|As a result of three new appellate court rulings, more voters of|
color in Wisconsin, Texas, and North Carolina will likely be able
to participate in the general election on November 8, 2016.
Earlier this summer, the Fifth Circuit questioned the legitimacy of Texas’s strict voter ID law in an en banc ruling, noting that the law required forms of identification that voters of color were much less likely to possess. It further noted that Texas failed to take any reasonable steps to ameliorate the discriminatory effects of the strict voter ID requirement.
Just a few weeks ago, the Fourth Circuit struck down a much wider range of voting restrictions in North Carolina as racially discriminatory – including strict voter ID, a ban on same-day registration, and cutbacks in early voting (including Sunday voting). The Fourth Circuit took the district court to task for its “failure of perspective [which] led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.” The district court had approved the restrictions as grounded in partisanship rather than race, justifying them as “politics as usual.” Noting the strong correlation between party identification and race in North Carolina, the Fourth Circuit held that such an explanation “cannot be accepted where politics as usual translates into race-based discrimination.”
Both the Wisconsin district court and the Fourth Circuit found that the plaintiffs had met the difficult burden of showing that the voting laws were enacted with discriminatory intent, in addition to the discriminatory effect the laws would have on voters of color. The Fifth Circuit found that Texas’s law had a discriminatory effect, but remanded to the district court for reconsideration of whether the law also reflected the legislature’s intent to discriminate. Only a finding of discriminatory impact is required to obtain relief under the Voting Rights Act, but a finding of discriminatory intent allows for broader remedies.
The new rulings are a welcome development for voting rights advocates, who had been playing defense since the U.S. Supreme Court’s 2013 ruling overturning Section 5 of the Voting Rights Act of 1965 in Shelby County v. Holder. Section 5 required that jurisdictions – including both counties and entire states – with a record of racially discriminatory voting practices submit any proposed changes to voting laws to the Department of Justice for preclearance. Section 5 recognized the practical problem that an individual denied access to the polls on Election Day might have to wait years for the courts to sort out whether a violation had occurred. Section 5 instead placed the burden on the state seeking to introduce a new election law to show that it would not have a discriminatory effect on access to the polls. Despite of Section 5’s record of success (or perhaps because of it) and its bipartisan reauthorization by Congress in 2006, Justice Roberts wrote for a five-justice majority of the Court and concluded: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”*
The aftermath of Shelby County was predictable: with the protections of Section 5 gone, states across the country enacted (or began enforcing) voter suppression laws which directly targeted voters of color. For instance, the day of the Shelby County ruling Texas announced that it would begin enforcing its strict photo ID law, which had been blocked by Section 5 due to its racially discriminatory effects. North Carolina then passed one of the most comprehensive voter suppression laws in the country after the legislature conducted studies which found that African-Americans would be impacted most by the new voting requirements. (Wisconsin was not covered by Section 5’s preclearance requirement.)
The spate of activity in the voting rights arena this summer has led many to ask: why now? An obvious answer may be that with the 2016 presidential election fast approaching, this summer marked the last reasonable opportunity for courts to intervene. Some commentators have pointed to the recent passing of Justice Antonin Scalia and the absence of a fifth vote on the high court to uphold racially discriminatory voting restrictions (or put more charitably, to interpret such restrictions as motivated by race). Linda Greenhouse of The New York Times argues that the decisions overturning voter suppression laws are part of a larger trend of federal courts being increasingly willing to look beyond phony motives offered by legislatures, particularly in the context of laws which purport to solve imaginary problems like in-person voter fraud. As Judge Catharina Haynes of the Fifth Circuit stated as to the Texas law: “We cannot say the district court had to simply accept that legislators were really so concerned about this almost nonexistent problem.” Similarly, Judge Diana Gribbon Motz of the Fourth Circuit reasoned with respect to North Carolina’s law: “Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist.”
Although the general election is only 75 days away, this story is far from over, as the Supreme Court may still intervene: North Carolina has already requested a stay of the Fourth Circuit’s ruling, and Wisconsin may yet seek similar relief. Still, it appears unlikely there are enough votes on the eight-member high court to disrupt these appellate court rulings before Tuesday, November 8.
The timing could not be more critical, with Republican nominee Donald Trump running an unprecedented campaign (at least, in recent history) founded on racist statements and appeals concerning Latinos, Muslims, and African Americans, among other groups. Thanks to an emerging consensus among the Circuit Courts of Appeal, a broader and more diverse community of Americans will be able to exercise their right to vote in Wisconsin, North Carolina, and Texas this November. Voters should seize the opportunity to send a clear message that such racist appeals have no place in American politics.
* Technically, the Court struck down the coverage formula for Section 5 (contained within Section 4(b) of the Act) and left Section 5 in tact. However, without a coverage formula, Section 5 is toothless. In theory, Congress could pass a new coverage formula to put the teeth back in Section 5, but that would require Congress to agree on a new coverage formula.