“Protection Of Minority Voting Rights Is A Thing Of The Past”: SCOTUS Voting Rights Decision Hurls Nation Back To Its Tragic Past
In a 5-4 decision along the ideological lines one might expect, the Supreme Court today cut out the heart and soul of the Voting Rights Act of 1965.
While preserving the purpose and the intent of the momentous civil rights law—as set forth in Section 2 of the Voting Rights Act (“VRA”) which proclaims that no American can be denied the right to vote based on their race or gender—the Court struck down the sole method of enforcing the intent of the law. They accomplished this by declaring Section 4 of the Act, which sets forth the formula for determining which state and local governments must seek federal approval of any and all changes to their voting laws before placing the same into effect, to be unconstitutional.
Writing for the majority, Chief Justice Roberts stated,
“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,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
In other words, it is the opinion of the Court’s majority that the enforcement provisions of the Voting Rights Act worked so well that to continue enforcement under the existing scheme is unconstitutional.
The logic of the majority represents a tragic irony given that the ruling comes at a time when minority voting rights are, once again, under severe attack as state governments under GOP control seek to rig the game in an effort to overcome the demographic and racial shifts in the electorate. These changes dramatically improve the opportunities for Democrats to gain elected office—particularly when it comes to the presidency.
Indeed, it was the Voting Rights Act that was at the heart of successful efforts to stop states attempting to cut back on early voting hours and instituting voter identification laws that would have dramatically affected minority voter turnout during the 2012 election. Now, the opportunity to rely on the law to stop future efforts to curtail minority voting will have vanished in a 5-4 decision.
Not all that many years ago, I might have seen the logic in the majority’s opinion.
A review of registration and voting data in the state and local governments that have been—up until today—required to gain federal approval of their voting and registration laws before placing them into effect, revealed that major steps forward had taken place as a result of the 1965 law. Still, Congress saw fit to continue the formula set forth in Section 4 of the VRA when they renewed the law in 2006 without making changes to which states and local governments are affected—a Congressional decision that rests at the very heart of the Supreme Court majority’s displeasure.
The Court had previously warned Congress of what might come if they failed to make adjustments to the law based on recognizing the advancements made in states still subject to federal oversight. In 2009, the Supreme Court considered the constitutionality of the 2006 extension of the Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Holder. In that case, the Court avoiding ruling on the central issue—the constitutionality of all or part of the VRA. However, the majority went out of their way to highlight their concern that Congress was relying on old data collected in 1974 when calculating which state and local governments would continue to be subject to federal approval of local voter laws.
Congress never got around to reviewing the law, based on the Supreme Court’s admonition, leading to today’s regressive decision.
At the time of the Municipal Utility decision, I saw some value in the Court’s approach. While it remained—and remains—essential that the VRA continue in full force and effect to protect the voting rights of all Americans, it made sense that data constantly be reviewed by Congress so as to grant more sovereign authority to states and local governments who may now adequately protect voting rights. But it remains equally as important that the federal government hold onto the opportunity to clamp down on these governmental units should they return to old habits.
But then came the efforts over the past few election cycles to suppress the vote of minorities in various states throughout the nation. In each instance, the drive to limit access to the polls came in states where the government was fully under the control of Republicans looking to improve the chances of electoral victory in the 2012 presidential election.
We all recall what happened in states like Florida, Pennsylvania and Ohio where difficult and unreasonable voter ID laws, or dramatically shortened early voting hours and other voting opportunities were suddenly legislated into existence.
The State of Texas—a state subject to the requirements of Section 4 of the Voting Rights Act—has now produced the most restrictive voter ID law in the country but has been unable to implement the law as the Feds have yet to approve it. The same is the case in Virginia where an onerous voter ID law has been signed by the Governor but held up pending federal approval as they too are subject to the enforcement provisions of the VRA.
Federal protections of minorities in these states are now a thing of the past. Indeed, the state of Texas has already announced that, based on today’s Supreme Court ruling, they no longer have to wait for federal approval of their voter ID law and that the law will go into effect immediately.
Seeing this happen makes it all too clear that many of these states have not changed their ways since the day President Lyndon Johnson signed the Voting Rights Act into law and that the only thing that has protected minorities in these states during the years following 1965 has been the very part of the Voting Rights Act that has now been invalidated.
The Supreme Court got it wrong. By not recognizing that the success of the Voting Rights Act enforcement provisions was based on the existence of the enforcement provisions, the Court has condemned the nation to relive some of the worst days and inequities in our history.
While today’s decision does leave the door open for Congress to take on the issue and re-craft Section 4 with an eye to current data, does anyone actually believe that this will happen with the GOP in control of the House of Representatives?
Not likely—or at least not likely until we have a federal government fully back in the hands of the Democratic Party.
For anyone out there who believes that midterm elections are not particularly exciting or worth your time, the stakes of the 2014 midterms just increased dramatically. The nation took a giant step backwards today—a misstep that can only be corrected by the return of the House of Representatives to Democratic control and retaining the Democratic majority in the Senate. As a result, while today’s Supreme Court decision makes this a very sad day in the advancement of the nation, it may be just the kick in the pants Americans require to get out of the house and down to the voting booth in November, 2014.
Let’s hope so.
A lot of Americans suffered a great deal—some making the ultimate sacrifice—to make the Voting Rights Act of 1965 a reality.
We should not let them down now.
By: Rick Ungar, Op-Ed Contributor, Forbes, June 25, 2013
“One Nail In The Coffin”: Wisconsin Voters Reaffirm Election Day Registration
Voters in Madison and Milwaukee have reaffirmed the state’s Election Day registration law, with an overwhelming majority supporting the practice in two advisory referendums on Tuesday’s ballot. Allowing voters to register on Election Day has helped Wisconsin achieve one of the highest voter turnout rates in the country — but some state Republicans have proposed rolling back the state’s highly successful law.
Advocates say the vote on the advisory referendum sends a message to Wisconsin Governor Scott Walker and legislative leaders that election day registration works well and should be retained. Around 82 percent of voters in Dane County (where Madison is located) supported Election Day registration, and 73 percent of Milwaukee voters backed it.
The Milwaukee Common Council and Dane County Board added the advisory referendums to the April 2 ballot after Governor Walker indicated support for ending election day registration in November 2011, followed by other top Republicans, including Assembly Speaker Robin Vos. Students, people of color, and the poor are most likely to register on election day — largely because they are more likely to have moved since the last time they voted — and proposals to end Election Day registration were considered part of the larger GOP push to rig the voting process for partisan gain.
Pew Charitable Trusts recently ranked Wisconsin as one of the highest-performing states in the nation during the 2008 and 2010 election cycles, and praised the Dairy State for allowing voters to register at the polls on election day, which has helped Wisconsin achieve the second-highest voter turnout rate in the nation. The other seven states that allow Election Day registration also rank among those with the highest turnout in the country.
In 1975, Wisconsin was one of the first states in the country to allow voters to register on election day, and in recent years others have been catching on: last year, California and Connecticut passed Election Day registration (but the laws have not yet taken effect), and fourteen other states are considering similar proposals this year.
In February, Wisconsin’s Government Accountability Board estimated that ending Election Day registration could cost $14.5 million. Walker backed off his support for any measure that cost that much, but Speaker Vos questioned the cost estimate.
Tuesday’s referendum votes are non-binding, but voting rights advocates hope the measure will put the nail in the coffin for proposals to end Wisconsin’s Election Day registration.
By: Brendan Fischer, The Center for Media and Democracy, April 3, 2013
“Virginia Is The New Florida”: New Voter Suppression Efforts Prove The Voting Rights Act Is Still Needed
In 2011 and 2012, 180 new voting restrictions were introduced in forty-one states. Ultimately, twenty-five laws and two executive actions were passed in nineteen states following the 2010 election to make it harder to vote. In many cases, these laws backfired on their Republican sponsors. The courts blocked ten of them, and young and minority voters—the prime target of the restrictions—formed a larger share of the electorate in 2012 than in 2008.
Despite the GOP’s avowal to reach out to new constituencies following the 2012 election, Republican state legislators have continued to support new voting restrictions in 2013. According to a report by Project Vote, fifty-five new voting restrictions have been introduced in thirty states so far this year. “The 2013 legislative season has once again brought an onslaught of bills to restrict access to the ballot, including proposals to undercut important election laws that have recently opened the electorate to more voters,” writes Erin Ferns Lee. These measures include “strict photo ID policies…voter registration restrictions; voter purges; [felon] disenfranchisement; and policies to cut back or revoke voting laws that have made voting more convenient.”
Here’s the breakdown of where such laws have been introduced.
• Mandating a government-issued photo ID to cast a ballot: Arkansas, Connecticut, Iowa, Illinois, Massachusetts, Maryland, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Virginia, Washington, West Virginia, Washington, Wyoming
• Restricting voter registration drives: Illinois, Indiana, Montana, New Mexico, Virginia
• Banning election-day voter registration: California, Minnesota, Montana, Nebraska
• Requiring proof of citizenship to register to vote: Massachusetts, Missouri, Nevada, Oklahoma, Oregon, South Carolina, Texas, Virginia
• Purging the voter rolls: Colorado, Indiana, New Mexico, Texas, Virginia
• Reducing early voting: Arizona, Indiana, South Carolina, Texas, Wisconsin
• Disenfranchising ex-felons: Virginia.
(On the plus side, thirty states have also introduced measures to make voting easier by adopting online voter registration, election-day registration, expanded early voting and the restoration of voting rights for ex-felons.)
Most of these measures are still pending before state legislatures, but Virginia, which has gubernatorial and legislative elections this year, is leading the way in enacting new voting restrictions. On January 21, 2013, as Virginia State Senator Henry Marsh, a longtime civil rights activist, attended President Obama’s second inauguration on Martin Luther King Day, the deadlocked Virginia Senate took advantage of Marsh’s absence to pass a new redistricting map that reduced Democratic seats by diluting black voting strength in at least eight districts. The measure was ultimately defeated in the Virginia House, but the move set the tone on voting rights for the legislative session.
On Tuesday morning, as the nation followed the debate over Proposition 8 at the Supreme Court, Virginia Governor Bob McDonnell signed a strict voter ID bill. In the last election, Virginians could vote by showing a number of different IDs, including a utility bill, a Social Security card or, this being the South, a concealed handgun permit. The new law restricts the forms of acceptable ID to a driver’s license, a passport, a state-issued photo ID card, a student ID with a photo on it or an employee photo ID. The Commonwealth Institute, a progressive research group, estimates that 869,000 registered voters in Virginia may lack these forms of photo ID, and says the new law will cost the state anywhere from $7 to $21 million to implement.
McDonnell’s spokesman called the photo ID law “a reasonable effort to protect the sanctity of our democratic process.” Yet the measure will likely only exacerbate the existing problems in Virginia’s election system, according to voting rights experts. In the last election, Virginia voters waited up to seven hours to cast a ballot. “Long lines across the state were a result of insufficient resources, poor allocation of resources that did exist, and frequent breakdowns of aging voting equipment,” according to a post-election report by the Election Protection coalition.
Moreover, study after study has shown that voter ID laws disproportionately impact young and minority voters. Not only are these constituencies less likely to have photo ID, but even in states without ID laws, black and Hispanic youth were significantly more likely than whites to be asked to show ID. According to a Politico write-up of a new report by political scientists at the University of Chicago and Washington University, “17.3 percent of black youth and 8.1 percent of Latino youth said their lack of adequate ID kept them from voting, compared with just 4.7 percent of white youth.” Mamie Locke, chairman of the Virginia Black Legislative Caucus, called the ID law “a continuation of attempts by Republicans to suppress the vote of individuals who are not likely to support their right wing agenda.”
Nor is voter fraud a rampant problem in Virginia, as supporters of the voter ID law suggest. There have been only thirty-five cases of alleged election fraud since 2000 in the state, according to an exhaustive survey by News21, and only five cases led to plea deals or convictions. Ironically, the one major case of election fraud in the state last year concerned a GOP firm charged with dumping voter registration forms.
Virginia must receive approval for its election change from the federal government under Section 5 of the Voting Rights Act. The new voting restrictions enacted in Virginia and introduced elsewhere across the country show why Section 5 is still very much needed. If anything, the statute should be expanded in light of contemporary voter suppression efforts, not eliminated.
Virginia is quickly becoming the new Florida when it comes to electoral dysfunction. Like Florida, Virginia also passed new laws this year to restrict voter registration drives and to purge the voter rolls of alleged non-citizen voters. In Florida, such measures forced groups like the League of Women Voters to halt voter registration efforts and wrongly labeled thousands of eligible voters as non-citizens. All of this is happening, coincidentally, in a crucial election year for the Commonwealth.
The continued push to restrict the right to vote reveals the extent to which conservative power remains deeply embedded in the states, thanks to the 2010 election and subsequent aggressive gerrymandering by GOP state legislatures to protect their majorities. To combat this imbalance, Howard Dean’s group Democracy For America is launching a new effort to flip state legislatures from red to blue. The group will start, fittingly, in Virginia this year, and then expand to Iowa, Michigan and Pennsylvania in 2014. DFA plans to spend $750,000 targeting five seats in the Virginia House of Delegates in 2013. Jamelle Bouie explains why this is savvy politics:
It’s hard to overstate how smart a way this is for liberal groups to invest their time and money. Virginia, in fact, is a great case study for why it’s key for Democrats to make gains on the state level. Democrats control both Senate seats in the state, and it was key to Barack Obama’s victories in 2008 and 2012. Despite this, Republicans control all three statewide offices (governor, lieutenant governor, and attorney general), the House of Delegates, and have the tie breaking vote in the state senate. The result? Republicans have been able to push a strong conservative agenda in the state.
With Congress deadlocked, the states are where the action is. It’s good that people are finally taking notice, especially as state politics continue to shift further to the right in many places.
By: Ari Berman, The Nation, March 28, 2013
“Arizona Versus The Right To Vote”: A Law Whose Sole Purpose Is To Disenfranchise Poor And Minority Voters
As part of a broader anti-immigration initiative in 2004, Arizona passed Proposition 200, a law requiring voters to provide proof of citizenship before registering to vote. One person affected by this law was Jesus Gonzalez, a custodian and naturalized American citizen who twice had his registration rejected by the state. Arizona couldn’t verify his naturalization number and erroneously identified his driver’s license as belonging to a non-citizen. Gonzalez’s case has reached the Supreme Court, which heard oral arguments about the constitutionality of Proposition 200 on Monday. The Court should rule that Arizona’s burdensome requirements are inconsistent with federal law and therefore illegal.
The Supreme Court has dealt with Republican legislators’ attempts to suppress voting before. In a highly dubious 2008 decision, the Supreme Court found that an Indiana statute—requiring a show of ID before hitting the ballot box—was not unconstitutional on its face, although it left open the possibility that the statute might be unconstitutional as applied. (The Indiana law was ultimately struck down by the Indiana Court of Appeals.) Because the Arizona law concerns voter registration, it is subject to another form of legal challenge.
In 1993, Congress passed the National Mail Voter Registration (or “Motor Voter”) Act, which among other things created a federal form that would streamline the registration requirements. The law mandates that “each State shall accept and use” the federal form. As the story of Jesus Gonzalez highlights, Prop 200 placed an additional set of requirements on Arizonans before they are able to register. The key question presented by the challenge to Prop 200 is whether the Arizona requirements are inconsistent with federal law. If so, because of the Supremacy Clause of Article VI of the Constitution, the Arizona law is “pre-empted” by the Motor Voter Act and is invalid.
The case for pre-emption in this case is clear and persuasive. The statute unequivocally requires states to use the federal form. To permit states to add additional burdens on registration is inconsistent with the text and purpose of the statute, which was designed to create a streamlined and uniform process. Determining qualifications for people voting for federal offices is a clear federal power. Justice Kagan observed at the oral argument that the Arizona law “essentially creates a new set of requirements and a new form.” Prop 200, therefore, is at war with the federal statute whose purpose was to create a clear process for registration. As the Obama administration noted in its amicus brief, to uphold the Arizona law “would thwart the central purpose of [Motor Voter]: to streamline the process of registering to vote for federal office.”
Justice Scalia, while somewhat more restrained than in the previous oral argument dealing with an Arizona law that conflicted with federal authority, was typically candid about his political support for the objectives of the Arizona vote suppression initiative. Leaving little doubt about his sympathy for the Arizona law, he mocked the federal registration requirements, which make it a criminal offense to misrepresent one’s eligibility to vote. “So it’s under oath. Big deal.” Scalia snorted. “If you’re willing to violate the voting laws, I suppose you’re willing to violate the perjury laws.”
Scalia’s arguments are problematic for two reasons. First, whether or not Scalia thinks the federal requirements are sufficient is beside the point—Article I Section IV gives Congress the power to “make or alter” state voting regulations, so the judgment about what requirements are sufficient rests with Congress, not with Arizona or the Supreme Court. And even on its own terms his argument that the threat of a perjury conviction represents an insufficient deterrent is unpersuasive. Arizona provides no evidence that this kind of voter fraud is a problem. The problems of individual voter fraud the bill allegedly addresses are essentially non-existent, and even in theory it is impossible for individual fraudulent voters to alter the course of an election. And, in particular, it is extremely implausible to think that the illegal immigrants the bill targets are likely to risk attracting the attention of federal authorities by committing perjury on a form submitted to the federal government. It is hard to avoid the conclusion of one Arizona legislator that “was never intended to combat voter fraud. It was intended to keep minorities from voting.”
Scalia also mocked the idea that the additional Arizona requirements represented a substantial burden. “Enclosing your driver’s license number is that immense barrier?” he sarcastically asked Patricia Millet, the attorney representing the challengers. But the data proves Scalia is dead wrong to dismiss the extent of vote suppression caused by the initiative. “The district court,” Millet pointed out, “found that 31,550 people were rejected from voting because of Proposition 200.” This is a serious additional burden which shows that the inconsistency with federal law is not merely formal. The vote fraud Scalia and other Republicans are purportedly concerned with is imaginary, but the burdens created by the Arizona law are quite real.
Arizona’s latest attempt to interfere with federal law is particularly problematic given that it concerns the right to vote. Voting is a field in which greater uniformity is a particular virtue. The fact that standards for registration and voting vary not only between states but within states represents “local control” fetishism at its most inane. State and local administration of voting isn’t merely inefficient; the purpose and effect of this decentralization has been to disenfranchise poor and/or minority voters. In this case, Congress appropriately acted to create more uniform and streamlined standards for vote registration. Arizona should not be allowed to contradict federal law and invite other states to similarly disenfranchise voters.
By: Scott Lemieux, The American Prospect, March 19, 2013
“The Stinch Of Formaldehyde”: GOP “Autopsy” Is Dead On Arrival
The Republican National Committee released its long-awaited post-2012 “autopsy” Monday, in the form of a 99-page report titled the “Growth and Opportunity Project.” Although the report pushes for some drastic changes in the way that the Republican Party conducts itself during elections, it ultimately fails to confront the primary problem: Its policies just aren’t popular with voters.
With the exception of a qualified push for immigration reform, the Growth and Opportunity Project centers around the idea that the Republican Party’s platform is sound, while the messaging is at fault. That comes as no surprise — it was RNC chairman Reince Priebus, after all, who recently declared “I don’t think our platform is the issue” — but this plan is startlingly divorced from the Republicans’ present reality. On nearly every issue facing Congress — from raising the minimum wage, to cutting federal programs, to strengthening gun safety laws, to fighting against climate change — most voters side with Democrats over Republicans.
Further complicating the RNC’s mission is the fact that the GOP has shown absolutely no signs of being ready to change the conduct that led to the party’s overwhelming losses in November.
For example, the Priebus plan notes that “if we are going to grow as a party, our policies and actions must take into account that the middle class has struggled mightily and that far too many of our citizens live in poverty,” adding “The perception that the GOP does not care about people is doing great harm to the party and its candidates on the federal level, especially in presidential years. It is a major deficiency that must be addressed.”
Improving outreach to the poor seems like a great idea in theory. In practice, House Republicans are preparing to vote this week on Paul Ryan’s extremist “vision document,” which explicitly promises to slash funding for programs that help the needy in order to finance a massive tax break for the wealthy.
The report’s suggestion that Republicans “learn once again how to appeal to more people, including those who share some but not all of our conservative principles” seems like a no-brainer. But in reality, those people are called RINOs, and are almost automatically disqualified from national races. Priebus’ report can’t change that reality. Even while the autopsy suggests that “The Republican Party needs to stop talking to itself,” most of the GOP’s brightest stars spent the weekend at the insular Conservative Political Action Conference — to which popular governors Chris Christie of New Jersey and Bob McDonnell of Virginia were not invited, for the unforgivable crime of compromising with some of their states’ many Democrats.
In theory, the report’s suggestion that “if we want ethnic minority voters to support Republicans, we have to engage them, and show our sincerity,” makes perfect sense. In practice, the GOP seems to be going out of its way to antagonize minority voters; even as the autopsy suggests showing sincerity, the party continues to push for voter-suppression laws that nakedly attempt to keep minorities away from the polls. While the autopsy suggests that the GOP “must be inclusive and welcoming” to Hispanic-Americans, Senate Republicans are simultaneously gearing up for a racially-charged filibuster of Thomas Perez, the only Hispanic nominee for President Obama’s cabinet.
The report pushes the party to “establish a presence in African-American communities and at black organizations such as the NAACP,” but it seems to forget that Mitt Romney tried that in July. He ended up getting booed repeatedly for promising to repeal health care reform, and patronizingly claiming to be the best candidate for the black community.
“It all goes back to what our moms used to tell us: It’s not just what we say; it’s how we say it,” Priebus said of his report Monday morning. He is forgetting a more important factor: what they do. The Republicans’ problem isn’t that voters aren’t getting the message about the party’s policies; it’s that too many voters read the GOP loud and clear.
By: Henry Decker, The National Memo, March 19, 2013
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