Tuesday's Supreme Court ruling in Shelby County v. Holder effectively cripples the Voting Rights Act. It flies in the face of a mountain of evidence of ongoing disenfranchisement -- from voter-ID laws to intimidation and long lines at the polls - and the fact that Republican legislators continue to push laws designed to disenfranchise targeted communities. The conservative majority's tortured logic relied on statistical evidence of reduced inequities between whites and minorities in voter-registration rates, but as Justice Ruth Bader Ginsburg noted in her dissent, voting discrimination has declined because of the effectiveness of the Voting Rights Acts. Without these protections to derail attempts to roll back the clock, new setbacks are inevitable. But, as has been said before of the Roberts Court, "Five votes beats a reason any day."
So the question is what the heck do those who care about equality and democracy do now? Waiting to fill an appointment until certain justices kick the bucket or decide to retire doesn't seem like a good strategy. And it's hard to imagine the current Congress leaping to fix Section 4 of the law, as Chief Justice John Roberts suggested. Fortunately, there are quicker and more promising remedial paths to follow.
The most encouraging option for voting-rights advocates to pursue is automatic voter registration (sometimes known as universal voter registration). Nearly a quarter of eligible voters -- at least 51 million Americans -- are not registered, according to a recent study from the Pew Center on the States. The norm in established democracies around the world is to register all citizens automatically when they reach the age of eligibility. There are no forms to fill out or lines to stand in; eligible voters are simply assigned a unique identifier, like a Social Security number, that follows them for life. When the government takes responsibility for achieving 100 percent registration, there are no partisan battles over who is or is not registered, and registration status is removed from the contested terrain of politics. Conservatives who are genuinely concerned about reducing voter fraud should support universal registration, since the Pew Center study found that it would resolve approximately 24 million inaccurate registrations.
The voting-rights angle here is that the ranks of those 51 million "unregistered eligibles" are filled disproportionately with racial minorities, the poor, and the young. So by enacting automatic voter registration, the country would add far more minority citizens to voter rolls than will ever be disenfranchised by whatever results from Shelby County. If the ruling provides some momentum for such reform efforts, we will have made some lemonade from the lemons.
But naturally the partisans will look at this through a different lens. Since enacting automatic voter registration would enfranchise millions of minority and young voters -- who are strongly inclined to vote Democratic -- Republicans will oppose it. Certainly House Speaker John Boehner is unlikely to let a bill for automatic voter registration get out of any committee.
But the reform actually can be passed on a state-by-state basis through state legislatures. In fact, there are about a dozen states, including California, Massachusetts, Washington, and Illinois, where Democrats have won the trifecta -- they control the governor's seat as well as both houses of the state legislature. In these states, there aren't enough obstructionist Republicans to halt these efforts. When I directed the Political Reform Program at the New America Foundation, we sponsored a bill in the California legislature to enact automatic voter registration. Not surprisingly, the Republican caucus fiercely opposed it. But even more disappointingly, Democrats -- including the usually progressive secretary of state -- failed to embrace it.
This is tragic, because automatic voter registration is a great tonic to voter-ID laws, which Democrats and civil-rights leaders have fought doggedly. If voter IDs were coupled with a unique identifier for every eligible voter, they could be used to implement automatic voter registration. That would turn voter-ID laws on their head, registering to vote millions of minorities and youth -- far more than the number who are likely to stay home for lack of a voter ID. This idea was endorsed by the 2006 Commission on Federal Election Reform, co-chaired by former President Jimmy Carter and GOP uber-consigliere James Baker III.
It's one of the great political mysteries that Democrats haven't already passed automatic voter registration in many of these trifecta states. Not only would it be the right thing to do, but it would also be in their best interest. These states would become models for others -- and even for the federal government, in case Congress ever emerges from the quicksand. But Democrats are stuck, too.
Other reforms that might help mitigate the damage done to the Voting Rights Act include guaranteed early voting and laws improving absentee and provisional ballot procedures. Election-day voter registration has been used successfully in some states as well. Again, all of those changes can be enacted at the state level. In addition, if minority leaders and Democrats really wished to grapple with the contradictions inherent in the Voting Rights Act, particularly in how it has helped elect more Republicans and made it more difficult for Democrats to retake the U.S. House (as I detailed in my previous Atlantic article, "How the Voting Rights Act Hurts Democrats and Minorities"), they should begin experimenting with systems of proportional representation and moving away from the single-seat district system which hurts geographically-concentrated constituencies like urban liberals and Democrats.
So especially in these trifecta states, voting rights advocates and minority leaders have it within their power to begin playing offense instead of defense. And the only obstacle is -- Democrats.