting practices during elections. Most of these observers are sent into counties that are more than 40 percent nonwhite. Louisiana, Mississippi, Alabama, Georgia, and South Carolina accounted for 66 percent of all federal observer coverages between 1982 and 2004. When federal observers are sent to a jurisdiction, it is referred to as an “observer coverage.” (see Figure 3) In the 2012 presidential election, the Department of Justice sent observers into counties in all of the fully covered Section 5 states except Virginia.

4. Section 5 is a necessary alternative to costly, time-intensive litigation

Congress passed the Voting Rights Act because case-by-case litigation was not working to protect the right to vote in states where racial and ethnic discrimination mostly occurred. It was slow, difficult, and costly to challenge every type of voter suppression tactic used in counties and states around the country. And even when litigation was successful in stopping the unconstitutional practices, state officials would ignore the court orders or find some new discriminatory scheme to ensure minorities could not exercise their right to vote.

This would not be any different today. Consider the number of states that passed voter suppression laws since 2010 in Section 5-covered jurisdictions. Without Section 5, minority voters would have had to build a case, front the costs, and challenge the following laws:

  • Proof-of-citizenship laws: Alabama, Arizona, and Georgia
  • Voter ID laws: Alabama, Mississippi, South Carolina, and Texas—in fact, because of Section 5, South Carolina watered down its original version of the law before seeking approval from the U.S. District Court for the District of Columbia
  • Limits to early voting: Georgia
  • Instead, Section 5 required the Justice Department or the D.C. Circuit Court to approve the laws before they disenfranchised minority voters.

5. Section 5 has moved our country forward

Thanks to the Voting Rights Act and Section 5, the United States has made immense progress in protecting and expanding the right to vote. In Section 5-covered jurisdictions, change is happening, although slowly, but it may not have happened at all if it were not for the Voting Rights Act and Section 5. The changes we see include:

  • The election of the first African American president
  • A higher percentage of African American elected officials—the number of which has increased from just 300 nationwide in 1964 to more than 9,100 today
  • The highest-ever percentage of African Americans in Mississippi’s state legislature—27 percent—since the first African American to Mississippi’s state legislature was elected in 1967, following the passage of the Voting Rights Act
  • A more diverse electorate

Racial discrimination continues to be a problem in our country, particularly in Section 5-covered states. Section 5 serves as a shield to protect minority voters in jurisdictions where progress has come slowly and continues to be a necessary remedy to disenfranchisement. Without it, minority voters would be in jeopardy—and so too would our democracy.

Sandhya Bathija is a Campaign Manager with Legal Progress at the Center for American Progress. Jacqueline Odum, an intern with Legal Progress, also contributed to this report.

This material [the article above] was created by the Center for American Progress Action Fund. It was created for the Progress Report, the daily e-mail publication of the Center for American Progress Action Fund. Click here to subscribe.