Some court rulings end fights. Others rev them up. In 2014, courts and legislatures across the U.S. will be grappling with a big question the Supreme Court tossed onto the political battlefield in 2013: Has the country overcome its history of racial discrimination enough to justify relaxing laws against it? Since the court voted last June to throw out a core element of the 1965 Voting Rights Act, most of the states that until then had faced restrictions on election-law changes have pushed forward with measures to tighten eligibility requirements for casting a ballot. The states that took action, all with Republican governors at the time, said they were cracking down on voter fraud. Opponents say their real purpose is to make it harder for poor people to vote. Both sides agree that the political stakes are high.
The Justice Department filed suit against Texas and North Carolina over new voter rules; a trial in the Texas case opened in September with lawyers for the Republican-controlled state legislature arguing that it had been unfairly singled out for scrutiny in an attempt to boost Democratic vote totals. Laws in both states would make photo identification mandatory for voters; the North Carolina law also cut the period for early voting almost in half and eliminated same-day registration. Since Republicans took control of a majority of state legislatures in the 2010 elections the pace of of election-related legislation has risen sharply, and 19 states now have some form of a law requiring a photo ID to vote. Democrats worry that photo ID laws in particular will keep otherwise eligible poor or minority voters from the polls, as members of these groups are more likely to lack a drivers license, for instance. Attorney General Eric H. Holder has made fighting such laws a personal priority, and in December he named Pamela Karlan, an expert on voting rights, to lead the department’s voting-rights section. In January, bipartisan bills were introduced in both houses of Congress to address what the Supreme Court called a failing in the Voting Rights Act, but action is unlikely in an election year.
The 1965 Voting Rights Act enfranchised millions of black people in the South who had been barred from voting by poll taxes, literacy tests and other such laws. One of its key provisions, Section 5, required that changes in district lines or other matters related to voting be pre-approved by the Justice Department in areas determined by a formula that looked at voter registration rates, turnout and ballot-box rules in the 1960s and early 1970s. The pre-clearance provisions were applied to most of the South along with Alaska and Arizona and small pockets of states including California, Michigan and New York. Over the years, Congress used Section 5 to block thousands of proposed changes. The act was renewed in 2006 by large bipartisan majorities and signed into law by President George W. Bush, a Republican. In June 2013, writing in a 5-4 decision, Chief Justice John Roberts ruled that Congress had erred in leaving the list of covered areas unchanged for decades despite progress in reducing racial discrimination. The law still allows for challenges to voting rules on the basis of discrimination under another provision, Section 2 — but those challenges can only come after a law has been enacted, and plaintiffs carry the burden of proof. The bipartisan bill to amend the act would address Roberts’s objections by updating the criteria used to single out states and counties.
Supporters of the Supreme Court ruling say the Voting Rights Act has served its purpose and that if any state is sanctioned with federal oversight, all states should be. Republicans say the new election laws are meant to ensure election integrity by imposing reasonable requirements, similar to those for boarding an airplane or cashing a check. Democrats respond by pointing to studies showing that voter fraud is extremely rare. Beyond the specific cases lies a broader debate over how potent a force discrimination still is in American life, and how to separate race and politics when minorities increasingly identify with one party. In one particularly bold assertion, Texas responded to Justice Department complaints about redistricting maps produced by Republicans in 2011 by saying that the changes weren’t aimed at minorities but were purely partisan moves “designed to increase the Republican Party’s electoral prospects at the expense of the Democrats” — something the Supreme Court has already found to be constitutional.
The Reference Shelf
- Read the U.S. Supreme Court ruling on the Voting Rights Act of 1965 here.
- A chart by Bloomberg Visual Data on the history of enforcement of the Voting Rights law.
- The National Conference of State Legislatures has a database of changes in state election laws and a breakdown of state voter identification requirements.
- The Brennan Center for Justice has compiled a list of studies on the impact of voter ID laws.
- ProPublica’s map of changes in state voting laws since the court’s decision.