The Entirely Preventable Battles Raging Over Voting Rights

In 2013, Chief Justice John Roberts made a sweeping declaration about the state of voting rights in America. “Our country has changed,” he wrote in his majority opinion in Shelby County v. Holder, “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.”

With those words, Roberts and four other justices on the U.S. Supreme Court struck down a core provision of the Voting Rights Act of 1965, a hammer of a civil-rights law that helped bludgeon recalcitrant states toward multiracial democracy. The majority concluded Congress was relying on out-of-date data when formulating which jurisdictions still had to receive federal approval to change their election laws and policies—a practice known as preclearance that’s meant to block discriminatory measures. Four justices, led by Justice Ruth Bader Ginsburg, denounced the decision in stark terms. “Hubris is a fit word for today’s demolition of the VRA,” she wrote in dissent.

Four years later, a series of lawsuits and legal challenges in states formerly covered by preclearance suggest the country perhaps hasn’t changed as much as Roberts thought. Had the provision, Section 4(b), remained intact, it would have largely forestalled the courtroom battles over election laws that have engulfed multiple Southern states.

The foremost example came earlier this week in Texas, where a federal district court handed the state’s controversial voter ID bill a major defeat in a long-running legal dispute over whether it violates the VRA. The evidence presented to the court “establishes that a discriminatory purpose was at least one of the substantial or motivating factors” behind the bill’s passage, federal judge Nelva Gonzales Ramos wrote in her order in Veasey v. Abbott. “Consequently, the burden shifted to the state to demonstrate that the law would have been enacted without its discriminatory purpose. The state has not met its burden.”

Texas passed Senate Bill 14 in 2011, but the VRA’s preclearance mechanism blocked it from going into effect. The bill’s provisions required voters to show some form of photo ID before they could cast a ballot. Those requirements, according to the groups challenging the bill in court, would have effectively disenfranchised more than a half-million otherwise eligible black and Latino voters who lacked the necessary form of ID. Shortly after the Shelby County decision removed the preclearance hurdle, Texas officials said they planned to begin enforcing it.

In rulings prior to this week’s decision, Ramos’s court had found that Senate Bill 14 had a discriminatory effect for black and Latino voters, and that the state legislature had a discriminatory intent when passing it. The Fifth Circuit Court of Appeals subsequently upheld the discriminatory-effect finding, but said the lower court had relied too heavily on Texas’s history of unjust voter legislation when making the discriminatory-intent finding. The appeals court sent it back to Ramos for further consideration. In her order Monday, however, Ramos said the remaining body of evidence still supported the finding.

The ruling could have major implications for the Lone Star State. Rick Hasen, a University of California, Irvine, law professor who specializes in election law, noted it could pave the way for the court to bring Texas back under preclearance under the VRA’s still-intact “bail-in” provision, which allows federal courts to place jurisdictions under the oversight requirement.

“If (and it is a big ‘if’) the ruling stands through the Fifth Circuit and Supreme Court appeals, it would be grounds for throwing out the entire law (and not just softening it though an affidavit requirement, etc.) and potentially a basis to put the state back under federal supervision for up to 10 years,” he wrote on his blog.

Had the Supreme Court not struck down Section 4(b), the entire showdown wouldn’t have happened. For decades before the ruling, the VRA’s preclearance provision required Arizona, Alaska, and seven former Confederate states—Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—to receive approval from either the U.S. attorney general or the federal district court in Washington, D.C., before altering their election laws or policies. A smattering of cities, counties, and townships in other states were also covered by the preclearance formula.

Congress reauthorized the VRA, including that formula, in 2006 after extensive hearings and with bipartisan support. The Court’s majority ruled, however, that the formula legislators approved didn’t match the realities inside the states. Four of the five justices in the majority declined to decide whether Section 5, the preclearance provision itself, was unconstitutional. (Justice Clarence Thomas wrote separately to say he’d vote to strike it down.) Instead they struck down Section 4(b), which determines which states fall under Section 5. Without the formula, Section 5 effectively becomes inoperative until Congress passes a new one, which it has not done.

Eliminating Section 4(b) gave states a window to change their laws and policies without direct federal interference, and they did. Veasey is one of two lawsuits currently under way in Texas over post-Shelby County changes to voting laws. In January, a federal district court found that Pasadena, Texas, had illegally changed its election laws after the Supreme Court’s ruling to reduce Latino electoral influence by restructuring its city council.

In Alabama, an investigation into former Governor Robert Bentley’s apparent affair with staffer Rebekah Mason also surfaced details about the closure of 31 Department of Motor Vehicles offices in 2015, which deprived multiple predominantly black communities of a place to obtain the photo IDs they need to vote. A former state law-enforcement official told investigators Mason wanted the plan to have a “limited impact on Governor Bentley’s political allies,” and that the official notified the state attorney general’s office he was “concerned about a Voting Rights Act violation.” The state later reversed some of the closures in 2016 under federal pressure.

Other former preclearance states have seen similar battles. Shortly after the Shelby County ruling, North Carolina legislators passed one of the toughest voting laws in the nation. In addition to imposing a voter ID requirement, the bill also curbed early-voting hours, eliminated same-day voter registration, and constrained other registration and voting options. A federal district-court judge upheld the law in a 485-page opinion last April, ruling that the Justice Department and the state NAACP had “failed to show that such disparities will have materially adverse effects on the ability of minority voters to cast a ballot and effectively exercise the electoral franchise.”

But North Carolina’s victory was short-lived. The following July, the Fourth Circuit struck down key portions of the state’s election law on discriminatory-intent grounds. In an emphatic majority opinion, Judge Diana Gribbon Motz wrote that “the new provisions target African Americans with almost surgical precision,” and that state legislators’ concerns about too many black Democratic voters were “what comes as close to a smoking gun as we are likely to see in modern times.” The U.S. Supreme Court declined to stay the ruling in a 4-4 split ahead of the presidential election last year.

North Carolina subsequently asked the Court in December to hear the case in full. The Court hasn’t yet granted or denied the petition for review. But it has just returned to its full strength after the bruising confirmation of Justice Neil Gorsuch. His views on the Voting Rights Act aren’t known in detail, but if he shares the skepticism of the Court’s conservative wing, he and his colleagues could be poised to limit its scope even further. Based on the fallout from Shelby County, that could create even more upheaval when it comes to voting rights.

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