“As close to a smoking gun as we are likely to see in modern times,” was how Fourth Circuit Judge Diana Gribbon Motz described North Carolina’s disputed new voter law, which the court struck down last week on the grounds of discriminatory intent. A ruling in the Fifth Circuit just days before reached a similar conclusion for an analogous law in Texas, acknowledging that the architects of its new voting law were “aware of the likely disproportionate effect of the law on minorities” and still did nothing about them. Just hours after the North Carolina decision, Wisconsin District Court Judge James Peterson joined in with a comparable dismantling of his state’s new voter laws, writing, “Wisconsin’s strict version of voter ID law is a cure worse than the disease.”
These three decisions, written in strong and unambiguous language about discrimination and race, reflect a stunning turn in the battle for the ballot after 2013’s Shelby County v. Holder hamstrung the Voting Rights Act of 1965. While the Supreme Court argued in that case that America had moved beyond its past of open racism and discrimination, the laws in Wisconsin, North Carolina, and Texas, and the judicial decisions about them, are reminders that voting in the United States has always been and still is about the omnipresent issue that has always shaped policy: race.
In his decision, Peterson introduced the story of an elderly black woman, Mrs. Smith, who “was born in the South, barely 50 years after slavery” and simply could not navigate the intricate process of procuring a voter ID. Wisconsin’s ID Petition Process could not link the records of her life to a birth record, so she remained ineligible to vote under its new law that required strict voter ID. That story could be emblematic of any number of older voters of color in states with new restrictive voting laws. Indeed, it is a story akin to that of Rosanell Eaton, a black woman born in 1921 who would have had to “incur significant time and expense” in order to obtain the proper ID to be able to vote in North Carolina—even though she’d been registered to vote since the Jim Crow era. And it is a story similar to that of Alberta Currie, who first voted in 1956. Both of these women became plaintiffs in the legal challenge to North Carolina’s new voter law. All of their experiences are representative examples of a continuous onslaught of electoral racism that has existed since the 14th and 15th Amendments gave newly free black people the nominal right to vote.
Of course, legislators in North Carolina, Texas, and Wisconsin were smart enough to avoid direct tells of the racism woven into their voter-suppression laws. North Carolina’s H.B. 589—passed in 2013 directly after Shelby County v. Holder removed pre-clearance regulations for state and local voting laws—is perhaps the most restrictive: It requires strict voter ID, cuts early voting, eliminates same-day registration, eliminates straight-ticket and out-of precinct voting, enables more observers and direct-vote challenges, and increases local and state campaign contribution limits. Wisconsin’s law was similar and established strict voter-ID requirements, established an ineffectual ID-provision program, severely curtailed early voting, and decreased a residency requirement for voting. Texas’s law was limited to establishing voter-ID requirements. In none of those states or any of the other states that have changed their voting regulations after Shelby County has the official rationale been linked to race or even to diminishing the number of voters.
But the official reasons of protecting against voter fraud and good-governance simply don’t hold up given the history, timing, and legislative processes involved in each bill. North Carolina’s law was perhaps the most blatantly racist, and it was blasted as such by the court. The fact that it was passed immediately after Shelby County effectively ended federal oversight of potentially discriminatory election laws was a brazen, winking challenge to common sense. But court documents show that the timing was the least brazen bit of North Carolina’s maneuvering. Legislators requested data on racial voting patterns—including extensive data on early voting—just before creating reforms that displayed “surgical precision” in their ability to restrict early voting and establish voter ID. The result was not just the kind of racially disparate impact that often accompanies many winking-and-knowing statute-skirting policies, but a racism that was undeniable in both outcome and intent.
The Texas and Wisconsin laws were not quite as bold as North Carolina’s, but in both cases, judges acknowledged that lawmakers knew the effects would be racially inequitable, but they did not do enough to ameliorate those inequitable effects. The Fifth Circuit remanded consideration on whether the actual intent of Texas’s law was discriminatory, but the subtext was clear. Properly ameliorating the discriminatory downstream effects of new voting laws would essentially erase all of their existing meaningful impacts on elections. While useless policy is certainly not unconstitutional, in the case of voting rights laws the intent is betrayed by the consistent failure to address those discriminatory ripples.
If new state voting restrictions occurred in a vacuum of history, perhaps the repeated failure of states to address racial inequality might be written off as simply bad policy. But the facts that they have resurfaced mostly in the Deep South and are continuations of a doctrine of disenfranchisement that first sprang up after Reconstruction are telling. In 1898, North Carolina Democratic Chairman Furnifold Simmons railed against “negro superiority” in the electorate and called on white men to do their duty to resist it. A year later, North Carolina Democrats passed poll tax and “grandfather clause” laws, two carefully crafted regulations that did not run afoul of anti-discrimination laws but certainly had purposeful disenfranchising effects. Compare that with Virginia Senator Carter Glass’s explicit desire to “eliminate the darkey as a political factor in this State” that led to similar laws and felony disenfranchisement, both of which were carefully crafted to not run afoul of anti-discrimination laws. Many of the states that rewrote their constitutions at the end of Reconstruction—all with tightrope-precise language to remain within the letter of the law, of course—to deny black people the right to vote have been at the front of the queue for further voter restrictions in the past five years.
The context of over a century of disenfranchisement is simply unavoidable in considering new voting restrictions, as are the timing after Shelby County and the constant unaddressed racial disparities that arise from each law. The end result of each is a kind of racism that is either known or intended by policy makers. Judges in the three states with the highest-profile restrictions on voting have actively recognized that racism underneath the thin veil of electoral concern and were forceful in denying it. As the defendants in each consider appealing to higher authorities—to the swirling mystery of a deadlocked, short-handed U.S. Supreme Court in Texas and North Carolina’s cases—it looks like the denial of electoral racism in courts is at least one area in which things are changing in the country’s history of race.
People like Judge Peterson’s Mrs. Smith, like Rosanell Eaton and Alberta Currie, have been around to experience firsthand the ravages of Jim Crow and its explicitly vicious denial of humanity from everyone who wasn’t born lucky enough to be white. Voting, with all of its real power, has always been a talisman of the acceptance or denial of humanity. In their stories, history must seem hell-bent on repeating itself in removing that humanity, but at least a few courts now stand in the way.