Can Democracy Survive Voter Suppression Laws and Flood of “Big Money” into Election Coffers? (Part 1)
By Carolyn Burstein
August 12, 2014
It sometimes seems like our once-brave experiment with democracy is today under siege with the proliferation of voter suppression laws being passed by states and localities and the Supreme Court upholding near-unbridled use of money in elections, which has eviscerated campaign reform efforts. But this is neither the first nor last time we must choose democracy and social justice over discrimination and plutocracy. Fortunately, thousands of individuals and groups have joined to wage this struggle.
This blog will be the first of two. Today’s will focus on the first problem — the gutting of the Voting Rights Act (VRA) of 1965 in the Supreme Court decision Shelby County, Alabama v. Holder (Shelby, for short) handed down in June 2013. Last week (August 6) we celebrated the 49th anniversary of that significant day. The next blog will concern the issue of “big money” in the upcoming mid-term elections of 2014.
Let’s start with the Voting Rights Act of 1965, a landmark piece of legislation that enshrines the key principles of fair voting rights so important in a democracy. Designed to enforce the voting rights guaranteed by the fourteenth and fifteenth amendments to the Constitution, the VRA prohibits any state or local government from imposing laws that result in discrimination against racial or language minorities. Until recently, the law enjoyed widespread bipartisan support in Congress and was reauthorized four times, most recently in 2006. Just one telling statistic from an article by Debbie Wasserman-Schultz (D-FL) in the August 6, 2014 issue of The Root demonstrates how significant the VRA is: only 6.7% of eligible Black Mississippians were registered to vote in 1962; by 1969 that figure jumped to 66.5%.
The Brennan Center for Justice calls the VRA “a uniquely effective law” that blocked 86 legislative discriminatory actions through its administrative process and several more through litigation just from 1998 to 2013.
This state of affairs changed dramatically in June 2013 when the Supreme Court ruled in Shelby that a key enforcement provision in the VRA (Section 5) was unconstitutional. This provision, known as the “coverage formula,” encompassed those jurisdictions that had engaged in the most egregious voting discrimination in 1965. The Court reasoned that Section 5 was no longer responsive to current conditions.
Even before Shelby, the laws and practices included in the VRA were under attack, but the VRA enabled the federal government to deal forcefully with the state or locality. The Advancement Project, a civil rights organization that has filed and handled many lawsuits against offending jurisdictions, maintains that an unprecedented campaign to suppress voting among students, minorities, immigrants, ex-felons and the elderly has occurred in the past few years, especially since 2010. For example, repeated attempts have been made to purge voter databases with the intent of disenfranchising certain voters.
Indeed, the Advancement Project was correct. An investigative report by the Center for American Progress (CAP) uncovered the presence of a systematic campaign that was orchestrated particularly since the mid-term election of 2010, funded largely by David and Charles Koch through the American Legislative Exchange Council (ALEC). In 2011 alone, 38 states introduced legislation designed to impede voters at every step of the electoral process.
While many of these efforts are longstanding, in the one year since Shelby, the Brennan Center for Justice has discerned three major impacts of the Supreme Court decision:
- Section 5 (the key enforcement provision) no longer blocks discriminatory voting practices, which have reached epidemic proportions
- Challenging discriminatory laws and practices is now more difficult, expensive and time-consuming
- The public now lacks critical information about voting that Section 5 had made mandatory prior to changing any voting laws or practices
The first impact identified by the Brennan Center receives the most commentary because it focuses on the extensive discrimination in all voter-suppression efforts. The Leadership Conference on Civil and Human Rights issued a report in June 2014 entitled “The Persistent Challenge of Voting Discrimination.” The new report details 148 separate instances of racial discrimination in voting since 2000. Each activity might impact tens of thousands of voters and, as large as these numbers might be, they undoubtedly underestimate the dire situation because the numbers represent only reported and documented cases. Some key findings of the report include:
- Racial discrimination in voting remains a significant problem in our democracy.
- The problem of racial discrimination in voting is not limited to one region of the country.
- Voting discrimination occurs most often in local elections.
- Discrimination in voting manifests itself in many ways, and new methods continue to emerge.
Since the Shelby decision, voter suppression laws have been unleashed throughout the country, including polling place closures, discriminatory voter ID laws, new restrictions on early voting, and the elimination of majority-black and -Latino districts for local elections. These discriminatory practices have come to light in several states including Texas, Alabama, Georgia, Florida, Mississippi, Virginia and North Carolina. In 2014 alone, according to the National Conference of State Legislators (NCSL), voter ID legislation was introduced in 24 states. NCSL says that 11 states have strict voter ID laws – 8 with strict photo ID laws and 3 with strict non-photo ID laws. Twenty states have less strict voter-ID laws. The remaining 19 states currently require no documentation to vote.
With respect to photo-ID laws, CAP reports that 11% of American citizens, but 25% of African-Americans, do not possess a government-issued photo ID (over 21 million people), and three of the photo-ID bills to have passed – in South Carolina, Texas and Tennessee – expressly do not allow students to use photo IDs issued by state educational institutions to vote. The Brennan Center for Justice says that Mississippi plans to enforce its photo-ID law in this next election cycle, despite the fact that 35% of the state’s voting-age population lives more than 10 miles from the nearest office that issues photo IDs and 13 contiguous counties with sizable African-American populations lack a single full-time driver’s license office.
An often overlooked feature of the VRA that helped ensure enfranchisement of minority voters was the deployment of federal observers. To ensure fair elections from 1995 to 2012, more than 10,700 federal observers were sent to polls in the states and localities covered by Section 5. Without these observers, voters are much more vulnerable to discrimination.
A report issued by the National Commission on Voting Rights last week said that jurisdictions previously covered under parts of the Voting Rights Act that the Supreme Court eliminated, “continue to implement voting laws and procedures that disproportionately affect African-American, Latino, Asian and Native-American voters.”
Without a doubt, the most restrictive voter suppression laws were passed in the state of North Carolina – a strict photo-ID requirement, a drastic cut-back on early voting, a reduction in the period for voter registration, and an inability for a ballot to be deemed “provisional” if cast in the wrong precinct. Nearly all are being challenged by the North Carolina NAACP, the Advancement Project. and the League of Women Voters.
It’s exceedingly difficult to deny that voter suppression laws are politically motivated because a major probe by the Justice Department between 2002 and 2007 failed to prosecute a single person for going to the polls and impersonating an eligible voter. Out of the 300 million votes cast during that period, only 86 people were convicted of voter fraud, and nearly all of these cases involved immigrants and former felons who were simply unaware of their ineligibility. Since these findings are fairly well-known, one has to conclude that governors who are signing new voting restrictions have solutions that are searching for a problem.
As former President Bill Clinton said in 2012, “There has never been in my lifetime, since we got rid of the poll tax and all the Jim Crow burdens on voting, the determined effort to limit the franchise that we see today.”
Section 5’s loss will be felt most acutely at the local level, which was the focus of most discriminatory changes under the VRA. The Brennan Center for Justice indicates that 10 of the 15 states that had been covered in whole or in part by Section 5 had introduced new restrictive legislation that would make it more difficult for minority voters to cast a ballot. Many of these restrictions involved redrawing of district boundaries to impede minority (sometimes African-American, sometimes Latino) participation in local elections.
The second effect of the Shelby ruling is to make challenging discriminatory voting laws more difficult, expensive and time-consuming. When Section 5 was still in effect, the VRA enabled prior federal review to ensure nondiscrimination before any new voting law went into effect. That meant that the vast majority of actions were accomplished through an administrative process that was cheaper, faster and easier than litigation. An administrative process is no longer an option. Parties who challenge discriminatory laws can only do so ex post facto and face lengthy court filings, motions, notices and briefs, both large and small, all of which add to the time and expense of the litigants. And this is true even when lawsuits are consolidated, as they have been in a number of jurisdictions.
The third impact of the Shelby decision is a lack of transparency for thousands of election laws. Formerly, Section 5 required any change to a voting law or practice to include input from the public, during the review or practice of the law as well as during court litigation, if any. There was also a centralized method for monitoring any changes before they were implemented and a notification process after implementation. Since all of this is gone, thousands of changes to voting procedures may go unnoticed by the voting public. Such a lack of transparency also means an absence of accountability. There is now no centralized method for keeping the community informed of election-law changes.
It should be clear that any attempt to claim that the loss of Section 5 of the VRA is trivial is woefully wrong. Interestingly, Attorney General Eric Holder has been doubling his efforts to get this message across to his audiences as he crisscrosses the country speaking out on the issue of voter suppression. There is little doubt that he views voting rights as a defining moral question for this country. But his tough talk also includes action. As July ended, the Department of Justice (DOJ) filed two separate “friend-of-the-court” briefs, one arguing against Wisconsin’s voter-ID law (already struck down by a federal judge and currently on appeal), and the other in opposition to Ohio’s recent cuts to early voting and same-day registration. MSNBC reports that these actions mark the first time that DOJ has intervened in voting disputes outside jurisdictions covered by Section 5 of the VRA. These interventions follow up on lawsuits already brought by DOJ last year against Texas’s ID law (which Holder called a “poll tax” in one of his speeches) and North Carolina’s sweeping voting laws.
In January 2014, a group of bipartisan lawmakers, led by Senator Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, introduced the Voting Rights Act Amendment (VRAA) in the Senate, and a companion bill was also introduced in the House. The VRAA offers nationwide protections for all threats to citizens’ voting rights with new tools to halt voting discrimination before it occurs. It ensures that proposed election changes are transparent and that jurisdictions that discriminate are held accountable. Many of the key provisions that allowed the VRA to effectively counter voting discrimination have been brought up-to-date, and most significantly, applied nationwide to all jurisdictions. The VRAA would immediately apply to four states – Texas, Georgia, Louisiana and Mississippi, but would act to remedy current voting discrimination wherever it occurs. However, while the Senate has at least begun to hold hearings, the House has not yet even considered the VRAA. House Judiciary Committee Chairman Bob Goodlatte (R-VA), has said he “isn’t sure new legislation is needed.”
NALEO, the National Association of Latino Elected and Appointed Officials; NHLA, National Hispanic Leadership Agenda; and MALDEF, the Latino Legal Voice for Civil Rights in America are among the many organizations supporting the VRAA. Reports of these groups have outlined numerous examples throughout the country of Latino voting discrimination, indicating that it is obvious, egregious and far-reaching. Most telling is the fact that almost seven million Latinos eligible to vote live in jurisdictions previously subject to the requirements of Section 5 and since the Shelby decision are without those protections. The anti-democratic practices we have referred to above are enumerated in their reports — purges of voter lists, redistricting without warning, proof of citizenship for voter registration and restrictive voter-ID requirements. They call for a return of federal observers for all elections to ensure compliance with voting rights laws and are correct in stating strongly that it is a myth that voting discrimination has disappeared.
Eric Holder, himself, has pushed for an even stronger version of the VRAA, especially in the area of voter-ID laws. Recently, he has teamed up with Senator Rand Paul (R-KY) in an effort to restore voting rights to some felons. MSNBC said on August 6, that “his commitment to ensuring access to the ballot for all eligible Americans could stand out as his most important achievement.”
We know that greater voter participation strengthens our nation and democracy. The future vitality of our democracy depends on encouraging efforts to pass the VRAA so that all people, regardless of their race or ethnicity, class, age, or gender can, without difficulty, carry out the precious privilege of voting. The fact that the United States is now a democracy does not mean that it is a foregone conclusion that it will always remain so. We must be vigilant and work to protect the rights of all to partake of the benefits and responsibilities of our democracy; working for the common good demands no less. “We the People” must cherish our vision of equity and social justice for all the people.