Minority voter suppression is a legitimate threat for midterms

A 2013 Supreme Court decision hamstringing the Voting Rights Act continues to have fallout

Published March 11, 2018 11:00AM (EDT)


With crucial midterm elections coming up later this year, Republicans continue to use a landmark Supreme Court decision on the constitutionality of the Voting Rights Act of 1965 to clamp down on voting rights and access.

John M. Gore, appointed by President Donald Trump as acting head of the Civil Rights division of the U.S. Justice Department, has a history of defending Republican redistricting plans in Virginia, South Carolina, New York and Florida. One of Gore’s first moves in his new role was to drop part of a lawsuit challenging the Texas voter ID requirements that help keep minorities from voting.

Such restrictions have become more common since the Supreme Court struck down a key provision of the Voting Rights Act in the 2013 Shelby County v. Holder decision. Thirty-four states now have voter ID laws.

“We need to deal with the fact that, 52 years after the Voting Rights Act was passed, we’re going backwards,” former North Carolina NAACP President William Barber II said in February, when he and other members of the U.S. Commission on Civil Rights met in Raleigh, as I wrote about previously for DCReport.org, to talk about civil rights enforcement.

Former President Lyndon Johnson signed the Voting Rights Act in 1965. Part of the law, known as Section 5, required states and local governments with histories of keeping African-Americans and other minorities from voting to submit changes in voting law to Washington to be approved.

Fifteen states were covered by Section 5 in whole or in part. Nine of those were Southern states from the former Confederacy: Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Texas and Virginia.

But in 2010, Shelby County attorney Frank “Butch” Ellis filed the case against Eric Holder, the country’s first African-American attorney general, challenging the constitutionality of Section 5 and the formula for it. The lawsuit was funded by Project on Fair Representation, a nonprofit founded by former investment banker and failed Congressional candidate Edward Blum, who is white.

Blum recruited Ellis to challenge the law, after researching cities and counties that had been scrutinized by the Justice Department. The city of Calera, in Shelby County, Alabama, had tangled with the Justice Department after it eliminated the city’s only majority-black district. The African-American councilman who had represented that district was defeated in the next election.

Chief Justice John Roberts wrote in the 5-4 decision that the Voting Rights Act “sharply departs from these basic principles” under the Tenth Amendment that states hold all powers not specifically granted to the federal government. The court found that the formula for determining which states had to submit proposed election laws to the federal government was outdated, based on criteria such as which states once had literacy tests and what the voter registration numbers and turnout were in the 1960s and early 1970s.

Congress “reenacted a formula based on 40-year-old facts having no logical relation to the present day,” Roberts wrote.

In her dissent, Justice Ruth Bader Ginsburg wrote the Supreme Court had “repeatedly encountered the remarkable ‘variety and persistence’ of laws disenfranchising minority citizens.” She noted that the Justice Department estimated that in the five years after the passage of the Voting Rights Act, almost as many blacks registered to vote in Alabama, Mississippi, Georgia, Louisiana, North Carolina and South Carolina as in the entire century before 1965.

“Just as buildings in California have a greater need to be earthquake-proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination,” Ginsburg wrote.

The day of the Shelby County ruling, Texas officials announced they would implement a strict photo ID law that had previously been blocked under the Voting Rights Act. Challenges to that law are ongoing in court.

In North Carolina, supporters of former Gov. Pat McCrory, a Republican, claimed after he lost the 2016 gubernatorial race to Democrat Roy Cooper that convicted felons or people who had already voted had cast ballots. At least 18 people were wrongfully accused of being felons and therefore ineligible to vote.

Legislators in that state replaced what had essentially been a placeholder bill with what critics could come to call a “monster” law that disproportionately affected African-Americans and other minorities.

“Now we can go with the full bill,” Tom Apodaca, then the Republican chairman of the North Carolina state Senate Rules Committee, told reporters after the Shelby ruling.

In July 2016, a three-judge panel of the 4th U.S. Circuit Court of Appeals blocked the North Carolina law, writing that the legislature “target[ed] African Americans with almost surgical precision.” The Supreme Court later refused to hear the case.

Our country’s independent civil rights commission, which helped shape the civil rights legislation of the 1960s, is expected to issue a report this year that could recommend Congress restore provisions similar to Section 5.

“There’s no question that Americans need Congress to restore the VRA,” said Vanita Gupta, the former head of the civil rights division at the U.S. Justice Department.

Congress has tried before to fix a Supreme Court decision that weakened the Voting Rights Act. In 1982, President Ronald Reagan signed a stronger version of the Voting Rights Act. The amended act, supported by Sen. Bob Dole, R-Kan., and other Republicans, was meant to undo a 1980 Supreme Court decision that plaintiffs had to show there was an intent to discriminate.

But the chances of this Congress passing a bill under Trump to strengthen the Civil Rights Act are probably nil. The Voting Rights Advancement Act, S.1419, sponsored by Sen. Patrick Leahy, D-Vt., is bottled up in the Senate Judiciary Committee. The Republican party that once championed renewing the Voting Rights Act in 1982 has morphed into a party where officials insist protections aren’t needed.

Times have changed,” said Hans von Spakovsky, who briefly served on another commission, now disbanded, that Trump set up to investigate bogus claims of voter fraud.

Voting rights cases require much more judicial time and work than most other types of court cases. They are almost twice as cumbersome, for example, as murder trials. They are also ungodly expensive.

A voting rights case in Charleston County cost taxpayers about $2 million to defend. They also had pay more than $712,027 in plaintiffs’ fees and costs. Smaller cities like Calera will find it easier to discriminate against minority voters because of the expense, time and legal knowledge needed to pursue voting rights cases.

“Shelby County has left Americans unable to timely defend themselves against voting discrimination,” said Justin Levitt, a law professor at Loyola Law School in Los Angeles and a former deputy assistant attorney general in the Obama Justice Department. “It’s going to get worse.”

There is fear on the left that the census will be used to depress Democrat turnout in elections after 2020, too. Trump’s Justice Department wants people to be asked about citizenship, a question that hasn’t been asked on the census in seven decades. This could dissuade immigrants who may be afraid of deportation from participating, resulting in Democratic states like California losing representatives the next time districts are redrawn.

“It has been heartbreaking for me to witness the Sessions Justice Department embrace the vote suppression agenda and retreat from that agency’s commitment to aggressive voting rights enforcement,” Gupta said.

By Sarah Okeson

MORE FROM Sarah Okeson