Posted by AzBlueMeanie:
Professor Richard L.
Hasen is Chancellor’s Professor of Law and Political Science at the
University of California, Irvine. Hasen is a nationally recognized
expert in election law and campaign finance regulation, and is co-author
of a leading casebook on election law. He is editor of the Election Law Blog.
Hasen writes at Slate today that "North Carolina’s new voter suppression law shows why the Voting Rights Act is still necessary." Supreme Error:
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 Carolina the 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
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.
* * *
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
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,
the other part of the Voting Rights Act that Justice Kennedy touted as a
good substitute for the end of preclearance: there hasn’t been a
successful Section 2 challenge to voter id laws, and outside of
redistricting cases the courts have read Section 2 very narrowly. And
the chances are slim
that the Department of Justice can prove enough intentional
discrimination by North Carolina to get it “bailed in” to preclearance
under another provision of the Voting Rights Act.
To be sure, some of these provisions likely will be found to violate the Constitution. Students have a constitutional right to register and vote where they go to school. The 6th Circuit
has held that it is unconstitutional for Ohio to disenfranchise voters
casting provisional ballots if they were sent to the wrong precinct
because of voter error. A few other provisions are likely to fall too,
maybe in state courts under the state constitution.
But the main fight over these laws is going to have to be political, not legal. . .
It’s enough to make one wonder whether the Justices in the Shelby County majority actually thought minority voters would still have effective tools to
fight discrimination after the Justices struck Section 5, or if they
suspected all along that a stampede of elephants was right around the
There is no wonder. The conservative activist Roberts Court knew exactly what evil it would unleash with its Shelby County decision. They are all old enough to have lived in the pre-Voting Rights Act era of state-sanctioned segregation in America.