AP Photo/Chuck Burton
This article will appear in the Fall 2016 issue of The American Prospect magazine. Subscribe here.
The electoral dirty work done by dozens of state legislatures in the wake of the Supreme Court's 2013 decision Shelby County v. Holder is the focus of determined legal challenges by voting-rights advocates, and decisions are coming down at a dizzying pace. Not every court involved has come down in favor of voters, but there's encouraging evidence that judges, including conservatives, recognize state laws purportedly passed to ensure "voting integrity" for what they really are: suppressive tactics.
States' efforts to suppress the vote
Following the Supreme Court's decision in Shelby County, state legislators representing nearly half the country rolled back effective reforms and erected new barriers to voting. It was a throwback to the era before the 1960s, when Jim Crow laws finally triggered passage of the Voting Rights Act (VRA).
Section 5 of the VRA, in effect for nearly 50 years, prevented much of the country-mostly Southern states and localities with a history of voting discrimination-from passing laws or rules geared to preventing citizens of color from casting ballots. It wasn't perfect, but it kept thousands of discriminatory practices from seeing the light of day. When the Supreme Court gutted Section 5 in Shelby County, states previously required to submit proposed voting changes to the federal government for preclearance-along with some never covered by the preclearance requirement-rushed to pass laws meant to disenfranchise African Americans, Latinos, and others, including students, seniors, and the disabled.
North Carolina was the worst offender. The day Shelby County came down, Republican legislators introduced omnibus legislation that would've been stopped by Section 5. It eliminated same-day registration, preregistration of 16- and 17-year-olds, out-of-precinct voting, and reduced early voting. When the Tar Heel State adopted those voter-friendly measures in 2000, it had ranked 37th in turnout nationally; over a 12-year span, it improved to 11th. The reforms were particularly effective in the black community: 41.9 percent of African American voters turned out in 2000, 71.5 percent in 2008, and 68.5 percent in 2012. The cause and effect were clear. The 2013 bill also included a new hurdle-a requirement that each voter produce at the polls one of a select few types of photo ID. A federal appeals court later concluded that the favored IDs were chosen based on evidence that whites were likelier than blacks to possess them. Public-assistance ID cards-whose holders in North Carolina are typically poor and often black-were not on the acceptable list.
The North Carolina law may have been the most flagrant suppression effort, but it wasn't alone. Twenty-two states since 2010 passed legislation that either cut reforms that were improving participation or imposed a new photo-ID requirement to reduce it. Without the VRA's preclearance provision, state legislators, whether in jurisdictions once covered by Section 5 or not, believed they'd gotten a free pass to impose such measures.
Thankfully, Section 2 of the Voting Rights Act remains alive and well; it prohibits any state from implementing voting practices in a "manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." With this in their arsenal, alongside the Constitution's protections, voting-rights litigators and the Department of Justice began filing complaints almost as quickly as state laws were passed.
Courts rule photo-ID laws unconstitutional
Cases brought under Section 2 can be costly and time-consuming for voting-rights advocates to pursue; just as bad, they can be filed only after suppressive state laws have been put on the books-another reason Section 5's preclearance requirement was so valuable. But the past few months have been fruitful for litigators, as several courts have struck down or modified voting laws-mostly on photo ID-because they discriminatorily prevent some citizens from casting ballots. Starting this trend, on July 19, a federal judge in the Eastern District of Wisconsin (as part of a long-running case) ordered the state to permit citizens who couldn't obtain IDs "with reasonable effort" to vote in this election upon submission of an affidavit attesting to that difficulty. A "safety net" was needed, the court said, and the affidavit option to Wisconsin's strict ID law was a "sensible approach [to] prevent the disenfranchisement of some voters … and preserve Wisconsin's interests in protecting the integrity of its elections." The court didn't address the specific impact the law would have on voters of color, but acknowledged that poor, disabled, and homeless voters, due to disadvantaged conditions, wouldn't be able to get the required cards without "extraordinary effort"-uncalled for given "there is virtually no voter-impersonation fraud" in the state.
The next day, July 20, the Court of Appeals for the Fifth Circuit-perhaps the nation's most conservative appellate court-found that Texas's photo-ID law, the strictest in the country, had a discriminatory impact on voters of color. The legislature's intent in passing SB 14, a law permitting voters to present a concealed-carry handgun permit but forbidding the use of student IDs, was not yet obvious, the appeals judges said; as such, they instructed the district court to evaluate, following this election, whether the legislature intended to discriminate. But if the intent was cloudy, the law's impact was clear; in place since the 2014 midterm election, it discriminated against black and Latino voters. Accordingly, the appellate court ordered the district judge to modify it for the November election.
About a week after the Fifth Circuit's decision, on July 29, the Court of Appeals for the Fourth Circuit addressed North Carolina's suppression bill. A trial court in April (Common Cause was a plaintiff) had upheld the entire law-despite nearly 500 pages of findings on how it would negatively impact African Americans-but the Fourth Circuit concluded that the lower court had "fundamentally erred." It found not only that the new law "target[ed] African Americans with almost surgical precision" but also provided "cures for problems that did not exist." This was particularly the case, given that the state had "failed to identify even a single individual who has ever been charged with committing in-person voter fraud in North Carolina," the judges wrote.
The appellate court also had proof that North Carolina legislators aimed to limit the black vote: Before introducing the bill, lawmakers sought and received information on racial breakdowns specifying what groups used which reform and who had or lacked specific IDs. Black voters, Republican legislators learned, disproportionately used the first week of the early-voting period, same-day registration, and pre-registration; legislators cut all three reforms in the omnibus legislation. The GOP legislators also learned that African Americans disproportionately voted outside their home precincts, so they cut out-of-precinct voting. They also adopted a photo-ID law that required identification cards often used by whites but less available to blacks-who had overwhelmingly voted for Democratic candidates in the previous two elections. The evidence of discrimination "comes as close to a smoking gun as we are likely to see in modern times," the Fourth Circuit declared. "The State's very justification for a challenged statute hinges explicitly on race-specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise."
In a less-publicized but highly impactful case, the federal district court in North Dakota, on August 1, upended a 2015 photo-ID law for the upcoming election. HB 1333, the court found, particularly burdened the state's Native Americans, nearly 24 percent of whom lack the required ID. That burden, moreover, wasn't justified: The secretary of state acknowledged in 2006 that he knew of no voter fraud in North Dakota, and the record submitted to the court confirmed that none existed. To cut a fair balance, the court granted a request by the seven Native American individual plaintiffs and ordered the secretary of state to add on "fail-safe" measures, including allowing voters to submit affidavits as to their identity (a common solution) and letting poll workers vouch for voters they know.
Judges are balancing state efforts to fix a problem against how that proposed solution affects the right to vote, particularly for marginalized and legally protected groups. Judges also are looking at whether the problem even exists, thereby warranting a solution. Sometimes they find the law, so long as it's not intentionally discriminatory, can stand if the state accommodates those who can't get the required IDs. As the courts have consistently noted, in-person voter fraud, the kind a photo ID would cure, simply does not occur at the level justifying a tough ID requirement. Every state, moreover, has laws in place to prohibit fraudulent voting, with penalties including steep fines and imprisonment. So why add a law on top of a law that already works? That's not typically the "conservative" way.
It's not just about photo-ID laws
In addition to striking photo-ID laws as conceived, courts have ruled for voters on other issues. The Sixth Circuit Court of Appeals, for example, recently upheld a lower court's decision to strike down a Michigan law that would eliminate straight-ticket voting, a century-old practice in the state. Because black voters disproportionately use the practice, its elimination would discriminatorily impact the African American community, lengthening already too-long wait times to vote (sometimes twice as long compared with lines in white communities) in under-resourced polling precincts. As with photo-ID laws, the state legislature's move here would result in disenfranchisement of tens of thousands of people. On September 9, the Supreme Court, by a 6–2 vote, denied the state's request for yet another stay, leaving straight-ticket voting in place for this upcoming election.
Changes to voter registration regulations also keep people from the ballot box, especially when states improperly request citizenship documentation through the forms. Federal decisions, addressing moves by Kansas Secretary of State Kris Kobach, have ensured that, at least for this year's election, citizens may register and vote in both state and federal elections without having to present citizenship documentation that is often hard to obtain, and which federal law does not require. Most recently, the Court of Appeals for the D.C. Circuit, reversing the lower court's decision, held that Kansas, Georgia, and Alabama may not request documentary proof of citizenship for this election through the federal voter registration form, despite the Election Assistance Commission's executive director earlier giving the go-ahead.
A never-ending struggle
In voting-rights litigation, the forces that want to restrict voting keep fighting back. For instance, the decision in Wisconsin allowing any citizen who can't obtain ID with "reasonable effort" to vote after submitting an affidavit won't be in place for this election. The Court of Appeals for the Seventh Circuit stayed it, accepting instead another district court's modifications to the DMV's "ID Petition Process" (IDPP), the state's last-ditch attempt to save the law by providing individuals with quick identification. Noting that the current "IDPP is pretty much a disaster," that it disenfranchised more than 100 people for the April primary, that the DMV had discretion not to issue ID, and that the law disparately impacted voters of color, the district court had ordered modifications for the upcoming election.
But the appellate court relied on the state's assurance that it would "automatically" mail a free photo ID to eligible persons initiating the IDPP process at a DMV office without requiring them to provide "a birth certificate, proof of citizenship, and the like." The process encapsulates the absurdity of the state's work-around, demonstrating that Wisconsin's aim is not to protect against fraud by verifying an individual's identity but to impose a test the voter must pass to cast a ballot. If one doesn't have to submit information confirming citizenship, what aside from erecting a hurdle is the point? Additionally, even if the ID itself is free of charge, the means to obtain one is not: Individuals with very limited incomes likely don't have the means to reach the DMV in the first place. On the plus side, the district court's other holdings-reversing the state's restrictions on in-person absentee (early) voting, a 28-day durational residency requirement, and bars on the use of expired IDs, among other things-remain in effect for November.
In North Carolina, on the other hand, the appellate court's ruling knocking down the state's ID law and restoring reforms will stand. The Supreme Court, on August 31, refused by a 4–4 vote to grant the state's request for a stay, and thus permit implementation of that "monster" legislation in this upcoming election. The deadlock reflected the ideological split on the high court following the death in February of Justice Antonin Scalia. Tar Heel voters, as a result, can expect to register and vote on the same day, vote during a period before Election Day, and have the votes counted even if they mistakenly report to the wrong polling place within their county. Voters also will not need to bring photo ID to the polls (unless they are voting for the first time, in which case they should bring some form of ID-utility bill, bank statement, etc.-showing their name and address, as required by the Help America Vote Act).
As for Texas voters, in a settlement reached by the state and challengers to its law, parties agreed that for those with a "reasonable impediment" to obtaining an SB 14–required ID (which will be accepted if not more than four years expired), documents including a utility bill, paycheck, or other government document with the voter's name and address, alongside completion of a "reasonable impediment" declaration, will allow the voter to cast a regular ballot. The deal also prohibits election officials from questioning the reasonableness of the voter's impediment, and requires the state to develop a "detailed education plan" for voters (costing no less than $2.5 million), and a detailed election official training program."
Voters in Ohio, unfortunately, won't be able to register and vote simultaneously during a specified "golden week" period in October, as they once did. The Court of Appeals for the Sixth Circuit cut that opportunity on August 23, and on September 13, the Supreme Court left that decision undisturbed, without noted dissent or explanation. Ohio offers a generous early-voting period, but as appellate Judge Jane Branstetter Stranch noted in her dissent, the cut will disparately impact black voters and is "linked to social and historical conditions of discrimination that diminish the ability of African Americans to participate in the political process."
Now what?
For the upcoming election, at least two things are needed for appropriate implementation of the courts' orders and fair access to the polling places.
First, advocates and voters must note and report any hiccups or violations leading up to and on Election Day. In Wisconsin, for example, the photo-ID requirement will be in effect. Voters without ID who take pains to secure them through IDPP at the DMV, but do not receive their IDs within the promised time period, should inform authorities and call 1-866-OUR-VOTE to report the problem. As the Seventh Circuit noted, the lower court must monitor the state's compliance, and if the DMV fails to issue cards "automatically" to eligible voters, remedies must be made. This sort of documentation-in Wisconsin and other states requiring compliance with court orders-is also needed to bolster future cases and ensure a fair outcome to voters.
Secondly, the state-and its elections officials and poll workers-must ensure the letter of the law is observed. It appears Texas has already violated its settlement with the plaintiffs. On September 6, the Department of Justice asked the trial court to enforce the deal, arguing that the state's education and poll-worker training materials "depart[ed] from it." According to the DOJ, the state has used language that "limit[s] the opportunity to cast a regular ballot solely to those voters who present SB 14 ID or who 'have not obtained' and 'cannot obtain'" the ID. Texas's departure from the "reasonable impediment" standard isn't a mere quibbling with words. An individual, for example, might have a "reasonable impediment" to obtaining ID from a DMV office located 60 miles away if she has no car and can't afford bus fare; that doesn't mean she "cannot obtain" it. Texas's language, as it stands, would prevent her from voting in this election. Complicating matters further, according to a follow-up brief filed by plaintiffs in the same case, some Texas officials promise to conduct "criminal investigations" of everyone completing a "reasonable impediment" affidavit. This too flies in the face of the underlying agreement.
North Carolina, too, will stay under scrutiny. Twenty-three of its counties, in response to recommendations from the state Republican Party urging "party line changes to early voting," moved to reduce early-voting hours; nine county boards voted to eliminate Sunday voting altogether. The Fourth Circuit, in blunt language, had ordered the state to resume 17 days of early voting, but the state's reduction in some voting hours could still fulfill state legal requirements. Cuts in Sunday voting could land an offending county in court, however, as well-publicized "souls to the polls" programs run by black churches make good use of those days, and such cuts would have a disparate impact on African American voters. The State Board of Elections, which has final say-so over the counties' decisions, announced on September 8 that Sunday voting would resume at polling places that offered it in 2012; other proposed cuts to hours were overruled as well. North Carolina voters should stay tuned; advocates say they're considering further litigation.
Apart from the recent court orders, a smooth election requires that states fulfill a number of administrative tasks-already on their books-so that every eligible voter can cast a ballot and have it counted. Elections officials must make polling places accessible to the disabled, provide interpretations and translations for voters with limited English proficiency (where legally required), and must carry a sufficient number of ballots-among other things. Disenfranchisement isn't always deliberate; sometimes it results from sloppiness or neglect. And it can be prevented. The Presidential Commission on Election Administration issued 19 common-sense recommendations in 2014 for states to keep the lines moving at polling places. States should review those recommendations again well in advance of this year's voting to see what adjustments still need to be made.
After the election dust settles: What more is needed?
The courts' takedowns of photo-ID and other vote-suppressive laws are a welcome response to state legislators' erection of barriers. But we can't assume these wins will deter other states from implementing roadblocks to the ballot box-or that any remaining barriers across the country will come down. When the opportunity to vote is lost, moreover, it's lost for good; there's no un-ringing that bell. That's why it's crucial we restore the protections lost in Shelby. Through updating Section 5 of the Voting Rights Act with a modern formula, one that's forward looking and doesn't dig too deep into the past, Congress can both abide by the Supreme Court's ruling and provide protections to voters in any state. Such legislation has passed with bipartisan majorities in the past (four times in fact), and our next president must urge federal legislators to get the job done. For our democracy to be a truly vibrant and representative one, every voice must be heard, and every voice must count. With a renewed Voting Rights Act, we can achieve that ideal and realize a government truly representative of its people.
