By Cory Herro
In Shelby County v. Holder, the Supreme Court determined that Section 4 and, subsequently Section 5, of the Voting Rights Act of 1965 insufficiently relates to voter discrimination in 2015. The Alabama County argued that the federal government cannot enforce matters differently between states. In the same vein, Chief Justice Roberts argued for the pertinence of the “fundamental principle of sovereignty” among the States. In accordance with the 10th and 15th amendments, federal oversight rooted in a fifty-year-old formula and impressions of counties is unnecessary. Policymakers should either develop a more appropriate approach to protecting minority voters or allow the states to practice their sovereignty in enforcing voter ID laws, and it seems the Supreme Court is calling for the former while accepting the latter.
I agree with Cory. The decision in Shelby County v. Holder is ushering in a new era, but we should not be so quick to label the majority opinion as misguided trust toward Republican states. The Supreme Court essentially stated that the Department of Justice should not be allowed to oversee state and local governments with a fifty-year-old “coverage formula.” A coverage formula, outlined in Section 4 of the VRA, supplies conditions for the Department of Justice to oversee potentially restrictive voter laws.
Preclearance proceedings, which are necessary for covered governments to enact voter legislation, places the burden of proof on the supplicant jurisdiction and applies standards differently from other states that could put a similar law into effect immediately. Preclearance was meant to only last five years and address the conditions in 1965, not contemporary conditions. A majority of the Supreme Court, specifically Chief Justice Roberts, is challenging Congress to pass a more modern formula that speaks to “current conditions of racial discrimination in voting.” The Opinion of the Court explains avenues for people still affected by voting rule changes, as they can still sue under Section 2 of the act. Section 2 resolutely outlaws racial discrimination in voting. Justice Ginsburg makes several excellent points in her dissent, especially regarding the evolution of voting discrimination. She argues that a “remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.” A remedy as effective as preclearance does not have to be outdated coverage formulas or preclearance, itself, as neither addresses subtle second-generation barriers.
Cory brings up a second agreeable point: that there are still close electoral races. Such tight races express the value in determining that the people who should not vote are not voting. Regarding voter ID laws, 74 percent of respondents in a 2012 Washington Post poll said that voters should be required to show a government ID when casting a ballot. 70 percent of those responding in a 2014 Fox News Poll and 78 percent of those responding in a 2015 Rasmussen Reports survey support showing a government ID when voting. Although voter fraud is largely considered a myth, Americans have expressed respect for the concept that only citizens should be allowed to vote in elections. Even in Texas, a person can vote without an ID by obtaining an Election Identification Certificate at hundreds of locations.
Lastly, and most importantly, there is little disparity in the registration and turnout of black voters compared to white voters. The legislative intent of the Voting Rights Act in 1965 was to address barriers that black voters faced. Now, several Southern states have higher black turnout rates than white turnout rates. Many of these counties would not be covered today based on current registration and turnout levels. The systematic, official discrimination that bolstered Section 5 has significantly decreased. As Justice Clarence Thomas stated in the Court Opinion, “[a]dmitting that a prophylactic law as broad as Section 5 is no longer constitutionally justified based on current evidence …is not a sign of defeat. It is an acknowledgment of victory.”
Article Four, Section Four of the Constitution guarantees the procedural right of self-government for each State. The obstacles minority voters face today have developed, and an improved coverage formula is appropriate. Until a new coverage formula is approved, the States should be allowed to govern themselves.
Contact James Stephens at james214 ‘at’ stanford.edu.
Following the Paris attacks, just about everything that came out of top Republican presidential candidates’ mouths was horrifying. Jeb Bush and Ted Cruz called for a ban on Muslim Syrian refugees while Donald Trump fabricated recollections of Muslims cheering in New Jersey on 9/11. To punctuate the week, Trump supporters beat up a Black Lives Matter activist, to which Trump reacted, “Maybe he should have been roughed up.” It was another incident to add to the list, next to Trump supporters yelling, “Illegals go home!” at Latino activists outside his rally in Dallas.
There’s a disturbing strain of white, Christian exclusivity in the Republican Party right now, one that recalls the Know-Nothing nativism of the 1840s and the literacy tests of the Jim Crow South. It’s present not only among Trump supporters, but as the business model of a party that passes restrictive voter ID laws. Before 2013 the Voting Rights Act (VRA) protected minority voters in Republican states from discrimination, but since the Supreme Court invalidated Section 4 of the Act, minority voters are vulnerable to disenfranchisement. As primaries approach and candidates discuss whom to exclude from the country, let’s support legislation to make sure no American is excluded from the voting process.
We need to update the VRA because the literacy tests of the Jim Crow era, designed to disenfranchise black voters, have been replaced with restrictive voter laws like early voting cuts, repeals of same-day voter registration, and voter ID laws. These voter laws are an attempt to disenfranchise minorities and the poor, who are most likely to take advantage of early voting and same-day registration and least likely to have a government-issued ID.
Take the example of Texas, which moved to pass its restrictive voter ID law the very same day the VRA was struck down, making MLK roll over in his grave and the Court majority look foolish for trusting Republican states not to discriminate.
Texas’s voter ID law could force about 700,000 Texas residents to procure a driver’s license or personal identification card. Hispanics will suffer the most in Texas, as a Hispanic registered voter is between 50 and 120 percent more likely than a non-Hispanic registered voter to lack a government-issued ID. Texas legislators insist that this is not a problem because these citizens can get the necessary government documents for free. However, distance from state ID-issuing offices, lack of transportation, and narrow scheduling windows are difficult impediments for these residents to overcome. These impediments are also expensive, usually ranging from about $75 to $175, according to one Harvard Law research paper.
These expenses usually take effect when a voter lives 10 or more miles from their nearest state ID-issuing office. The Brennan Center estimates that in the 10 states with restrictive voter ID laws, 10 million eligible voters fit this category, one million of whom fall below the poverty line, and half a million of whom have no car. Voter ID supporters may cite hundreds of instances of fraud, but these restrictions on voting risk disenfranchising millions of eligible voters.
Following Texas’s example — North Carolina, Alabama, and Mississippi also moved forward with voter ID laws shortly after the ruling. It was a loud rejection of the Court’s claim that “things have changed dramatically.”
We are dealing with potential disenfranchisement of significant numbers. Consider that in the 2014 North Carolina Senate race Republican Thom Tillis beat Democratic Senator Kay Hagen by a margin of 1.7 percent — about 48,000 votes. The year before North Carolina had passed a restrictive voter ID law that affected 300,000 voters who lacked ID. That same year North Carolina cut early voting days on which 100,000 citizens had voted.
Troublingly, North Carolina is not a unique case. Florida’s latest gubernatorial race was decided by about 66,000 votes, Kansas’s gubernatorial race by about 33,000 votes, and Virginia’s senatorial race by about 12,000 votes. Each of these states has restrictive voter laws. To dismiss the possibility that voter restrictions may be deciding elections would be to dismiss these very narrow margins of victory.
The Shelby County Court majority held racial parity of voting registration rates as the mark of a new era in which federal oversight over states with a history of discrimination was not needed. Shelby County has marked a new era indeed, but it’s an era that requires more oversight of some states, not less.
Contact Cory Herro at cherro ‘at’ stanford.edu.