Cross-posted from The American Constitution Society’s ACSblog.
As many have already noted, this year will be the first presidential election without the full protections of the Voting Rights Act (VRA). In the absence of some of the VRA’s key provisions, particularly Section 5, voting rights advocates have engaged in lengthy lawsuits across the country to contest some of the most egregious offenders of federal election laws and the Constitution.
Last week alone, courts struck at the heart of state laws diluting the franchise in three different states – North Carolina, Texas, and Wisconsin. All three required a photo ID before casting a ballot. In each case, these laws were challenged under the equal protection clause of the Fourteenth Amendment, the Fifteenth Amendment, and Section 2 of the VRA. The Supreme Court requires that “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). Violations of Section 2 of the VRA can be established without showing discriminatory intent so long as plaintiffs show that the law has a discriminatory effect. Thornburg v. Gingles, 478 U.S. 30, 62 (1986).
In the Texas case, while the Fifth Circuit found the Texas law had discriminatory impact, it nonetheless remanded to the lower court for a reevaluation of whether the law had discriminatory intent based on new criteria (the lower court had already found discriminatory intent after trial). Similarly, in Wisconsin, the district court initially held that the law violated both the Fourteenth Amendment and Section 2 of the VRA, but the Seventh Circuit reversed. Last week, on remand, the district court held that the state must allow voters who cannot obtain appropriate photo ID through reasonable efforts to cast a ballot with an affidavit. But in North Carolina, the Fourth Circuit however went much further, finding that the state legislature intended to discriminate against African American voters in violation of both the Fourteenth Amendment and Section 2 of the VRA.
As such, the Fourth Circuit’s opinion in United States v. North Carolina is worthy of closer examination.
Prior to the Supreme Court’s 5-4 decision in Shelby County, North Carolina was an exemplar of the goals envisioned by the VRA; as the Fourth Circuit noted, “by 2013 African American registration and turnout rates had finally reached near-parity with white registration and turnout rates. African Americans were poised to act as a major electoral force.” Unfettered by pre-clearance requirements, the North Carolina legislature jammed through an “omnibus” legislation that discriminated against “African Americans with almost surgical precision” as follows:
- Photo ID was required for in-person voting, but not for absentee voting, which was used disproportionately more by white voters.
- Early voting was drastically reduced and cut those times African Americans were likely to utilize such as “one of two ‘souls-to-the-polls’ Sundays in which African American churches provided transportation to voters.”
- Elimination of same day registration because it helped African Americans who moved frequently and had disproportionately more incomplete voter registrations.
- Elimination of out-of-precinct voting required registered voters to cast provisional ballots.
- Elimination of pre-registration of 16- and 17-year-olds because it helped young and African American voters turn out.
The Fourth Circuit held that the North Carolina legislature has a history of diluting and restricting the African American vote since the 1980s, which was curtailed only by enforcement of Section 5 and Section 2 of the VRA; as such the district court was clearly erroneous in failing to link that historical evidence to the current legislation. According to the district court, laws such as same day registration, early voting and pre-registration were enacted “relatively recently” by Democrats courting African American voters and so there was no discriminatory intent by the heavily Republican North Carolina legislature, only “politics as usual.” The Fourth Circuit reversed, stating “[w]e recognize that elections have consequences, but winning an election does not empower anyone in any party to engage in purposeful racial discrimination.”
This election will be held under the specter of stricter voting laws and fewer protections for many voters across the country. Changes to election laws and the ensuing litigation in these states (as well as others that have yet to reach positive court outcomes) demonstrate that three years after Shelby County, attacks on the right to vote have been renewed with success. Even the positive outcomes in these cases come after years of litigation and then also, in the case of Wisconsin, seem modest. Exacerbating post-Shelby County problems, this year, federal observers from the Department of Justice will only be sent to five states for the general election and is one of the smallest deployments of federal observers in an election since the passage of the VRA. It is past time for Congress to pass the Voting Rights Advancement Act restoring protections to voters and ensure their right to franchise.
