The Voter Suppression Chronicles

Chuck Burton/AP Images

Early voting for the 2018 midterm election in Charlotte, North Carolina—a practice Republicans have sought to curtail because it increases minority turnout. 

This article appears in the Summer 2019 issue of The American Prospect magazine. Subscribe here

Kristin Scott had a mess on her hands. In June of last year, less than three months before the start of early voting for the midterms, the news had come down to the elections director of rural Halifax County, North Carolina: The state’s Republican lawmakers, those mad scientists of American voter suppression, had voted to create uniform hours for early voting across the state. Every polling place would have to be open Monday through Friday, 7 a.m. to 7 p.m. The bill had seemingly popped up out of nowhere, tacked on to a budget bill the day before and waved through in just 40 hours with no public testimony, committee hearings, or input from local or state elections officials. “In the most undemocratic way possible, we’re undermining democracy,” fumed Democratic state Senator Jay Chaudhuri.

Scott’s reaction was more pragmatic: “Uh-oh. What do we do now?” Like other counties, Halifax had always been free to set its own hours for early voting, based on when folks were likeliest to show up. In recent years, it had three sites open from 8:30 to 5. That meant one shift per poll worker, which helped to keep costs down. And that mattered in Halifax, a vast stretch of northeastern North Carolina pine hills with a 53 percent African American population—and not a place that could easily handle what ProPublica accurately deemed an “unfunded mandate,” since the legislature had authorized no funds to help counties expand their hours. “We’re ranked as one of the poorest counties in the state,” Scott says, “and our commissioners had just allotted us a little over $160,000 to purchase new voting machines.” (The old models had been melting down on Election Days.) “And then you’re talking about going back to request more money they hadn’t budgeted for?” She laughs. “Right.”

Scott and her two-member staff, their plans for the fall suddenly scuttled, scrambled to figure out a solution. The new edict meant that the costs of keeping open Halifax’s three early-voting sites would multiply; poll workers would have to be found for two shifts per day, and “we already had trouble recruiting enough of them,” Scott says. But if they eliminated one or two of the early polling places, it would create a real hardship for many voters: Halifax’s population is little more than 50,000, but it’s spread out across an area that’s larger than Houston, Texas. One in eight households have no cars, and there’s no public transportation. “Now, no matter where we located the one site,” Scott says, “some people were going to have to go upwards of 20 miles to get there.”

But the budget was what it was. Even though most of its eligible residents tended to vote early, Halifax would have only one place for them to go—a long way to go, for many. When Scott announced the decision, she braced for what she knew would come next. “People called from the time we opened till we closed, every day,” Scott recalls. “They felt slighted. They thought we were trying to keep people from voting, and they accused us of trying to ‘rig’ the election by taking away citizens’ right to vote. People found my personal number. It got ugly.”

She understood the frustration and fury. Halifax voters had been hit hard, repeatedly, by North Carolina’s flurry of voter-suppression laws following the Supreme Court’s Shelby v. Holder decision in 2013. In a 5-4 vote, the Court’s conservatives struck down the Voting Rights Act’s key provision, which had required states and locales like North Carolina—places with histories of racial discrimination in voting—to seek approval from the Department of Justice before making any changes to voting.

From the moment Barack Obama carried North Carolina in 2008 with a massive surge of black and young voters, Republicans had been champing at the bit to overturn the state’s progressive voting laws. They’d done careful research, as The Washington Post later reported, diving into statistics showing what kinds of “reform” would reduce turnout from black, Latino, and young voters the most. With Shelby, they had their chance. Less than two months after the decision, they passed what became known as the “monster” voting law, mandating voter IDs that hundreds of thousands of black North Carolinians lacked, eliminating same-day registration at the polls (used predominantly by black and student voters), and ordering counties to throw out provisional “out-of-precinct” ballots (used disproportionately by low-income folks who move often). The new law also eliminated “pre-registration” for 16- and 17-year-olds at their high schools, which had sent young voters’ turnout soaring, and outlawed “souls to the polls” Sunday voting prior to elections, which had become a tradition for black churches. And all this was on top of one of the nation’s most extreme gerrymanders of state and congressional districts, passed in 2011 by the first majority-GOP legislature in North Carolina since Reconstruction.

Ever since, Scott says, “it’s been nothing but chaos and confusion.” With lawsuits against the monster law and the gerrymander constantly percolating through the courts, officials couldn’t tell voters with confidence what to expect from one election to the next. “It seems that every time we have an election, the rules are different,” Jake Quinn, a member of the Buncombe County Board of Elections, told ProPublica. “We’re looking at different district boundaries, or we have to have voter IDs, or you can’t vote out of precinct, or the hours have to be changed. This is a problem. When you change the rules for voting every single election, some people are going to get discouraged by that. All of this is very destabilizing.”

Scott started holding voter-education sessions around Halifax, trying to explain the implications of the latest bills—they just kept coming—and court decisions. “All I can really say is, ‘As of right now, this is what it is, but it could change.’ Because it always does. The last thing you want is for citizens to leave thinking, ‘This is what it’s going to be for the next few years’; then they find out six months later that it’s changing again. And then they get mad at the elections people: ‘Y’all don’t know what you’re doing!’”

Alyssa Pointer/Atlanta Journal-Constitution via AP

Representative Marcia Fudge (center) presided over seven hearings in states with especially troubling voting practices, including this one in Atlanta, Georgia. 

But Republican lawmakers knew what they were doing. Mitt Romney and Donald Trump carried the state in 2012 and 2016, thanks largely to sagging turnout among voters of color, and the Republicans built huge majorities in the General Assembly despite Democrats holding an advantage in the number of registered voters. When a federal court finally struck down the monster law in 2016, saying that black voters had been targeted “with almost surgical precision,” lawmakers simply repackaged most of the provisions and passed them again, while adding fresh hurdles for voters—and groups that try to register them—along the way.

The early-voting change worked just as intended last fall: In a midterm election that saw turnout soar both statewide and nationally, Halifax was a rare exception. With its lone site, the county ranked dead last in the state in early voting. Worse yet, North Carolina voters approved a constitutional amendment requiring a photo ID to vote, replacing a struck-down provision of the monster law. Typically, nobody knew what exactly that would mean—the Republican legislature would get to decide what kinds of IDs to allow and disallow. With local elections coming up in 2019, and the state looming as a presidential battleground in 2020, Scott and her fellow election officials would soon have another mess to deal with.

But in February, Scott got a different kind of news: The U.S. Congress was coming to Halifax. More precisely, the House Subcommittee on Elections, which then-Speaker Paul Ryan had eliminated (no voting problems to investigate, folks!) and new Speaker Nancy Pelosi had revived, would be coming—for one in a series of field hearings across the country looking into voting discrimination since Shelby.

While the new Democratic House majority was eager to revive the struck-down “preclearance” provisions of the Voting Rights Act for frequent offenders like North Carolina, Justice John Roberts, in his Shelby decision, had issued a challenge to Congress: Prove that we still need it. “History did not end in 1965,” Roberts tartly observed. “Coverage today is based on decades-old data and eradicated practices” like Jim Crow–era literacy tests and poll taxes, he wrote. “The conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, voter turnout and registration rates in covered jurisdictions now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

Congress, Roberts continued, would have to build a “robust” case for an updated formula. Representative Marcia Fudge, the voting-rights firebrand from Ohio whom Pelosi tapped to lead the Subcommittee on Elections, took up that challenge. She scheduled seven hearings for this spring in states with especially troubling voting practices, from Florida to North Dakota. “What the courts said to us is that they could not continue to enforce Section 4 because they did not have a contemporaneous record,” Fudge said. “We are doing these hearings to create a contemporaneous record, so that we can go back to them and say, ‘Not only did we have these problems in 1968, but we had these problems in 2018.”

 

THE HEARINGS ENDED UP being extraordinary—something one could rarely say about congressional hearings of any kind. Witnesses painted a bleak, vivid, and sometimes heartrending picture of voting rights in the post-Shelby era. Some of the hearing sites were predictable enough—Broward County, Florida; Atlanta, Georgia; Fudge’s home district of Cleveland, Ohio. But the series would kick off in Brownsville, Texas, before visiting the Standing Rock reservation in North Dakota; Birmingham, Alabama; and Halifax County. “We’re going to small communities who people forget about who are punished year after year after year,” Fudge said. It didn’t hurt that subcommittee member G.K. Butterfield, who once worked on voting-rights cases before becoming a district judge and landing in Congress, represents Halifax County.

And so on a sweaty Thursday morning in mid-April, Congress came to town. A couple of hundred curious Halifax residents, sharp-dressed for the occasion, filed past presidential-visit-level security at Halifax Community College for the proceedings. Two high school classes huddled near the back of the big brown auditorium; a large contingent of Fudge’s Delta Sigma Theta sorority sisters, dressed in bright red, arrayed themselves near the front. Kristin Scott, who’d submitted written testimony, took a rare day off with her deputy election director so she could witness what might go down. “I have to see this,” she’d told me. “It’s so weird that they’re here. Good, mind you, but weird.”

After ordering the buzzing crowd to hush, Fudge said she “could not think of a better place to continue our hearings. When the Supreme Court struck down a core provision of the Voting Rights Act in 2013, Chief Justice Roberts wrote nonetheless that, and I quote, ‘Voting discrimination still exists. No one doubts that.’” Fudge glanced up from her notes and gave the audience a knowing look. “Legislators in North Carolina,” she said, “proved that point.”

The six witnesses in Halifax, as at most of the hearings, were a mix of voting-rights scholars, lawyers, activists, and elected officials. The star of this show was the Reverend William Barber, the former state NAACP chair who began leading Moral Monday protests after North Carolina’s monster law was enacted. “We have been battling for 2,023 days—five years, nine months, and 24 days—since the Voting Rights Act was gutted in 2013,” he thundered. Barber talked about how Obama’s victory had set off the white supremacist backlash that helped elect a Republican legislature, which then crafted artificial advantages through gerrymandering, dreamt up the “worst voter-suppression laws we have since Jim Crow,” and then sat back to wait for the Supreme Court to decide the Shelby case. “They waited, and they waited, and then as one legislator said, ‘Now that the headache has been removed, we can move forward.’

“The Southern strategy is still being worked through all of these efforts to suppress the vote at a time when we have more power and potential than we’ve ever had,” Barber said. The resistance in North Carolina had been fierce, both in the courts and in the streets. “Thousands marched, thousands were arrested,” said Barber, who went to jail six times himself. “It took us years, but in July 2016 a federal appeals court ruled that it was unconstitutional. However, they have not stopped.” No they didn’t! came a voice from the audience.

In every hearing, the details differed (somewhat), but the story was much the same: Republican lawmakers, in the South and in GOP-led states where Democrats are competitive, have been both relentless and deviously innovative in targeting the other party’s voters—and when one law is nipped in the bud by the courts, two others always seem to bloom. It’s precisely what Justice Ruth Bader Ginsburg predicted in her searing Shelby dissent. “Past is prologue,” she wrote, riffing on Shakespeare while puncturing Roberts’s fantasy of racial harmony circa 2013. Before the Voting Rights Act and preclearance for states that discriminated, Ginsburg wrote, “attempts to cope with this vile infection resembled battling the Hydra. Wherever one form of voting discrimination was identified and prohibited, others sprang up in its place.” Now, she said, the Supreme Court was giving states a green light to do their worst again. Ginsburg predicted a rash of “second-generation barriers” to voting that would supplant the old Jim Crow literacy tests, poll taxes, and (once a North Carolina specialty) requirements that black voters recite the preamble to the U.S. Constitution.

Andrew Krech/News & Record via AP

North Carolina passed a voter ID law in March 2016; months later it was blocked by a federal appeals court, which found that the law was intended to make it harder for blacks to vote in the presidential battleground state. 

She proved to be prophetic. The field hearings, which concluded in Birmingham in late May, provided ample evidence of the Hydra-headed nature of the new voter suppression—and how Republicans in Southern and battleground states have been learning from each other since the monster law set the tone for the post-Shelby era. “Notes are compared,” Tomas Lopez, head of the civil rights group Democracy North Carolina, said in Halifax. “You see something in one place, it gets used in another.”

The recent battle cry for “uniformity,” for instance, hadn’t originated with North Carolina lawmakers; it was the brainchild of Ohio Republicans. And that, in turn, means that the 900,000 voters in Ohio’s largest county, Cuyahoga, have just one polling place till Election Day—making Cleveland a supersized version of Halifax County. At the hearing there, longtime county board of elections member Inajo Chappell projected photos of the predictably long lines that ensued. She couldn’t tell the subcommittee how many voters in her majority-black county had simply given up and gone home. “There is no way to estimate the number. But I can say that uniform rules have continued to be implemented in a manner that limits voter access,” she testified. The Republicans’ justifications for the changes did not pass muster, she said. “The constant clamoring about rampant voter fraud is discouraging voter participation, and my experience over the years permits me to say that persistent claims about voter fraud are wholly without merit.”

Ohio Republicans also popularized voter purges, with former Secretary of State Jon Husted (who’s now lieutenant governor) showing other states how to perfect the art of tweezing minority voters from the rolls. As Tom Roberts of the Ohio NAACP testified, Husted used a provision in the 2002 Help America Vote Act—Congress’s timid response to the Florida debacle in 2000, which “we all thought was a helpful law,” said Roberts—to start removing voters from the rolls if they’d sat out two straight elections. The Supreme Court upheld the practice, which stripped 270,000 voters from the rolls in Ohio in 2018. There’s ample evidence that the practice disproportionately affects poor people and voters of color, who tend to move more and miss the notices that come in the mail from the state, directing them to update their information to remain active voters. “The decision allows states to treat the fundamental right to vote as a use-it-or-lose-it right,” Roberts said.

Fudge’s Elections Subcommittee heard about purges everywhere it went. North Carolina has struck 12 percent of its voters from the rolls, according to Brennan Center figures, with voters of color overrepresented in 90 of 100 counties. Georgia, under its notorious voter-suppressing Secretary of State Brian Kemp (now governor), had eliminated 750,000 voters even before the 2016 election. At the hearing in Atlanta, a visibly nervous Fulton County voter, Stacy Hawkins, testified about the “postcard trick” that Kemp’s office used last year to try to disqualify her and her three grown children—even though they’d all voted in 2016. “I can’t really explain all the ranges of emotions I felt when I saw this notice,” she said. “It’s an abbreviated feeling of the stages of grief—except the one thing I couldn’t do was accept it.”

Holding up the plain white card mailed to her former home “so people can see how innocent they look,” Hawkins explained what it took to regain her right to cast a ballot—namely, a bundle of determination, a lot of wasted time, and lawyers from the ACLU. “In my wildest dreams,” Hawkins said, “I never imagined that I would be here in 2019 fighting the same issues my ancestors have waged since arriving on these shores in 1619. I am asking Congress to intervene in what was fought for and, many of us thought, won.”

In Alabama, another Republican election chief, John Merrill, took the trickery to a new level as he sliced a whopping 780,000 voters from the rolls. “As long as I’m secretary of state,” he’d boasted in 2016, “you’re going to have to show some initiative to become a registered voter in this state.” The following year, with a special U.S. Senate election in the offing, Merrill sent non-forwardable postcards to all 3.3 million Alabama voters containing their registration information. If the details were accurate, and the voter hadn’t moved, they were asked to “retain” the card. If the details were wrong—usually meaning someone had moved, but wouldn’t be getting the card—they were asked to drop the card back in the mail, marked “return to sender,” but without being able to change their information. It was no great surprise that on Election Day, many Alabamians showed up at the polls to be told they could no longer vote, having been moved to the “inactive list.”

At the hearing in Birmingham, Fudge and the subcommittee heard about an even more devilish ploy to disqualify black and poor voters in Alabama. After passing a law that required a photo ID to vote, the state announced the closure of 31 driver’s license offices, almost all in predominantly black parts of the state. “The rationale was saving taxpayer money,” University of Alabama law professor Jenny Carroll testified. But it didn’t save much—between $200,000 and $300,000, in a state where annual budgetary shortfalls typically range from $100 million to $200 million. The main effect was forcing tens of thousands of citizens to drive hours to get the newly required ID. After a court challenge, the state agreed to reopen the disputed offices—one day a month. “But good luck finding them, or figuring out their hours,” Carroll said, since the state doesn’t post them.

 

THE SHEER INVENTIVENESS Republicans have displayed since Shelby opened the voter-suppression floodgates would be impressive if it were directed at something other than denying a constitutional right. In Florida, the subcommittee heard from Andrew Gillum, the narrowly defeated gubernatorial candidate turned voting-rights activist, who described how lawmakers set out this year to undercut last November’s referendum to allow the state’s 1.6 million ex-felons to vote. “We were unambiguous as voters,” Gillum said quite accurately—65 percent voted for restoring the rights. “We were going to be a state that didn’t judge people forever for their worst day.” But Republican lawmakers, fearing the consequences of letting so many ex-felons vote, decided to attach some serious strings: Only those who pay all fines and fees associated with their cases (which accrue interest at a steep rate while they’re incarcerated) will be eligible to vote again. The Brennan Center has estimated that in other states with a similar rule, only 3 percent of former felons end up getting their rights restored.

And so it went on the Elections Subcommittee’s spring road trip: gruesome and well-documented examples of suppression piling up everywhere, attesting to the resurgence of Jim Crow–style voting restrictions since 2013. If Congress ever passes a new Voting Rights Act, and the Supreme Court considers it again, Justice Roberts should be played a highlight reel of these hearings—especially from the most poignant and emotional of them, held on the Standing Rock Indian Reservation in the Dakotas.

The leaders of five different tribes testified about what happened after a Democrat, Heidi Heitkamp, won a U.S. Senate seat from North Dakota in 2012 by a margin of fewer than 3,000 votes. “We believe Standing Rock votes had a significant impact in that election,” said the tribe’s judicial chairman, Charles Walker, “with Native votes putting her over the top.” The state’s Republican legislature responded by imposing a photo-ID requirement, knowing that most Natives lacked them—because many don’t drive, don’t have traditional street addresses, and because, as Walker said, “IDs cost money that people simply do not have. Our family poverty rate is 35.9 percent. The nearest driver’s license site is 40 miles away.”

Like most of the other tribes, the Standing Rock Sioux figured out a way to make voters eligible for Heitkamp’s re-election attempt last November—by spending money it couldn’t afford to map new street addresses and print IDs for free. Alysia LaCounte, a lawyer from the Turtle Mountain Band of Chippewa, broke down as she described the economic suffering on her 19,000-person reservation, and the Herculean effort and expense required to make longtime voters eligible again. “Our unemployment rate is 69.75 percent,” she said, not wishing to round it up. “In the past we’ve made IDs, but they cost $15. Fifteen dollars is milk and bread for a week for a poor family.” The Chippewa decided to make the IDs free, but on the first day of printing them, the machine melted down. So they sought donations for a new one. Staff worked endless overtime hours to make 2,400 new IDs to satisfy the legislature. Get-out-the-vote rallies were held, and turnout went up by 42 percent. “But please understand,” LaCounte said. “This took a great amount of financial and time resources. The tribes organized like never before. Students led a march to the polls on Election Day, in a snowstorm with windchills. But luckily most of that was downhill.”

Evan Vucci/AP Images

People waited in line outside the Supreme Court to listen to oral arguments in the Shelby v. Holder voting rights case. 

After hearing all this, the Elections Subcommittee’s ranking Republican member, Rodney Davis of Illinois, lauded the tribes’ patriotic efforts. But their stories offered no evidence of voter suppression, he said: Turnout had gone up, hadn’t it? Walker shot down that line of argument in a hurry. “The lack of cultural understanding and knowledge is so wide a gap,” he said. “A lack of understanding, or even wanting to understand. If it comes to this, are you gonna eat, or are you gonna vote? You’re gonna choose to take care of your family first.”

By the time her subcommittee reached Florida’s Broward County, Fudge had heard quite enough Republican talk about rising vote totals giving the lie to voter-suppression claims. “It’s interesting that we talk about the numbers of people voting,” she said with a small smile. “Because we vote in spite of difficulties doesn’t make those difficulties right. It doesn’t make it right that they tell us in Standing Rock they are voting in chicken coops. In Brownsville, it doesn’t make it right that they are voting in police stations, because they are afraid of police. It doesn’t make the purges right: Poor people move more, so they don’t get the junk mail. And the Constitution of the United States does not say that if you miss a vote, we’re not going to let you vote anymore. The Constitution does not say if you miss two votes we’re not going to let you vote anymore. It says you have a right: an unfettered, unabridged right to vote in this country if you are a citizen.

“We will support democracy in Venezuela, in Russia, in China, everyplace but here,” Fudge said. “Every time we change the rules, which we do in every single election, we make it more difficult for people to vote. If you’re confused about what time of the day you can vote, it is suppressing your vote.”

 

SEVERAL TIMES DURING the field hearings, Fudge was moved to repeat a pledge that won’t be easy to fulfill. In Atlanta, for instance, after hearing from Stacey Abrams about how “malfeasance and incompetence worked in tandem” to create the conditions for her narrow defeat in the 2018 governor’s race, Fudge leaned forward on the dais. “As they say at home, we gonna fix it,” she said, nodding. “I promise you we will.”

But there’s only one real fix for the 24 states that have restricted voting rights since Shelby, aside from overcoming Republican gerrymanders to elect Democratic majorities in state capitols: Congress has to update the Voting Rights Act in a way that passes muster with the Supreme Court. Without a federal solution, the endless round of new restrictions, followed by equally endless rounds of court battles—then followed by newly worded laws or amendments after one voter restriction gets struck down—will continue in the states. “Restoring preclearance in states like North Carolina is the only solution,” says Tomas Lopez. “Otherwise, you’ll still have this cat-and-mouse game that’s been going on. Shelby happens; North Carolina passes its voter-ID law; then you’ve got three years of litigation and it’s declared unconstitutional. Then you have voters pass an amendment, as they did in 2018, and now we’re all back in court. You have ID in place; you don’t have ID in place; maybe you have ID in place.”

The game itself is a form of suppression. The uncertainties, the news coverage, the confusing court battles have effectively spread what Cliff Albright, co-founder of Black Voters Matter, calls “a fog of confusion over voting.” The skepticism Albright and his Selma-based group face when they try to engage voters throughout the South can be intense, he says. “It’s a combination of all this stuff we’re talking about, right? When you know the powers that be don’t want you voting, it says, ‘Everything you’re already thinking about how this is a rigged system, all of that is true.’ People say, you know: They don’t want us to vote, they’re not going to let us vote, and anyway my vote isn’t going to make a difference. And the Republicans—they know this. Just like they know the impact Voter ID is going to have. They know.”

They also know that Democrats face a daunting set of obstacles in restoring the Voting Rights Act to its full powers. The Voting Rights Advancement Act, which aims to do that, is likely to pass the House later this year—and then, unless a handful of Senate Republicans can be brought on board, be sentenced to a quiet death by Majority Leader Mitch McConnell. The Voting Rights Act used to win bipartisan agreement; when Congress reauthorized it in 2006, it sailed through the Senate with unanimous Republican support. But the white backlash to Obama’s 2008 victory, which elevated a harder-right Republican Party to power in Washington and most states, has made that sort of amicable agreement seem as antiquated as Leave It to Beaver. And even if the VRAAmade it through Congress, before or after 2020, its new formula for putting states under preclearance would face an uncertain fate when a Republican challenge brings it back before the Supreme Court.

The VRAA, authored by Alabama Representative Terri Sewell, meets Roberts’s demand for a “contemporaneous” formula. States with 15 or more voting-rights violations in the last 25 years would qualify; right now, that would include most of the South—Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Texas, and Virginia—along with California and New York. (Arizona and Arkansas are right on the edge, and Ohio is coming up quick.) The law would task the Justice Department with maintaining a list of violations in every state and county. And once again, the states that make a habit of suppressing voters would have to submit every voting change, right down to a new polling location, for approval.

Congress can pass other laws to mandate better voting practices—and Democrats are trying to do just that—but without preclearance, they’ll have no teeth. The first measure the new House majority passed in March, the For the People Act, was a progressive mirror image of North Carolina’s monster voting law: It would make voter registration automatic for all qualified citizens, allow online registration, set minimum hours for early voting nationwide, create a donor-matching finance system, and mandate independent redistricting commissions to quell gerrymandering. “What’s compelling is that it takes the offensive, when voting-rights advocates have been on the defensive for so long,” says Lopez. “It’s a turn toward encouraging voter participation.”

But even if the bill got through the Senate and withstood court challenges, it would be difficult to enforce under what’s left of the Voting Rights Act. If states thumbed their noses at the law, the only recourse would be for voters and civil rights groups to sue under Section 2 of the VRA. But Section 2 litigation is hugely expensive; for just one of the dozens of lawsuits in North Carolina, a lawyer testifying in Halifax said, “counsel estimated more than $10 million in costs just on the plaintiff’s side.” Besides, as Abrams pointed out in Atlanta, “preclearance allows us to cure harm before it’s caused. Under the current system, that harm has to already exist, and that harm has far-reaching and deleterious effects,” no matter the outcome of a particular lawsuit. “We have to understand that voter suppression is not simply a momentary act. It is a system of disconnecting our citizens from the policies that govern their lives. When you have no faith in the system, you have no reason to participate in the system.”

When Roberts wrote the majority opinion in Shelby, he took issue with singling out particular states for federal oversight. “In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” the chief justice wrote. “Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.” But even if you granted Roberts’s rosy view that Alabama had become just another Vermont when it came to voting, the reality is clearly different in 2019. While many blue states are passing progressive laws—including their own versions of parts of the For the People Act—Republicans in red and battleground states have spent the last six years winding back the clock to the good old days when voting was a (white) privilege, not a right.

President Lyndon Johnson, when he introduced the Voting Rights Act, noted, “Every device of which human ingenuity is capable has been used to deny this right.” Johnson would not have been surprised at the ingenuity unleashed by the Supreme Court’s evisceration of the law almost 50 years later. “It is so Jim Crow, what we’re seeing,” voting-rights scholar and White Rage author Carol Anderson told me last fall. “We often think about the violence, the clash on the Pettus Bridge, the murders of Herbert Lee and Louis Allen, who were working to get people registered to vote. But Jim Crow operated under the legal system. That’s what we miss. The literacy tests, the poll tax, that all had the aura of legitimacy—‘We don’t want voters who don’t understand the U.S. Constitution to vote, do we?’ But it had the purpose of delegitimizing American citizens. Then as now.” 

 

The Alabama law requiring a photo ID to vote was passed before the Shelby decision, not after, as this article originally stated.

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