New Report Is The Latest Confirmation That SCOTUS Was Wrong About The VRA

When the Supreme Court gutted the Voting Rights Act, the law’s long-time foe and Chief Justice, said we moved on from those bad days in the Sixties. The usual suspects joined with the Chief Justice in providing judicial legitimacy to the factually debunked talking point – that strict voter ID laws will eliminate “rampant voter fraud.”

Justice Ruth Bader-Ginsberg wrote a scathing dissent that not only contradicted the Majority’s claim that we have moved on from the era in which the VRA was necessary but also recognized that as a consequence of new voting discrimination laws, including restrictive voter ID laws, eligible American voters will lose their franchise.

Two new studies on Voter ID laws confirm what critics of these laws have said all along.  The first study by Justin Levitt obliterated the right wing talking points used to justify restrictive voter ID laws.  Levitt concluded after tracking in person voter ID since 2000, the odds of in person voter fraud occurring on 31 in a billion.  The numbers are based on the frequency of incidents of alleged in person voter fraud in municipal, primary, regular and special elections and the total number of votes cast in primary and regular elections between 2000 and 2014.

The second study flips the coin to examine the consequences of a weakened Voting Rights Act in deterring laws that disenfranchise eligible voters.

This study by the National Commission on Voting Rights proves that pre-clearance stopped voter discrimination laws, not a sudden enlightenment on the part of  pre-clearance states, especially those in the South and Southwest.  The study examines the frequency by which preclearance prevented voter discrimination laws and the developments after the Supreme Court’s disastrous Shelby County ruling.

Not only does the study prove that preclearance stopped voter discrimination laws, but the very attitudes that made those laws possible remain a reality.  This is highlighted in two over the study’s overall conclusions.

• Voting discrimination is a frequent and ongoing problem in the United States. There were about 332 successful voting rights lawsuits and denials of Section 5 preclearance by the U.S. Department of Justice and another ten non-litigation settlements.
• Formerly covered states in the South and Southwest stand out with some of worst records of voting discrimination-with Texas being at the top of the list. Texas stands out as having a remarkably high level of documented voting discrimination, including multiple state-level violations. And the States of Georgia, Louisiana, Mississippi and South Carolina were not far behind.

Between 1965 and 2013, more than 3,000 voting changes were denied under Section 5 preclearance.  These denials came in the form of objection letters and court judgments.

The study also looked at the consequences of the Shelby ruling by reviewing what section 5 did and what occurred after the SCOTUS effectively killed Section 5. Preclearance proved to be a deterrent to passage of similar laws.  North Carolina waited until after the Shelby Ruling to amend its photo ID bill with several other restrictions, such as eliminating pre-registration, straight party ticket voting and same day registration.

The Supreme Court’s majority was wrong about something else in Shelby, namely the idea that Section 2 is an effective “remedy.”  First, we can see from Friday’s ruling in North Carolina that it is a weaker legal mechanism.  For one thing, there is a difference in the methods of interpreting a voting law.  Under Section 2, one has to prove a measure is adverse relative to other voters.  The difference is shown in the question of reduced voting days.  Under Section 5, the mere fact that NC reduced voting days from 10 to seven would be enough to prove it hurt minorities.  Under section 2, the argument can be (and was) made that there is still “plenty” of time for minorities to vote even with reduced early voting days.

The other problem is isolating racial discrimination, vs. partisanship as a motivating factor to passing a law like the one in North Carolina and similar versions in other former pre-clearance states.

Rick Hasen explained the problem more fully in a law review article.  Simply put, because white people in the south predominantly support Republicans and racial minorities predominantly support the Democratic Party, defenders of vote discrimination laws argue they are motivated by establishing a partisan advantage, rather than an intent to discriminate against minorities.  If a court believes the party discrimination argument, as it did in North Carolina, it will uphold the law.  If the court sees through that argument of convenience, it will strike the law down.  Put another way, the partisan discrimination argument raises enough “reasonable doubt” for a court to reject evidence that lawmakers were motivated by racial animus.  The problem is restricting the vote based on a person’s political views is more consistent with totalitarian regimes like the former Soviet Union than it is consistent with American values.

In fact, Greg Abbott made the partisan discrimination argument in Perez v. Texas.

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.

This means, as Hasen pointed out, it will be up to Federal Courts to recognize that “partisan discrimination” should no more acceptable under the 14^th amendment than “racial discrimination.”

Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has a good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context).

Aside from shifting the burden from proving a law does not have an adverse effect on minorities to requiring minorities to prove that it does, the absence of pre-clearance means these laws have to be challenged on a case-by-case basis.  That is both expensive and time consuming.

Another consequence of the Shelby County ruling lies in the reversal of advancements made under pre-clearance.

When Georgia first tried to pass a law that moved the Election Day in Augusta-Richmond the DOJ rejected it under preclearance.  Georgia passed that law after the Supreme Court ruling in Shelby County. African-American residents sued claiming “that Shelby County only applied prospectively, and that Section 5 therefore continue to prevent the date change from being implemented.” The court rejected that ruling, which as the study states “removed any lingering doubt about the retroactive applicability of the Shelby Counter decision on post 2006 preclearance denials.”

Texas provides another example.  In 1985, a federal court orders the Beaumont Independent School District to change from a system of five districts and two at-large seats to a system of seven single-member districts.  In a 2011 citizens’ initiative, voters authorized the ISD to revert to the old system.  Under pre-clearance, the DOJ rejected that change saying the change would lead to “a retrogression in African-American electoral opportunity.”  Since the Shelby County ruling, the ISD is planning to go back to the old system.

As lawyers battle it out in the courts, the fact remains these laws disenfranchise eligible voters to a far greater extent than they “stop” statistically non-existent in person voter fraud.

Now defenders of these laws suggest that since we need photo ID for many aspects of modern life, the notion that they disenfranchise eligible voters is nonsensical.  Try telling that to 97-year-old Kansas resident, Beth Hiller.  Like many other elderly voters, she doesn’t drive and because she lives in a nursing home, she has little practical need for a photo ID in her daily life.

The same holds true of younger, college-aged voters. They have government issued student ID, but that form of ID is excluded from the limited list of “acceptable” ID in states like Texas and North Carolina.

The bottom line is the combination of these studies confirm that “rampant” in person voter fraud is a myth and the Supreme Court was wrong when it suggested we have moved on from the days that pre-clearance was necessary. They were wrong when they claimed attitudes have changed  since 1965.

Image: NAACP