Suppression Laws Flourish After Death of Voting Rights Act
Six of the nine states that previously had to apply for federal permission to make changes to their voting laws because of their history of discrimination are pushing forward with discriminatory voter suppression laws.
The states were given the go-ahead to proceed by the U.S. Supreme Court’s ruling June 25 in Shelby County v. Holder that struck down a portion of the Voting Rights Act, finding it outdated.
Texas, South Carolina, Alabama, Virginia, Arkansas and Mississippi are all moving to implement rules designed to suppress the minority vote, rules which would not have been allowed or had already been blocked under the previous VRA regime.
North Carolina, which was not entirely covered by the VRA but does contain many counties that were, is also advancing several laws with intent to disenfranchise.
Most of the suppression laws come disguised as voter ID requirements, ostensibly to protect against in-person voter fraud. In-person voter fraud, outside of extremely rare and isolated cases, does not exist. Instead, the laws are designed the keep the estimated 25 percent of African-Americans and 16 percent of Latino citizens of voting age who do not possess valid IDs from casting a ballot.
In recent years the VRA has been used to stop implementation of discriminatory laws in Florida, Texas and South Carolina, among other states, but no more. The only way to stop suppression laws now is after they’ve already passed, with costly litigation that can take years to resolve.
Separation of Powers
The power to determine how and when states’ voting laws should be scrutinized would by most readings lie with Congress, as codified in the 15th Amendment to the United States Constitution, which mandates that the right to vote not be denied because of “race, color, or previous condition of servitude,” and “Congress shall have power to enforce this article by appropriate legislation.”
However, in a blatant violation of the separation of powers, the Supreme Court effectively vetoed a law passed by Congress without providing any legitimate constitutional justification for doing so. In order to support the decision, the court fabricated a new constitutional principle of “equal sovereignty of the states” and claimed that the federal government couldn’t impose restrictions on some but not others.
It also deemed fit to throw out the preclearance requirements because they were based on bad, out-dated data from the 1960s. Even if that were true, it’s unclear where the Supreme Court gets the authority to overturn laws that are based on bad data or bad assumptions, if they don’t otherwise violate the Constitution.
Evidence of Discrimination
The argument that the requirements are outdated is also on shaky ground to begin with. The original formula for the areas designated for VRA scrutiny includes states and localities that had histories of discrimination back in the 1960s, but it was not static. On the contrary, the VRA contained provisions that voting areas could remove themselves from preclearance requirements with 10 years of good behavior.
They didn’t exhibit good behavior. As Justice Ruth Bader Ginsburg pointed out in her dissent, the covered jurisdictions accounted for 25 percent of the nation’s population but 56 percent of successful litigation of violations since 1982.
When Congress reauthorized the law by overwhelming majorities in 2006, they held 21 hearings, listened to scores of witnesses and compiled 15,000 pages of legislative record that found “countless ‘examples of flagrant racial discrimination’ since the last reauthorization; Congress also brought to light systematic evidence that ‘intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.’”
Between 1982 and 2006, the Justice Department used their authorization to block 700 discriminatory laws, while another 800 were altered or withdrawn. Ginsburg said it well: “Throwing out preclearance when it has worked . . . is like throwing away your umbrella in a rainstorm because you are not getting wet.”
A Big Experiment
“What this means is any changes in voting that are likely to have a discriminatory effect will no longer be stopped before they take effect,” says Julie A. Nice, a professor at the University of San Francisco School of Law. “By changing a proactive system to an adjudication system after the fact really means there’s not going to be the same kind of enforcement of nondiscrimination.”
Now the nation can only wait and see how Congress responds, if at all, to set up new preclearance criteria, and how the lawsuits will play out as states across the land move to suppress and dilute the vote.
“It’s a green light for voting districts to change their election procedures, and we know that’s always partisan and we also know that elections are highly racialized,” Nice says. “We’ll see what happens to our democracy as a result. It’s really a big experiment now.”