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 legislatures.
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.
Back in 2009, the court considered whether to strike down Congress’ renewal of the rule requiring jurisdictions with a history of racial discrimination in voting to get federal approval before making changes in their voting laws. The feds had to withhold approval unless the covered jurisdictions demonstrated the law would not make minority voters worse off and was not motivated by an intention to do so.
During oral arguments in that 2009 case (which ultimately ducked the constitutional question), Chief Justice Roberts judged the law unnecessary, analogizing the federal approval requirement to an “elephant whistle.” “You know, I have this whistle to keep away the elephants. You know, well, that’s silly. Well, there are no elephants, so it must work.”
Similarly, during arguments in the Shelby County case, Justice Kennedy opined that other provisions of the Voting Rights Act, especially Section 2, would still protect minority voters. The Shelby County opinion itself declared that “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2.”
Congress, of course, had made a different judgment about the continuing deterrent effect of the need to obtain federal preclearance, and Justice Ginsburg’s dissent in Shelby County analogized chucking the preclearance regime to “throwing away your umbrella in a rainstorm because you are not getting wet.” In a sense, the empirical question can be said to be whether the elephant whistle was never necessary; or the umbrella was working the whole time. It took only months to ascertain that the umbrella was probably working.
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 elections.”
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. Dave Weigel and Ari Berman have been considering whether there will be enough political backlash to overcome these North Carolina shenanigans. But thanks to these very laws, it will take a lot of effort to get people to the polls casting valid votes to go against the laws. And that’s part of the point.
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 corner.
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