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.)
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.
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* 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.
Update: On Wednesday, August 31, the Supreme Court denied North Carolina’s request for a stay of the Fourth Circuit’s ruling, which would have allowed the state to enforce strict voter ID and reduced early voting. (http://www.scotusblog.com/2016/08/north-carolina-comes-up-one-vote-short-for-stay-in-election-law-case/#more-246115) The three-sentence order indicates that Chief Justice Roberts, along with Justices Kennedy, Alito, and Thomas, would have granted the stay. The Court’s conservatives – without Justice Scalia around – came up one vote short in trying to allow enforcement of North Carolina’s discriminatory voting law.
ReplyDeleteMeanwhile, in the wake of the Fourth Circuit’s ruling, The New York Times reports that a number of North Carolina county election boards are adopting new strategies targeted at suppressing participation by voters of color. (http://www.nytimes.com/2016/08/31/us/politics/election-rules-north-carolina.html) Such strategies include reducing the number of polling places open for early voting and declining to include polling places in African-American areas among those early voting sites. These efforts, in their blatant disregard for the rule of law, only reinforce the need to show up and be heard on – or before – November 8, 2016.