The end of the war on voting?
History will probably remember 2016 for many things, among those will hopefully be that this was the year when the shameful war on voting faltered.
Discriminatory voting laws have recently been invalidated in Michigan, North Carolina, North Dakota, Ohio, Texas and Wisconsin by courts citing Section 2 of the Voting Rights Act (VRA), among other statutes and constitutional law.
After years of voting restrictions since the 2013 Supreme Court ruling striking down key protections of the Voting Rights Act and allowing states to amend voting laws without federal oversight, clear-eyed verdicts are finally coming down the pipeline to protect voters of color. These rulings come after several years of efforts led by Republicans — each law was backed almost exclusively by Republicans — to suppress voting through provisions ranging from onerous voter ID requirements to eliminating early voting and straight-ticket voting intended to restrict voting by African-Americans, Hispanics, Native Americans and other people of color.
The rulings were widely reported and rightly praised by voting rights advocates. But too often these important rulings have been covered as victories in a partisan struggle while the stark evidence of racial discrimination found by the courts has gotten less attention.
Let’s look at the facts about the illegal and unconstitutional discrimination in these laws that led them to be struck down to protect the right of every American to cast their ballot.
In North Carolina, the Republican legislature specifically sought data on usage of voting procedures by race and by age. After determining which were disproportionately utilized by African Americans and younger voters, GOP legislators then voted to restrict all of them while making accommodations for procedures and IDs disproportionately utilized by white voters.
In an opinion that serves as a tour de force for voting rights enforcement, the three-judge panel of the Fourth Circuit Court of Appeals ruled that,
“… intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose… [T]he totality of the circumstances — North Carolina’s history of voting discrimination; the surge in African American voting; the legislature’s knowledge that African Americans voting translated into support for one party; and the swift elimination of the tools African Americans had used to vote and imposition of a new barrier at the first opportunity to do so — cumulatively and unmistakably reveal that the General Assembly used [Shelby] to entrench itself. It did so by targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for partisan ends, that constituted racial discrimination.”
Liz Kennedy, of the Center for American Progress, told CNN that the sweeping decision striking down voting restrictions North Carolina has “been like Christmas Day.”
In Wisconsin, where the Republican legislature passed numerous voting restrictions, two federal courts have struck down portions of both an onerous ID law and other restrictions, including limits upon in-person absentee voting that the court found illegally discriminated against African-Americans in Milwaukee.
A panel of the entire Fifth Circuit in Texas — widely considered the most conservative federal court in the country — not only threw out the state’s highly restrictive ID law base upon its discriminatory impact, but also found evidence of deliberate discrimination by Republican legislators against Hispanic and African-American voters. The finding leaves open the possibility that Texas will eventually be ruled “bailed in” to preclearance requirements under Section 5 of the VRA.
Section 2 of the VRA prohibits voting practices and procedures that are racially discriminatory, and importantly, that the “totality of the circumstance” in local elections had the result of denying minority voters“an equal opportunity to participate in the political process.” The 14th Amendment guarantees every American “equal protection” of the laws.
Federal courts are now consistently finding that the voting laws pushed by conservatives are neatly tailored to deny voters of color equal opportunity and protection. This is what sanctioned racial discrimination looks like in the 21st century.
What are the broader implications of these rulings?
These rulings are clear evidence and precedent that the courts and judges of both parties will robustly enforce Section 2 of the VRA and 14th Amendment protections. Many additional restrictions on voting in the 17 states that have enacted suppression laws since the Shelby decision in 2013 must also be challenged.
Additionally, the full Voting Rights Act must be not only restored, but expanded. The Court’s conservatives invalidated Section 5, allowing states to amend voting laws without federal over sight. The attacks on minority voting rights outside of Section 5 jurisdictions — states such as Michigan, Ohio, Pennsylvania and Wisconsin — show the need for a far more robust framework to ensure changes to voting expand, and not restrict, access to voting for minorities.
The invalidation of Section 5 in covered jurisdictions and the adoption of restrictive laws in other states also meant that voters had to bear the burden of filing and finding lawsuits to protect their basic voting rights. A renewed and strengthened Voting Rights Act would return the burden to states to prove that new laws do not violate citizens’ rights before they can be enforced.
It’s time to end the war on voting. Several states are taking the lead by expanding, not restricting, access to voting. The Brennan Center reports that, over the last two years more states have passed laws to make voting more accessible than to restrict voting. These efforts include passage of universal voter registration, online registration, and expansion of early voting procedures. Importantly, these laws are being passed both in blue states like Oregon and Illinois and red states like Utah and West Virginia.
To end the war on voting, the Republican Party must concede defeat — for its own good and the country’s. In a rapidly changing nation, it’s vital for American democracy that both parties actively compete for the votes of people of color. The GOP will never return to its roots as the Party of Lincoln or truly compete for non-white voters if its leadership continues these schemes to deny people of color their right to vote instead of simply trying to win their votes. Isn’t that how a democracy is supposed to work?