“Side Door To Voting Rights Pre-Clearance”: The Next Best Way To Enforce The Voting Rights Act
I mentioned this briefly at Lunch Buffet, but because the story will be with us for a while, let me quote from Lyle Denniston’s explanation at SCOTUSblog of Eric Holder’s strategy for re-establishing a preclearance requirement for states engaged in repetitive and egregious voting rights violations in the wake of the Supreme Court’s Shelby County v. Holder decision:
The preclearance provision is contained in Section 5 of the Voting Rights Act. It has been widely considered to be the government’s most effective legal weapon against race bias in elections, because it requires states and local governments with a past history of racial discimination in voting to get official permission in Washington before they may put into effect any change, however small, in voting laws or procedures.
The 1965 law provided two ways to impose a Section 5 obligation on a state or local government. One was a virtually automatic formula, contained in Section 4 of the law. If a state or local government had a sustained history of racial bias in its voting patterns in the past, that triggered a coverage formula that led directly to a Section 5 preclearance obligation. Preclearance can be sought either from the Justice Department or from a three-judge District Court in Washington.
The second way to get a state or local government put under a preclearance duty is the 1965 law’s Section 3 — the one that the Attorney General said the government will now be invoking. If a state or local government is found to have recently engaged in intentional race bias in voting, a court has the power to impose the preclearance duty on that jurisdiction for a set period of time. It is not an automatic method, in contrast to the coverage formula in Section 4.
While the Supreme Court in the Shelby County ruling did not disturb Section 5 and the preclearance requirement, it did strike down the Section 4 coverage formula. That has been the quickest and most effective way to lead to Section 5 preclearance. The Court’s majority ruled that the coverage formula was seriously out of date, and could no longer be used to trigger Section 5 for any state or local government anywhere in the country.
The Shelby County decision did not disturb Section 3 as a separate way to bring about a preclearance duty. That is why advocacy groups — and now the Obama administration — are turning to Section 3 as the next-best way to enforce the 1965 law through preclearance.
The immediate effort will be focused on Texas, thanks to past court findings of intentional discrimination. But challenges to new voting rules and districting decisions elsewhere–most notably those in North Carolina, which are setting a kind of Gold Standard for voter dilution and repression–could well be next, particularly if the Texas litigation is successful.
BTW, I’d like to note that Lyle Denniston is 81 years old. The clarity and comprehensiveness of Denniston’s writing gives this old goat hope for a journalistic second wind that lasts a while.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, July 25, 2013
“Like Thieves Covering Their Tracks”: North Carolina Republicans Push Extreme Voter Suppression Measures
This week, the North Carolina legislature will almost certainly pass a strict new voter ID law that could disenfranchise 318,000 registered voters who don’t have the narrow forms of accepted state-issued ID. As if that wasn’t bad enough, the bill has since been amended by Republicans to include a slew of appalling voter suppression measures. They include cutting a week of early voting, ending same-day registration during the early voting period and making it easier for vigilante poll-watchers to challenge eligible voters. The bill is being debated this afternoon in the Senate Rules Committee. Here are the details, via North Carolina State Senator Josh Stein (D-Wake County):
If anyone had any doubt about the bill’s intent to suppress voters, all he/she has to do is read it. The bill now does the following:
*shortens early voting by 1 week,
*eliminates same day registration and provisional voting if at wrong precinct,
*prevents counties from offering voting on last Saturday before the election beyond 1 pm,
*prevents counties from extending poll hours by one hour on election day in extraordinary circumstances (like lengthy lines),
*eliminates state supported voter registration drives and preregistration for 16/17 year olds,
*repeals voter owned judicial elections and straight party voting,
*increases number of people who can challenge voters inside the precinct, and
*purges voter rolls more often.Meanwhile, it floods the democratic process with more money. The bill makes it easier for outside groups to spend on electioneering and reduces disclosure of the sources. It also raises the contribution limits to $5k per person per election from $4k and indexes to amount to rise with inflation.
The bill even eliminates Citizens Awareness Month to encourage voter registration, notes Brent Laurenz, executive director of the nonpartisan North Carolina Center for Voter Education. Because God forbid we encourage people to vote! The proposed bill eliminates nearly all of the democratic advances that made North Carolina one of the most progressive Southern states when it comes to voting rights and one of the top fifteen states in voter turnout nationally, guaranteeing that there will be longer lines at the polls, less voter participation and much more voter confusion.
The legislation is likely to be deeply unpopular. For example, 56 percent of North Carolinians voted early during the 2012 election. Blacks used early voting at a higher rate than whites, comprising a majority of those who voted absentee or early. According to Public Policy Polling, 78 percent of North Carolinians support the current early voting system and 75 percent have used it in the past.
In addition, over 155,000 voters registered to vote and voted on the same day during the early voting period in 2012. “Voters expressed their satisfaction and gratitude that North Carolina had a process that afforded citizens with more opportunities to register and vote,” said a 2009 report from the state board of elections.
Republicans in North Carolina have taken abuse of the democratic process to a whole new extreme: they’ve won elections with the help of huge corporate money, they’ve gerrymandered the legislative maps to resegregate the state and drastically limit the representation of their political opponents, they’ve passed a slew of extreme right-wing bills in the past few months to benefit the top 1 percent and harm everyone else—and now they’re going all out to prevent those opposed to that political agenda from exercising their democratic rights. “There’s a certain evil symmetry to the proposal,” writes Rob Schofield, director of research for NC Policy Watch. “After having spent months passing scores of regressive and destructive proposals into law, state leaders are now, like thieves covering their tracks, doing everything in their power to make sure they’re not caught or punished for their actions.”
In the final depressing twist, North Carolina no longer has to clear these voting changes with the federal government, since the Supreme Court invalidated Section 4 of the Voting Rights Act. Nevertheless, it’s almost certain parts of the legislation—if enacted—will be challenged under the state constitution or other provisions of the VRA, and could very well spark a major backlash among North Carolina voters. In twelve weeks, more than 900 North Carolinians have been arrested for peaceful protest as part of the Moral Monday movement. Recently, Senate Rules Committee Chairman Tom Apodaca boasted that North Carolina would no longer have to go through the legal headache of complying with Section 5 of the VRA. Responded Rev. Barber of the North Carolina NAACP, “If you think you can take away our voting rights, you’ll have a headache.”
[UPDATE, 3:22 pm, July 23: The bill passed the Senate Rules Committee this afternoon, now goes to full Senate and then to House.]
By: Ari Berman, The Nation, July 23, 2013
“Whether The Pretense Makes Sense Is Irrelevant”: The War On Voting In A Post Voting Rights Act World Just Got Worse
In North Carolina, thanks to Republican gains in the 2010 state elections, the congressional district lines already drawn in such a comically gerrymandered way, the state’s delegation bears little resemblance to the actual wishes of voters. In 2012, for example, a majority of North Carolinians voted for Democratic congressional candidates, and yet, only 4 of the state’s 13 members of the U.S. House are Democrats.
But as the Los Angeles Times reports today, that’s apparently not quite good enough for GOP state policymakers. In a story Rachel has covered on the show, now that the district lines have been gerrymandered to ensure a Republican advantage regardless of voters’ wishes, the next step is to restrict voters’ access to their own democracy.
The GOP chairman of the state Senate rules committee, Sen. Tom Apodaca, said he would move quickly to pass a voter ID law that Republicans say would bolster the integrity of the balloting process. GOP leaders also began engineering an end to the state’s early voting, Sunday voting and same-day registration provisions, all popular with black voters. Civil rights groups say the moves are designed to restrict poll access by blacks, who vote reliably Democratic.
Up until about a week ago, this would ordinarily be the point at which voting-rights advocates, civil rights activists, and anyone concerned with voter access and election fairness would say, “Whew, it’s a good thing the Voting Rights Act still exists. There’s no way these North Carolina’s measures will pass muster.”
But all of that changed rather abruptly when five justices on the U.S. Supreme Court gutting the Voting Rights Act and gave GOP policymakers in North Carolina and elsewhere a green light to start restricting Americans’ access to the ballot box. It is open season on voting rights and Republicans throughout the South are seizing the opportunity.
Originally, GOP lawmakers in North Carolina held back on pursuing voter-ID laws, knowing how racially discriminatory they are. But thanks to the Supreme Court, they no longer care.
What’s especially interesting to me as how thin the pretense is. At least on the surface, Republicans say they need to impose the harshest voting restrictions since Jim Crow to prevent “voter fraud.” In reality, such fraud is practically non-existent, but it nevertheless serves as a convenient pretense. But how does ending Sunday voting prevent fraud? Why eliminate early-voting opportunities and make longer voting lines, neither of which relate to fraud at all?
Of course, questions like these only matter if there’s a real debate, and with Republicans controlling North Carolina’s legislature and governor’s office, whether the pretense makes sense or not is apparently irrelevant.
By: Steve Benen, The Maddow Blog, July 2, 2013
“Echos Of The Past”: Civil Rights Assaulted By Supreme Court
Last week was bittersweet for the cause of human dignity.
On one hand, the Supreme Court gave us reason for applause, striking down barriers against the full citizenship of gay men and lesbians. On the other, it gave us reason for dread, gutting the 1965 Voting Rights Act. The 5-4 decision was stunning and despicable, but not unexpected. The country has been moving in this direction for years.
The act is sometimes called the crown jewel of the Civil Rights Movement, but it was even more than that: the most important piece of legislation in the cause of African-American freedom since Reconstruction. And in shredding it, the court commits its gravest crime against that freedom since Plessy v. Ferguson in 1896.
That decision ratified segregation, capping a 30-year campaign by conservative Southern Democrats to overturn the results of the Civil War. Given that the Voting Rights Act now lies in tatters even as Republicans embrace Voter ID schemes to suppress the black vote, given that GOP star Rand Paul has questioned the constitutionality of the 1964 Civil Rights Act, one has to wonder if the results of the Civil Rights Movement do not face a similar fate.
Or, as Georgia Rep. John Lewis put it when I spoke with him Monday, “Can history repeat itself?”
Lewis was the great hero of the battle for voting rights, a then-25-year-old activist who had his skull broken by Alabama state troopers on Edmund Pettus Bridge in Selma, AL while leading a march against the use of poll taxes, literacy tests, morals tests, economic intimidation, clubs, guns and bombs to deny black people the ballot. The law he helped enact required states and counties with histories of voting discrimination to seek federal approval before changing their voting procedures. (Those that behaved themselves for a decade could be released from that requirement.)
The court struck down the formula the law uses to determine where discrimination lives (and therefore, which jurisdictions should be covered), saying the dates are too old to be reliable. As Chief Justice John Roberts noted in writing for the majority, the country has changed dramatically since that era. African-American electoral participation is at levels undreamt of in 1965.
And so it is. Because. The Act. Worked.
Using that success as an excuse to cripple it, noted Justice Ruth Bader Ginsburg in her dissent, is like “throwing away your umbrella in a rainstorm because you are not getting wet.” Indeed, had the nation not changed dramatically since 1965, would that not have been cited as evidence of the Act’s failure? Damned if you do, damned if you don’t, then: The Voting Rights Act never had a chance.
This court, said Lewis, “plunged a dagger in the heart” of the freedom movement. Nor is it lost on him that the majority which struck down this bedrock of black freedom included a black jurist: Clarence Thomas. “The brother on the court,” said Lewis, “I think he’s lost his way.”
So what now? Lewis says we must push Congress for legislation to “put teeth back in the Voting Rights Act.” Given that this Congress is notorious for its adamantine uselessness, that seems farfetched, but Lewis insists bipartisan discussion is already under way.
Fine. Let us demand that bickering, dysfunctional body do what is needed. But let us — African-Americans and all believers in freedom — also serve notice that, whatever lawmakers do, we will not stand placidly by as history repeats and citizenship is repealed, but that we will energetically resist by every moral means.
Saying that, I hear the ghostly echo of those who, once upon a generation, marched into Southern jails, singing “Ain’t gonna let nobody turn me around.” It is an ancient song of defiance that feels freshly — sadly — relevant to our times.
By: Leonard Pitts, Jr., The National Memo, July 3, 2013
“Preventing Access To The Ballot Box”: Polling Disenfranchisement Will Be More Difficult To Flag
Time for everyone to step away from their respective ledges.
A few days have passed since the U.S. Supreme Court ruled on one of the most effective pieces of civil rights legislation ever passed, the Voting Rights Act of 1965.
Some of the kneejerk liberal oratory, the gnashing of teeth, is completely out of step with reality. The court’s decision does not signal a slippage to Jim Crow antics like poll taxes and hatred so violent that merely registering a black person to vote could lead to murder.
Likewise, conservatives would do well to cease gloating about the landmark ruling that nullified an important part of the Act. After all, it’s not like the court found that the nine states and portions of six others receiving extra scrutiny have become bastions of free and equal treatment for all voters.
In fact, records compiled for Congress the last time it renewed the Voting Rights Act in 2006 reflect many examples of disparate impacts for voters in recent years.
Clearly, a black man in the White House does not mean the nation has eradicated discriminatory problems in voting, intentional or not.
The problem now is Congress.
Congress needs to rewrite the guidelines nullified by the ruling to consider new situations across the United States. Supreme Court Chief Justice John Roberts tried to nudge toward that goal in the ruling.
Dramatic demographic shifts necessitate it. New populations of voters not fully considered in 1965 such as Hispanics, Asians and increasing numbers of less mobile elderly are bringing new challenges to ensuring access to the polls.
The Court’s 5-4 ruling in Shelby v. Holder made irrelevant a portion of the law initially intended to halt the horrific abuses of the civil rights era.
Alabama’s Shelby County challenged a section of the Voting Rights Act that mandated so-called pre-clearance standards. Most of the states and some of jurisdictions covered are in the South. Under Section 5 of the Voting Rights Act, they must first receive the federal government’s permission before redrawing legislative maps, shifting polling places or enacting new rules on voter identification.
These jurisdictions must prove to the Justice Department or a panel of federal judges that planned changes will not have a discriminatory effect.
Problem was, the areas were chosen by past abuses. Too far in the past, the court decided, nullifying the formula used to determine who is covered.
The court wants Congress to readdress the formula, using more current voting patterns. Congress failed to do that the last time the Voting Rights Act was renewed.
The Justice Department can and will still pursue abuses. They’ll be busy.
Accessibility to the ballot box is under assault in America. Legislatures nationwide are passing changes to voting laws, often under the guise of stopping voter fraud.
Repeatedly, politicians pushing for the measures cannot prove fraud exists. Often, they are mislabeling database errors as fraud. Problems like two people with the same name, inaccurate data entry of addresses or birthdays. The glitches need to be eliminated; new technology can be employed.
But the goal should always be increasing access for eligible voters, not making reaching the ballot box unnecessarily more difficult — and often placing that burden on older, poorer and minority voters.
Here is the thing.
Areas affected by pre-clearance standards could have been exempted from scrutiny years ago. All they needed to do was keep a clean slate, not have any violations for 10 consecutive years. This process, called “bailout,” is included in the act.
But problems continued. Most of the jurisdictions never met that mark.
No, they had to wait until a conservative-leaning court cut them some slack.
And now an ineffective Congress will make it that much more difficult to flag modern-era abuses.
By: Mary Sanchez, The National Memo, July 1, 2013
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