The Year in Preview: Post-Preclearance Voter Protection

Lots of things happened in 2013. President Obama was sworn in for a second term. We got a new pope and a new royal baby. Two bombs went off at the Boston Marathon and scared a nation. The Supreme Court stripped power from the Defense of Marriage Act and the Voting Rights Act. But these are all stories we've heard before, and if you haven't, you certainly will in the millions of "Year in Review" pieces set to be posted between now and New Year's. Over the next two weeks, our writers will instead preview the year ahead on their beats, letting you know far in advance what the next big story about the Supreme Court—or the environmental movement, immigration reform, reproductive rights, you get the picture—will be. You're welcome in advance for not making you read a dozen more retrospectives on Ted Cruz and Twerking and fiscal cliffs and shutdowns and selfies. Below, we tackle voting rights.

AP Photo/Tony Dejak

Anyone concerned about voting rights will remember 2013 as the year the Supreme Court neutered one of the strongest protections against voter suppression, the “preclearance” requirement of the Voting Rights Act. Sections 4 and 5 of the Voting Rights Act (VRA) had required that nine states

1 1. Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia all needed to abide by Section 5 preclearance requirements. Three counties in California, Five counties in Florida, three counties in New York, 40 counties in North Carolina, two counties in South Carolina, and two towns in Michigan also needed to have new election laws approved by the Department of Justice until last June. (as well as dozens of counties) with long histories of voter discrimination get any changes in election law approved by the Department of Justice or the D.C. District Court. This preclearance requirement was an invaluable civil-rights protection. It stopped many discriminatory elections laws, including gerrymandered maps and photo-ID requirements, like those in Texas and South Carolina.

In June, however, the court ruled the  while requiring preclearance was okay, the manner in which states and counties were selected was unconstitutional. While preclearance is theoretically still possible, Congress will have to come up with a new list of states for it to go back into effect. That isn’t likely to happen any time soon. In the meantime, states have been passing restrictive laws at a steady clip. Within hours of the Supreme Court decision, Texas announced its voter-ID law would go into effect immediately. Within a month, North Carolina passed one of the most sweeping sets of restrictions in memory, limiting registration drives, cutting back early voting and (of course) requiring photo ID to vote

But voting-rights activists still have other ways to fight back. In 2014, we’ll  see a number of cases brought under an array of laws and provisions that can also be used to protect the right to vote. “This is a period of real ferment, with the potential maybe to fully realize our already-existing protections for the right to vote,” says Wendy Weiser, director of the democracy program at the Brennan Center for Justice, which has litigated a number of voting-rights cases. The outcomes of these cases will have an enormous impact on how the 2014 elections are governed and will help determine how the courts read the laws in the future. Here are some of the key voter protections still left in place.

The Constitution

While the Constitution doesn’t include an explicit guarantee of the right to vote, the 14th Amendment comes close to doing so when it declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In 2008, voting-rights activists went to the Supreme Court challenging Indiana’s voter-ID requirement. While the court ruled the law was constitutional, it also opined that states must justify any burden placed on voters. “The more serious the burden, the better the justification has to be,” says Justin Levitt, an expert in voting rights and civil rights at Loyal Law School in Los Angeles. Under a number of other voting laws, plaintiffs must show a “discriminatory effect”—that a law makes it harder for one group to vote relative to other groups. (It is actually the 15th Amendment, which explicitly guarantees that the right to vote cannot be denied to citizens “on account of race, color or previous condition of servitude.” But the Supreme Court has said that 15th Amendment violations must show proof that the state intended to discriminate, which is usually very difficult to show.)

Still, Levitt cautions, making claims under the 14th Amendment isn’t easy. To show that a law creates a serious burden on voters, lawyers must find those people who cannot vote because of the new regulation or requirement, which is difficult.  For instance, those who don’t have the requisite ID are often hard to track down, particularly because they don’t have ID. The argument is especially hard to make successfully before a law takes effect—how can someone have been denied the right to vote if the election hasn’t taken place yet? “It makes it really tricky to stop bad voting practices before they’re implemented,” says Levitt.

Since the 2008 SCOTUS decision, civil-rights groups haven’t pursued many cases using the U.S. Constitution as a defense, but many have used state constitutions, where the right to vote is often more explicit. Such cases, like Fourteenth Amendment cases, need not necessarily claim that a law discriminates—only that it interferes with citizens’ right to vote. In both Pennsylvania and Wisconsin, cases alleging that voter-ID laws violate the state constitution are ongoing, and have already prevented the laws from being in effect during the 2012 election.

The Rest of the Voting Rights Act

With Section 5 of the Voting Rights Act out of commission, civil-rights activists may have lost their most potent weapon, but a number of voter protections remain in place. The act is concerned almost entirely with discriminatory voting practices: to win a case, lawyers must show that a state law is unfair to one group in comparison to another. Some parts of the VRA are quite straightforward. For instance, there’s a provision to ensure that election materials are available in all the languages that citizens need, as well as provisions to ensure disabled voters have the tools they need to cast a ballot.

The Act is also very contextual—violations depend heavily on the specifics circumstances at play in a state. “The history matters,” explains Levitt. “Engagement of minority groups matters.” That means a voter-ID law that’s legal in mostly-white Indiana may not be legal in Texas, given the latter’s diverse voting population and long history of discrimination. Moreover, the VRA includes provisions to ensure not only that voters can cast their ballots, but that they do not feel intimidated or bullied while they do so.

Most significant of all for voter-protection efforts is Section 2, which prohibits any rules that have a discriminatory effect on voters. Until the recent Supreme Court decision, voting-rights advocates mostly relied on Section 2 for gerrymandering cases. But now Section 2 serves as the best remaining vehicle for making other sorts of discrimination cases. A number of pending cases, including two in Texas and one in North Carolina, rely on such claims. One Texas case challenges the state’s new voter-ID law, while the other challenges a set of redistricting maps. The North Carolina case challenges that state’s recently-passed omnibus bill, which includes all sorts of voter restrictions, from eliminating early voting days to making voter registration harder, as well as voter ID.

Weiser says whichever of these Section 2 cases reaches the Supreme Court first will likely have a big impact on how useful the provision will be going forward—the specifics of each case may determine whether the Court issues a narrow ruling  or a broader one. . Whatever happens, Section 2 cases are likely to remain labor-intensive by Section 5 standards. Under the old preclearance regime, states had to prove that they were not discriminating—now the burden is on activists to prove that states are. For instance, when the DOJ tossed out Texas’ voter ID law, it was because the state had failed to show that the requirement would not leave nonwhite voters with a greater burden. Now lawyers litigating the case must prove that the law will make it disproportionately harder for nonwhite voters to cast a ballot—which requires a lot more work.    

Voter-Registration Laws

Voter registration is both fundamental to voting and—increasingly—one of the most popular targets for voting restrictions. North Carolina’s omnibus bill limits voter registration drives. Also, in 2012 a number of states attempted voting-roll purges that disproportionately targeted nonwhite voters and newly naturalized citizens. Several of those attempted purges occurred shortly before an election, with little time for purged voters to reassert their rights.

To combat such efforts, civil-rights lawyers often turn to the National Voter Registration Act, or more colloquially, the Motor-Voter law. The law is most famous for requiring departments of motor vehicles to offer citizens a chance to register while they’re in the office. But the law also protects voters from purges by requiring that jurisdictions do voter roll maintenance throughout the year, but not within 90 days of an election. Florida stopped its 2012 purge when a lawsuit was brought under the Motor-Voter act.

The fights around voter registration also highlight another key strategy for activists—pressuring politicians. Online voter registration is growing despite the new efforts at voter restriction; 13 states now allow voters to register or update their information online, and another six are in the process of making it available. Republicans and Democrats alike have pushed for better integrating data to keep the rolls accurate and make it easier for people who move to have their registration move with them. In addition to fighting in the courtroom, voting advocates will thus likely start investing more in political work

Political organizing is important because, as Levitt puts it, “laws [can be] bad policy even if they’re not illegal at all.” For instance, early voting is not required, and therefore cutting back early voting days is, in many cases perfectly legal. But it makes voting harder and more time-consuming. In Florida, after the legislature cut the early voting period, some lines were hours long and the public outcry was so great that lawmakers quickly moved to restore most of the days. Similarly, the Ohio Legislature backed down from its proposed early voting cuts after activists promised to put the restrictions on the ballot and bring more attention to the issue.

“Making life difficult for voters may not always be illegal but if voters care enough, their representatives will listen to them,” says Levitt.

But that’s assuming that those voters can, in fact, vote. It’s a theory we’ll soon see put to the test.

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