Did Republicans Just Save the Voting Rights Act?

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Ironically, the furor over voter ID will make it hard for Supreme Court conservatives to justify striking down one of the Act's key provisions.

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Larry Downing/Reuters

One year ago, maybe even six months ago, conventional wisdom had it that a key provision of the Voting Rights Act was in jeopardy, susceptible to another aggressive ruling by a very conservative United States Supreme Court. The five Republican-appointed justices would rule, the theory went, that there was no longer a need for local lawmakers to "pre-clear" voting laws or gerrymanders with federal officials, because Section 5 of the Voting Rights Act had been so successful since its implementation that it was no longer necessary to protect minority rights.

Justice Clarence Thomas, a black man who grew up in Georgia, one of the states "covered" by the Voting Rights Act because of its long history of racial discrimination, said so himself just a few years ago. In Northwest Austin Municipal Utility District v. Holder. a 2009 decision in which the Court uneasily upheld the Voting Rights Act, Justice Thomas declared, as the lone dissenter, that:

The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of "grandfather clauses, property qualifications, 'good character' tests, and the requirement that registrants 'understand' or 'interpret' certain matter," are gone. There is thus currently no concerted effort in these jurisdictions to engage in the "unremitting and ingenious defiance of the Constitution," that served as the constitutional basis for upholding the "uncommon exercise of congressional power" embodied in §5 [citations omitted by me].

So when a live challenge to Section 5 was turned back this May by the D.C. Circuit Court of Appeals, when the judges there noted the provision's viability in yet another decade of election strife, many people reckoned the Court would take the case styled Shelby County v. Holder, overturn the lower court, and narrow or strike down outright the contested statutory provision. These folks may yet be proven right. The Supreme Court still has not decided whether it will accept for review the Shelby County (Alabama) case. We should know in about a month.

But whether the Court does or does not seek to re-enter this battlefield, none of the justices, including Justice Thomas, will be able to say with a straight face that Section 5's usefulness has come and gone. Over and over again in the past few months, in states covered (Texas, Florida, and South Carolina) and not covered (Ohio, Wisconsin, and Pennsylvania) by the Voting Rights Act, the statute has been cited, and relied upon, to successfully block partisan voting laws designed to make it harder for minorities to vote or to have their votes counted.

The image of the statute's usefulness -- its necessity, really -- has been bolstered by zealous GOP lawmakers (and their ALEC sponsors) who have overreached with new voter ID, early voting, and registration laws. The purpose of the laws, the legislative history that preceded them, and the trial testimony that followed them, vitiate the argument that "patterns" of official racial discrimination no longer exist. Yes, the laws on their face are racially neutral. But, as one court after another has noted, the laws' disparate impact upon minority voters is clear.

So Justice Thomas can no longer say, even in a lone dissent, that "covered jurisdictions" under Section 5 "are not now engaged in a systematic campaign to deny black citizens access to the ballot" or that there are "currently no concerted effort in these jurisdictions to engage in the 'unremitting and ingenious defiance of the Constitution.'" For what are these new state voting laws but "unremitting and ingenious" efforts by Republican lawmakers to make it harder, or impossible, for some registered voters to vote?

What else do you call restrictive voting laws that do not prevent the problem (in-person voter fraud) that they purport to prevent? What else do you call restrictive laws that are enacted by legislators who believe that the ill and the elderly, the poor and the dispossessed, who do not have new state-issued photo identification cards, are "lazy" for failing to get them? What else do you call restrictive voting laws whose sponsors proclaim in public that they are designed to ensure election success for one candidate over another?

These laws are "ingenious" in the sense that they are based upon a lie -- the lie that registered voters don't already have an obligation to identify themselves when casting an in-person ballot. The vast majority of those registered voters who would have been disenfranchised by these measures without Section 5 haven't been voting illegally or inaccurately over the decades. Instead, they've shown up at polling stations, proven who they are to the satisfaction of election officials, and then voted. They already do show ID.

These voter suppression laws also are "ingenious" because they are effectively a poll tax without saying so. A poll tax not only in the sense that they require registered voters to spend money to obtain a new state document they've never before needed, but also in the sense that they require these voters to undertake an effort to do so. The laws divide America into the car-driving faction (who already have a state photo ID) and the non-car-driving faction (who do not). Guess which voting group is more likely than the other to vote against Republicans?

Justice Thomas is right about one thing. In America's voting wars this year there has been no violence, at least not yet. Gone are the marches and the dogs and the fire hoses. Let's hope it stays that way through November 6th, and especially on that day, when some citizens try to stop other citizens from voting. It all depends, I suppose, upon what your definition of voter "intimidation" is. Want to bet Justice Thomas defines it differently than, say, Rep. John Lewis, the Georgia Democrat, battered and bruised icon of the civil rights movement?

In August, a panel of three federal judges relied upon Section 5 to force Florida to better protect the rights of early voters, many of whom are minority voters. That same month, in Texas v. Holder, a panel of three federal judges relied upon Section 5 of the Voting Rights Act to unanimously strike down Texas' restrictive voter identification law. In doing so, the judges noted how poorly Texas lawmakers had acted to provide meaningfully access to state offices where they could procure the new photo identification cards:

Significantly, these burdens will fall most heavily on the poor. Like any fixed cost, the $22 (minimum) EIC applicants will have to pay to obtain prerequisite documentation weighs disproportionately on those living in poverty. Moreover, while a 200 to 250 mile trip to and from a DPS office would be a heavy burden for any prospective voter, such a journey would be especially daunting for the working poor. Poorer citizens, especially those working for hourly wages, will likely be less able to take time off work to travel to a DPS office -- a problem exacerbated by the fact that wait times in DPS offices can be as long as three hours during busy months of the year. This concern is especially serious given that none of Texas's DPS offices are open on weekends or past 6:00 PM, eliminating for many working people the option of obtaining an EIC on their own time.

A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote. The same is true when a law imposes an implicit fee for the privilege of casting a ballot, like the $22 many would-be voters who lack the required underlying documentation will have to pay to obtain an EIC. "[W]ealth or fee paying has . . . no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned." Harper, 383 U.S. at 670. To be sure, a section 5 case cannot turn on wealth alone. In Texas, however, the poor are disproportionately racial minorities. According to undisputed U.S. Census data, the poverty rate in Texas is 25.8% for Hispanics and 23.3% for African Americans, compared to just 8.8% for whites [citations omitted by me].

Then, this week, in South Carolina v. Holder, another panel of federal judges blocked South Carolina's restrictive new voter law from taking effect in this election cycle. The judges, including two Republican appointees, declared that the law could stand in future elections only if local election officials interpreted it in a way which permitted registered voters there to cast a ballot without the state photo identification cards required by the measure. Here is what U.S. District Judge John D. Bates, an appointee of George W. Bush, said about the vital role Section 5 played in ensuring a measure of fairness for South Carolina voters:

Which brings me to my second observation -- one cannot doubt the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina's voter photo ID law certainly would have been more restrictive.

Several legislators have commented that they were seeking to structure a law that could be precleared. See Trial Tr. 104:18-21 (Aug. 28, 2012) (Harrell) ("I was very aware at the time that we were doing this that whatever we would have to do would have to be subject to the Voting Rights Act because that would be the basis for the Department of Justice preclearing the bill for us."); id. at 105:15-18 ("[I] ask[ed] the staff who drafted the bill for me to please make sure that we are passing a bill that will withstand constitutional muster and get through DOJ or through this court."); Trial Tr. 108:23-25 (Aug. 27, 2012) (Campsen) (agreeing that he was "interested in what voter ID legislation had been precleared" in drafting R54); id. at 148:10-15 (discussing senators' statement that "[t]he responsible thing to do was to fix [the bill] so that it would not fail in the courts or get tripped up by the Voting Rights Act"); Trial Tr. 141:9-12 (Aug. 28, 2012) (McConnell) (discussing his efforts on behalf of a bill that "had a better chance of getting preclearance"); id. at 182:18-20 (on the Senate floor "[t]here was discussion about" how "to craft a bill that would comply with the voting rights amendment").

The key ameliorative provisions were added during that legislative process and were shaped by the need for pre-clearance. And the evolving interpretations of these key provisions of Act R54, particularly the reasonable impediment provision, subsequently presented to this Court were driven by South Carolina officials' efforts to satisfy the requirements of the Voting Rights Act.

Congress has recognized the importance of such a deterrent effect. See H.R. Rep. No. 109-478, at 24 (2006) (finding that "Section 5 encourage[s] the legislature to ensure that any voting changes would not have a discriminatory effect on minority voters," and "that the existence of Section 5 deterred covered jurisdictions from even attempting to enact discriminatory voting changes" [internal quotation marks omitted]); S. Rep. No. 109-295, at 11 (2006) (finding "some reason to believe that without the Voting Rights Act's deterrent effect on potential misconduct" racial disparities in voting "might be considerably worse").

The Section 5 process here did not force South Carolina to jump through unnecessary hoops. Rather, the history of Act R54 demonstrates the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.

The legal argument for striking down Section 5 of the Voting Rights Act has always been a dubious one, especially for conservative jurists (like Clarence Thomas) who preach deference to legislative choices except when they disagree with those choices. But now the factual argument for striking down the Act, the argument Justice Thomas infamously made in 2009, has even less evidentiary support than it did when he spoke out. For that, Justice Thomas and his fellow conservatives have only themselves, and their radical new voting laws, to blame.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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