Opinion

One Year After Shelby Decision, States Have Moved to Restrict Voter Access

Lawyers head to court Monday to seek an injunction against North Carolina’s voter-suppression law, currently the harshest in the country.

Penda D. Hair is Co-Director of Advancement Project, a Washington, D.C.-based racial justice group working at the community level to protect voting rights across the country.  
National Journal
Penda D. Hair
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Penda D. Hair
July 7, 2014, 6:57 a.m.

One year ago, the Su­preme Court opened the floodgates for state le­gis­latures to re­strict vot­ing ac­cess. In Shelby County v. Hold­er, the Court struck down the for­mula for Sec­tion 5 of the Vot­ing Rights Act — a vi­tal pro­vi­sion that, for nearly 50 years, re­quired fed­er­al pre­approv­al of vot­ing changes in jur­is­dic­tions with a his­tory of dis­crim­in­at­ory prac­tices. These were mostly in the South, where the greatest battles of the vot­ing-rights move­ment were played out dur­ing the 1964 Free­dom Sum­mer. Em­boldened by the Shelby de­cision, and left with no fed­er­al over­sight, state after state has im­ple­men­ted, passed, or pro­posed dis­crim­in­at­ory bills that re­strict ac­cess to the bal­lot.

These policies in­clude stricter voter-iden­ti­fic­a­tion laws, cuts to early vot­ing, bans on same-day re­gis­tra­tion, voter-roll purges, and “show me your pa­pers” laws re­quir­ing proof of cit­izen­ship in or­der to re­gister. They have passed both in the states that were pre­vi­ously covered by Sec­tion 5 pre­clear­ance, as well as states that fell out­side of the VRA cov­er­age for­mula. Many of these reg­u­la­tions dis­par­ately af­fect com­munit­ies of col­or, the eld­erly, stu­dents, and low-in­come cit­izens.

Just weeks after the Shelby rul­ing, for ex­ample, North Car­o­lina gained the no­tori­ous dis­tinc­tion of passing the worst voter-sup­pres­sion law in the coun­try. Im­me­di­ately after it was signed in­to law, Ad­vance­ment Pro­ject — the or­gan­iz­a­tion for which I serve as co­dir­ect­or — brought a suit in fed­er­al court chal­len­ging the law on be­half of the North Car­o­lina NAACP. In light of the ava­lanche of pro­vi­sions de­signed to re­strict vot­ing, we had to fight back.

That North Car­o­lina law not only re­quires strin­gent forms of photo iden­ti­fic­a­tion be­fore North Car­olini­ans can gain ac­cess to the bal­lot, it also shortens the early vot­ing peri­od by a full week, ends out-of-pre­cinct vot­ing for statewide races, and ter­min­ates same-day re­gis­tra­tion and preregis­tra­tion of 16 and 17 year olds. Each of these meas­ures had formerly ex­pan­ded the par­ti­cip­a­tion of voters of col­or. For ex­ample, 70 per­cent of Afric­an-Amer­ic­an voters who voted in 2012 used early vot­ing.

Ad­vance­ment Pro­ject law­yers will be in fed­er­al court in North Car­o­lina on today to ask for a rul­ing tem­por­ar­ily block­ing North Car­o­lina’s blatant at­tempts to lim­it the in­flu­ence of voters of col­or in the up­com­ing elec­tions. We’ll ar­gue that North Car­o­lina’s harsh voter law is in­ten­tion­ally and dis­pro­por­tion­ately bur­den­some for Afric­an-Amer­ic­an and Latino voters, in vi­ol­a­tion of Sec­tion 2 of the VRA, as well as the 14thand 15thAmend­ments of the Con­sti­tu­tion.

Be­cause the case doesn’t go to full tri­al un­til 2015, an in­junc­tion is ne­ces­sary to pre­vent the dis­en­fran­chise­ment of hun­dreds of thou­sands of North Car­o­lina voters in the 2014 midterm elec­tions — which could be cru­cial in pre­vent­ing the pas­sage of even more dev­ast­at­ing policies in the state. State le­gis­lat­ors didn’t stop at ser­i­ously re­strict­ing the right to vote in North Car­o­lina. They also gut­ted pub­lic edu­ca­tion, changed tax policy to re­ward mil­lion­aires while hurt­ing work­ing fam­il­ies, cut un­em­ploy­ment be­ne­fits, and re­fused to ex­pand Medi­care for North Car­o­lina’s work­ing poor. Without a full elect­or­ate, voters in the state have little chance of over­turn­ing these policies.

While North Car­o­lina’s law is the gold stand­ard for le­gis­lat­ors who want to cherry-pick their con­stitu­ents, oth­er South­ern states have joined them in the voter-sup­pres­sion race.

In Alabama, law­makers are for­ging ahead with plans to re­quire doc­u­ment­ary proof of cit­izen­ship, such as a cer­ti­fied birth cer­ti­fic­ate, an un­ex­pired pass­port, or nat­ur­al­iz­a­tion pa­pers, to re­gister to vote. Texas has already im­ple­men­ted its voter ID law — the same law that, in 2012 un­der pre­vi­ous VRA pre­clear­ance rules, the Justice De­part­ment had struck down for be­ing ra­cially dis­crim­in­at­ory. Next month, Vir­gin­ia voters will be newly re­quired to present lim­ited forms of photo ID in or­der to cast a bal­lot. Last month, Alabama and Mis­sis­sippi also im­ple­men­ted new photo ID laws.

All of these states were pre­vi­ously covered un­der the um­brella of pro­tec­tion of Sec­tion 5. Even where the blood­i­est his­tor­ic re­pres­sion of Afric­an-Amer­ic­an vot­ing rights oc­curred, new pro­ced­ures with dis­crim­in­at­ory im­pact are be­ing en­acted without any fed­er­al over­sight.

As new vot­ing reg­u­la­tions crop up and im­pose stag­ger­ing bar­ri­ers to the bal­lot, there have also been suc­cesses in the fight for equal vot­ing rights. Be­ing gran­ted a tem­por­ary in­junc­tion hear­ing in North Car­o­lina is the first step to pro­tect vot­ing rights in the state. This April, after Ad­vance­ment Pro­ject and cocoun­sel chal­lenged Wis­con­sin’s pro­hib­it­ive photo ID law, the meas­ure was struck down in fed­er­al court. Earli­er this year, a Pennsylvania court struck down that state’s photo ID law. A photo ID bal­lot ini­ti­at­ive was di­ver­ted in Nevada, while a Mis­souri amend­ment to im­ple­ment stricter voter ID re­quire­ments died in the Sen­ate.

Throughout the South, where Sec­tion 5 used to pro­tect voters of col­or, lit­ig­a­tion is on­go­ing. While it is worth not­ing these vic­tor­ies, without Sec­tion 5 pro­tec­tion, voters of col­or re­main vul­ner­able to state-level tac­tics to dis­en­fran­chise. And without in­junc­tions like the one we’re seek­ing in North Car­o­lina, pro­trac­ted leg­al battles come with the risk that on-the-ground con­sequences can crop up as cases are be­ing heard, lead­ing to dis­en­fran­chise­ment for hun­dreds of thou­sands of voters.

In a na­tion that prides it­self as a lead­ing demo­cracy, ef­forts to lim­it the vote are fun­da­ment­ally an­ti­thet­ic­al to our val­ues. Vot­ing is the one time when all Amer­ic­ans have an equal op­por­tun­ity to be heard, wheth­er you’re young or old; rich or poor; black, white, Latino, Asi­an, or Nat­ive Amer­ic­an. It’s a right that people fought for 50 years ago, in some cases even giv­ing their lives. Still today, we will keep on fight­ing to en­sure equal bal­lot ac­cess for all.

Penda D. Hair is co­dir­ect­or of Ad­vance­ment Pro­ject, a Wash­ing­ton-based ra­cial-justice group work­ing at the com­munity level to pro­tect vot­ing rights across the coun­try.

HAVE AN OPIN­ION ON POLICY AND CHAN­GING DEMO­GRAPH­ICS?The Next Amer­ica wel­comes op-ed pieces that ex­plore the polit­ic­al, eco­nom­ic, and so­cial im­pacts of the pro­found ra­cial and cul­tur­al changes fa­cing our na­tion, par­tic­u­larly rel­ev­ant to edu­ca­tion, eco­nomy, the work­force and health. In­ter­ested in sub­mit­ting a piece? Email Jan­ell Ross at jross@na­tion­al­journ­al.com with a brief de­scrip­tion of your idea. Please fol­low us on Twit­ter and Face­book.

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