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“Just So We’re Clear”: Our Failure to Stop You from Voting Means We Weren’t Trying to Stop You from Voting

North Carolina recently passed what can only be described as an omnibus voter suppression law, including a whole range of provisions from demanding photo IDs to cutting back early voting to restricting registration drives, every single one of which is likely to make it harder for minorities, poor people, and/or young people to register and vote. It’s not just the Tar Heel state—across the South, states that have been freed by the Supreme Court from their prior obligation under the Voting Rights Act to get permission from the Justice Department before changing their voting laws are moving with all deliberate speed to make voting as difficult as possible. Since these are Republican states, these laws are going to pass (some have already), and I think it’s worth addressing what is fast becoming the main argument Republicans use to defend them.

They’ve always said that their only intent was to ensure the “integrity” of elections and protect against voter impersonation, a virtually nonexistent problem. But they recently realized that they’ve got a new, and seemingly compelling, piece of evidence they can muster against charges of voter suppression. Many voter-ID laws were passed over the last few years (the Supreme Court upheld voter ID in 2008), and as Republicans will tell you (see for example here or here), turnout among blacks hasn’t declined, and in some cases has gone up. Blacks even turned out at a slightly higher rate than whites overall in the 2012 election. As Rand Paul recently said, “I don’t think there is objective evidence that we’re precluding African-Americans from voting any longer.”

So what’s wrong with this argument? The voter suppression efforts have been largely unsuccessful because civil rights groups and Democrats have responded to them by redoubling their efforts to get people to the polls. The backlash has essentially brought turnout among African Americans back up to what it would have been without the voter-ID laws, even though in practice, it meant that some people who would have otherwise voted were prevented from doing so, while other people who might have stayed home managed to get to the polls.

So what Republicans are essentially saying is, we’re trying to suppress the votes of black people, but we aren’t succeeding, so how can you criticize us? It’s like me slashing your tires on Saturday, then when you go out and buy four new ones and get them installed in time for Monday morning, I say, “You got to work on time, didn’t you? So that just shows I wasn’t trying to do you any harm.”

The “voter fraud” rationale has been incredibly disingenuous from the beginning, but for me the real tell is the limitations on early voting that often end up being part of these laws. You can argue that everyone should have to prove who they are before casting a ballot. But restricting early voting can have only one purpose, and that’s making it more difficult for people to vote, especially those who happen to take advantage of early voting. And who might that be? You’ll never guess. The Republicans pushing these laws always make sure to eliminate early voting on the Sunday before election day, because that’s when many black churches have historically done “souls to the polls” drives, where people head to the voting locations after church.

So the next time you hear someone say that high turnout among African Americans proves that voter ID isn’t about suppressing votes, remember that they’re trying to use their failure to successfully keep black, poor, and young people from voting to explain away their obvious intent to keep black, poor, and young people from voting. If you put obstacles in my path to screw me, and then I manage with an extraordinary effort to evade them, it doesn’t mean you weren’t trying to screw me in the first place.

 

By: Paul Waldman, Contributing Editor, The American Prospect, August 15, 2013

August 16, 2013 Posted by | Civil Rights, Voting Rights | , , , , , , , | Leave a comment

“Disenfranchising The Electorate”: The Questions That Will Decide The Fate Of Voting Rights In North Carolina

Three lawsuits have been filed challenging North Carolina’s new voter suppression law, which I called the worst in the nation and Rick Hasen says is the most restrictive since the passage of the Voting Rights Act in 1965. Now comes the question: Will the challenges be successful? Here are three factors that will decide the outcome in North Carolina and the future of the VRA and voting rights more broadly.

1. Can Section 2 replace Section 5 of the VRA?

Conservatives opposed to Section 5 of the Voting Rights Act strenuously made the argument before and after the Supreme Court’s decision in Shelby County v. Holder that Section 2 was an adequate replacement for Section 5, which forced states with the worst history of voting discrimination to approve their voting changes with the federal government. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” Chief Justice Roberts wrote for the majority. Testifying before the House, Hans van Spakovsky of the Heritage Foundation called Section 2 “the heart of the VRA” and said “there’s no reason for Congress to take any action” to resurrect Section 5 with a new coverage map.

This is a clever and disingenuous marketing job. In truth, Section 2 has been used almost exclusively to protect majority-minority districts during redistricting and has been narrowed in recent years by the Supreme Court, most recently in Bartlett v. Strickland in 2009. The Department of Justice hasn’t filed a Section 2 lawsuit since 2009 and no major voting restrictions were blocked under Section 2 during the last election. It’s difficult to challenge voting changes before they go into effect under Section 2 and the cases often take years and millions of dollars to defend. “This is one of the fixes we need from Congress,” says Spencer Overton, a professor at George Washington University Law School. “We need some better, clearer standards for Section 2. The law is not well-developed.” Moreover, the more cases that are filed under Section 2, the more likely it is that anti-VRA conservatives will challenge its constitutionality.

Under Section 5, the burden would have been on North Carolina to prove that its voting changes were not discriminatory. Given the overwhelming facts of disparate racial impact in the law, DOJ or the courts would have almost certainly blocked its implementation. The strong evidence of racial discrimination in this case shows the urgent need for Congress to resurrect Section 5.

The outcome under Section 2 “will depend on a lot of discretionary factors instead of a straightforward law, which is why Congress needs to update the VRA,” says Overton. “It’s uncharted territory, so no one really knows what will happen,” says Dale Ho, director of the ACLU’s voting rights project. The federal lawsuits have been assigned to Judge Thomas Schroeder of the Middle District of North Carolina, a George W. Bush appointee regarded as an establishment Republican.

2. Did North Carolina Republicans intentionally discriminate against minority voters?

Lawsuits brought by the North Carolina NAACP and the ACLU ask that North Carolina be covered under Section 3 of the VRA, so that they must seek federal approval of their voting changes for a period of time, based on a “preponderance of evidence” of intentional discrimination. DOJ recently asked a court to do this with Texas. “The General Assembly has discriminated against African Americans and other voters of color in violation of the Fourteenth Amendment, and thus coverage under Section 3(c) is mandated under the Voting Rights Act,” the ACLU plaintiffs in North Carolina write.

The lawsuits argue that clear evidence of the law’s discriminatory burden on African-Americans—who were disproportionately more likely to lack ID and to use early voting and same-day voter registration, for example—was presented during the legislative debate and that Republican sponsors of the bill did nothing to alter the legislation. “After Shelby County v. Holder, the courts are going to have to take these intent claims seriously,” says Penda Hair, co-director of the Advancement Project, which filed suit on behalf of the North Carolina NAACP.

But North Carolina could argue, like Texas, that its law was simply aimed at disenfranchising Democrats, not minorities, and thus is not intentionally discriminatory. Proving intentional discrimination in court is very difficult. One change Congress could easily make is for Section 3 to cover voting changes that have a discriminatory impact, not intent. Under that standard, North Carolina would almost certainly have to clear its voting changes with the feds for a period of time.

3. Will voter suppression efforts produce an electoral backlash among minority voters?

It’s almost considered a truism today that laws meant to disenfranchise minority voters will motivate more minority voters to cast a ballot in order to defend their most sacred right, since that’s what happened in 2012. But the backlash against voter suppression in the last election was the result of a number of unique factors: an extremely well-organized and well-funded Obama campaign, a poorly run Romney campaign that did almost no outreach to minority voters and the fact that many of the new voting restrictions were blocked or repealed in key battleground states like Ohio, Wisconsin and Pennsylvania.

We shouldn’t assume that such a backlash will become the new normal, especially as more onerous laws are put on the books in the wake of the Supreme Court’s decision. “The 2012 election was an anomaly, because of the candidate and campaign at the top of the ticket,” says Overton. “In primaries, off-year elections, midterms, the resources aren’t there to mobilize people to the polls.” And even if the impact of a new voting restriction is ultimately tempered or overcome, that doesn’t make attempts to restrict the right to vote any less immoral. “I hope there is a backlash,” says Hair. “I hope everyone is so angry in North Carolina about efforts to take away their right to vote that they redouble their efforts. But you shouldn’t have to redouble your efforts in order to vote.”

That said, North Carolina is one of the states where you could potentially see a higher turnout as a result of the legislature’s draconian overreach. First off, the Republican legislature is deeply unpopular, with a 20 percent approval rating, and so is the new voting bill, with 39 percent approving and 50 percent disapproving. Seventy percent of moderates and 72 percent of African-Americans dislike the legislation. Second, the well-organized Moral Monday coalition has been mobilizing people against the legislature’s actions for months and is strongly positioned to get a lot of people to the polls. Third, the litigation against the law will keep this story in the news and make more people aware of its onerous details. Fourth, there is a competitive Senate race in North Carolina that could decide the balance of power nationally, with Democrat Kay Hagan likely facing North Carolina Speaker of the House Thom Tillis, who was named “legislator of the year” by the American Legislative Exchange Council in 2011 and is closely tied to all of the unpopular legislation passed by the General Assembly.

Republicans have done everything possible, through aggressive racial gerrymandering and onerous new voting restrictions, to protect their majorities in 2014 and beyond. In so doing, they’ve alienated a large segment of the electorate. The next election will be a good test case of the extent to which power-hungry politicians can successfully manipulate the democratic process in order to thwart the will of the people.

 

By: Ari Berman, The Nation, August 14, 2013

August 15, 2013 Posted by | Civil Rights, Voting Rights Act | , , , , , , , | 1 Comment

“You Can’t Gerrymander A Whole State”: The North Carolina GOP’s Extremism May Cost Their Party The U.S. Senate In 2014

Since the GOP took over both North Carolina’s state house and governorship for the first time in more than a century, the state has become a flashpoint, with extremist policies being put into place one after the other, almost as if conservatives were punishing the state for voting for President Obama in 2008.

The right-wing mania seems to have peaked, with abortion laws being injected into any legislation Republicans could get their hands on and the nation’s worst, most blatant voter suppression law.

Republican governor Pat McCrory has said he will sign the new women’s health restrictions — despite a campaign promise not to — and the voting law, though he hasn’t actually read it.

North Carolinians have been gathering every week for Moral Mondays at the state capitol, hoping their protests and the hundreds of resulting arrests will draw attention to the extremism coming out of the quintessential swing state.

But if people aren’t paying attention to North Carolina politics now, they will be, as the battle for the U.S. Senate in 2014 heats up and Democratic senator Kay Hagan defends her seat.

“North Carolina is the closest thing to the tipping point state in the Senate battle,” the New York Times‘ Nate Silver recently wrote.

Silver added, “Although North Carolina is increasingly purple in presidential election years, the coalition of African-Americans and college-aged voters that Democrats depend upon to win races in the state is less likely to turn out for midterm elections.”

And Republicans are well aware of this.

“By all accounts, there is no path to having a Republican majority leader that doesn’t lead through North Carolina,” Thom Tillis, the state House speaker and leading Republican Senate candidate, told the Washington Examiner.

While laws designed to suppress Democratic votes will certainly help Republicans, the controversies invoked by their policies are drawing the attention of the state’s growing unaffiliated voters and the nation.

Some have called North Carolina the “new Wisconsin,” which sounds promising for Republicans who were able to help Governor Scott Walker survive a recall. However, Democrats successfully took back the Senate in those recalls for a brief time, and only lost it again in 2012 due to gerrymandering.

You can’t gerrymander a whole state, and if there is a backlash against the GOP in North Carolina, it could cost Republicans the U.S. Senate.

 

By: Jason Sattler, The National Memo, July 29, 2013

July 30, 2013 Posted by | Politics | , , , , , , , , | 1 Comment

“You Expect Me To Read The Bill?: NC Governor Admits He “Doesn’t Know Enough” About The Voter Suppression Bill He’s About To Sign

North Carolina Gov. Pat McCrory (R) said Friday he would sign a bill passed by the North Carolina legislature that would become the most suppressive voting law in the nation. But when asked to speak about a provision in the bill that would prohibit 17-year-olds from registering in advance of their 18th birthday, McCrory admitted he “did not know enough” and had not read that portion of the bill.

The bill, passed just weeks after the U.S. Supreme Court gutted the Voting Rights Act and paved the way for new suppressive state laws, imposes a laundry list of new restrictions on access to the ballot, including eliminating same-day registration, cutting early voting, easing campaign contribution limits, and expanding the mechanisms for alleging voter fraud. In remarks saying he would sign the bill, McCrory focused on his support for the bill’s voter ID requirement — a particularly suppressive and discriminatory policy that McCrory has long supported. But when asked by an Associated Press reporter about another provision in the bill to limit new voter registration opportunities, McCrory said, “I don’t know enough. I’m sorry. I haven’t read that portion of the bill.”

McCrory also dodged questions about two other elements of the bill that restrict early voting and end same-day registration, choosing instead to tout new campaign contribution limits, and pointing to an amendment — added by Democrats — that would expand early voting hours to make up for the limited early voting days.

When a reporter repeated the original question, McCrory said same-day registration concerns him because of the “possibility for abuse.” He added: “There’s plenty of opportunity for voter registration — online, off-line, through many methods. I thought that was a fair system before, and I think it’s a fair system now.” The Associated Press pointed out that North Carolina has no online voter registration, although voters can download a form online and print it out

In the wake of the U.S. Supreme Court’s June decision that effectively disables federal oversight of states with a history of voting discrimination, states have raced to pass new restrictive voting laws. On Thursday, Attorney General Eric Holder said he would challenge a voter ID law in Texas under another provision of the VRA not affected by the Supreme Court’s ruling. Holder hinted he would pursue similar actions against other states with restrictive laws, saying, “This is the department’s first action to protect voting rights [after the Supreme Court’s ruling]. … But it will not be our last.”

 

By: Nicole Flatow, Think Progress, July 28, 2013

July 29, 2013 Posted by | Voting Rights, Voting Rights Act | , , , , , , , | 4 Comments

“More Money, Less Voting”: North Carolina Passes The Country’s Worst Voter Suppression Law

I’ve been in Texas this week researching the history of the Voting Rights Act at the LBJ Library. As I’ve been studying how the landmark civil rights law transformed American democracy, I’ve also been closely following how Republicans in North Carolina—parts of which were originally covered by the VRA in 1965—have made a mockery of the law and its prohibition on voting discrimination.

Late last night, the North Carolina legislature passed the country’s worst voter suppression law after only three days of debate. Rick Hasen of Election Law Blog called it “the most sweeping anti-voter law in at least decades” The bill mandates strict voter ID to cast a ballot (no student IDs, no public employee IDs, etc.), even though 318,000 registered voters lack the narrow forms of acceptable ID according to the state’s own numbers and there have been no recorded prosecutions of voter impersonation in the past decade. The bill cuts the number of early voting days by a week, even though 56 percent of North Carolinians voted early in 2012. The bill eliminates same-day voter registration during the early voting period, even though 96,000 people used it during the general election in 2012 and states that have adopted the convenient reform have the highest voter turnout in the country. African-Americans are 23 percent of registered voters in the state, but made up 28 percent of early voters in 2012, 33 percent of those who used same-day registration and 34 percent of those without state-issued ID.

And that’s just the start of it. In short, the bill eliminates practically everything that encourages people to vote in North Carolina, replaced by unnecessary and burdensome new restrictions. At the same time, the bill expands the influence of unregulated corporate influence in state elections. Just what our democracy needs—more money and less voting!

“I want you to understand what this bill means to people,” said Representative Mickey Michaux (D-Durham), the longest-serving member of the North Carolina House and a veteran of the civil rights movement who grew up in the Jim Crow South. “We have fought for, died for and struggled for our right to vote. You can take these 57 pages of abomination and confine them to the streets of Hell for all eternity.”

Here are the details of everything bad about the ball, via North Carolina Policy Watch. It’s a very long list:

The end of pre-registration for 16 & 17 year olds

A ban on paid voter registration drives

Elimination of same day voter registration

A provision allowing voters to be challenged by any registered voter of the county in which they vote rather than just their precinct

A week sliced off Early Voting

Elimination of straight party ticket voting

A provision making the state’s presidential primary date a function of the primary date in South Carolina

A provision calling for a study (rather than a mandate) of electronic candidate filing

An increase in the maximum campaign contribution to $5,000 (the limit will continue to increase every two years with the Consumer Price Index from the Bureau of Labor Statistics)

A provision weakening disclosure requirements for ”independent expenditure” committees

Authorization of vigilante poll observers, lots of them, with expanded range of interference

An expansion of the scope of who may examine registration records and challenge voters

A repeal of out-of-precinct voting

A repeal of the current mandate for high-school registration drives

Elimination of flexibility in opening early voting sites at different hours within a county

A provision making it more difficult to add satellite polling sites for the elderly or voters with disabilities

New limits on who can assist a voter adjudicated to be incompetent by court

The repeal of three public financing programs

The repeal of disclosure requirements under “candidate specific communications.”

“We will see long lines, many citizens turned away and not allowed to vote, more provisional ballots cast but many fewer counting, vigilante observers at the polling place and all disproportionately impacting black voters,” says Anita Earls, executive director of the Durham-based Southern Coalition for Social Justice and a former deputy assistant attorney general for civil rights in the Clinton administration. “This new law revives everything we have fought against for the past ten years and eliminates everything we fought for.”

The legislation should be a wake-up call for Congress to get serious about resurrecting the Voting Rights Act and passing federal election reform. Six Southern states have passed or implemented new voting restrictions since the Supreme Court’s decision last month invalidating Section 4 of the VRA, which will go down in history as one of the worst rulings in the past century. Voting rights groups (and perhaps the federal government) will soon challenge at least some of the new restrictions through a preliminary injunction, others sections of the VRA, or the state constitution. But if Section 5 of the VRA was still operable, North Carolina would have to clear all of these changes with the federal government and prove they are not discriminatory—practically herculean task given the facts. The new law would’ve been blocked or tempered as a result. Instead, the North Carolina legislature interpreted the Court’s decision as a green light for voter suppression, which it was, and made the bill as draconian as possible.

Move aside Florida, North Carolina is now the new poster child for voter suppression. The Moral Monday movement in the state is now more important than ever. Maybe someday we’ll look back at this period as the turning point when the nation realized just how important the Voting Rights Act was and is.

 

By: Ari Berman, The Nation, July 26, 2013

July 28, 2013 Posted by | Civil Rights, Voting Rights | , , , , , , , | Leave a comment

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