North Carolina’s new voter suppression law shows why the Voting Rights Act is still necessary.
By
Richard L. Hasen|
North Carolina Gov. Pat McCrory, along with the new united Republican legislature, passed the mother of all voter suppression bills
Photo by Chris Keane/Reuters
Usually it takes years to judge when the Supreme Court gets something very wrong. Think of
Justice Kennedy’s opinion for the court in the 2010 campaign-finance case,
Citizens United, freeing corporations to spend money on elections. He wrote that the “appearance of [corporate] influence or access will not cause the electorate to lose faith in our democracy,” a point that remains hotly debated even as the amount of money in federal elections
skyrockets.
But the conservative justices’ decision this past June in
Shelby County v. Holder, striking down a key provision of the Voting Rights Act, has already unleashed
in North Carolinathe most
restrictive voting law we’ve seen since the 1965 enactment of the VRA. Texas is
restoring its voter ID law which had been blocked (pursuant to the VRA) by the federal government. And more is to come in other states dominated by Republican legislatures.
Substituting their own judgment for that of Congress, the five justices in the
Shelby County majority expressed confidence that the act’s “preclearance” provision was no longer necessary, and that there would be ample other tools to fight discrimination in voting. That the conservative justices have already been proven wrong a few scant weeks after the decision came down offers little solace for the
voters of North Carolina, who ironically will have to try to fix the problem using the very mechanism of voting—which the North Carolina legislature is inhibiting.
Back in 2009, the court considered whether to strike down Congress’ renewal of the rule requiring jurisdictions with a history of racial discrimination in voting to get federal approval before making changes in their voting laws. The feds had to withhold approval unless the covered jurisdictions demonstrated the law would
not make minority voters worse off and was
not motivated by an intention to do so.
During oral arguments in that 2009 case (which ultimately
ducked the constitutional question), Chief Justice Roberts
judged the law unnecessary, analogizing the federal approval requirement to an “elephant whistle.” “You know, I have this whistle to keep away the elephants. You know, well, that’s silly. Well, there are no elephants, so it must work.”
Similarly, during arguments in the
Shelby County case,
Justice Kennedy opined that other provisions of the Voting Rights Act, especially Section 2, would still protect minority voters. The
Shelby County opinion itself declared that “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2.”
Congress, of course, had made a different judgment about the continuing deterrent effect of the need to obtain federal preclearance, and Justice Ginsburg’s dissent in
Shelby County analogized chucking the preclearance regime to “throwing away your umbrella in a rainstorm because you are not getting wet.” In a sense, the empirical question can be said to be whether the elephant whistle was never necessary; or the umbrella was working the whole time. It took only months to ascertain that the umbrella was probably working.
Within two hours of the Supreme Court’s issuance of its decision in
Shelby County, formerly covered state Texas announced that it would now enforce its voter identification law (concealed weapons permit OK; student ID not), which had been blocked by both the Department of Justice and a federal court in Washington, D.C.
But the North Carolina legislature with a new united Republican legislature and governor, went further and passed the mother of all voter suppression bills. Aside from enacting a strict voter ID law like Texas’, the bill also cut a week off early voting in the state (used by up to 70 percent of African-American voters in 2012) and barred local election boards from keeping the polls open on the final Saturday before the election after 1 pm. It eliminated same-day voter registration. It opened up the precincts to “challengers” who can gum up the works at polling places and dissuade voters from showing up in the first place. It banned paying voter registration card circulators by the piece. It eliminated pre-registration of 16- and 17-year-olds in the high schools. And it said that a voter who votes in the wrong precinct (perhaps because of a poll worker’s error) will have her whole ballot thrown out—earlier law had allowed such ballots to count for those races in which the voter was eligible to vote.
Forty of North Carolina’s counties
were covered by the preclearance requirement before
Shelby County, and a draconian law like this would never have made it past the Justice Department. Nor would a whole bunch of local shenanigans deployed just last week in suppressing student and other voting.
The Associated Press reported that “The Pasquotank County Board of Elections on Tuesday barred an Elizabeth City State University senior from running for city council, ruling his on-campus address couldn’t be used to establish local residency. Following the decision, the head of the county’s Republican Party said he plans to challenge the voter registrations of more students at the historically black university ahead of upcoming elections.”
Pasquotank County used to be a covered jurisdiction.
It turns out the elephant whistle was really keeping away elephants, in the form of local Republican election officials on election boards, as
Rachel Maddow’s recent report shows. No problem, the
Shelby County Justices might say, just use all those other tools to fight racial discrimination in voting.
But not so fast. It turns out that thanks to the Supreme Court’s ruling in various cases, these other tools are unlikely to work to challenge most provisions of the new North Carolina law. To begin with, if North Carolina can demonstrate that it is motivated in its election laws by an intent to discriminate against
Democrats rather than on the basis of
race (despite the high correlation between the two), many constitutional claims will fail for lack of proof of intentional racial discrimination. Texas has already made
this argument in defending its redistricting that a federal court found to be the product of intentional race discrimination: “DOJ’s accusations of racial discrimination are baseless. In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats. It is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates.”
Further, the court has held that voter identification laws are generally constitutional, with a possible exception for voters who can demonstrate that the law imposes special burdens on them, despite a
lack of evidence of impersonation fraud which could justify the law. As for Section 2....
http://www.slate.com/articles/news_...sion_tactics_show_exactly_why_the_voting.html
View attachment 18
and "well, CACs gonna CAC" while trying to rig the election of the fukkING PRESIDENT.
I guess this is that civil, reasonable method of arguing you planned on transforming HL into.
