Some court rulings end fights. Others rev them up. Courts and legislatures across the U.S. continue to grapple 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 to throw out a core element of the 1965 Voting Rights Act, many of the states that until then had faced restrictions on election-law changes 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 said their real purpose was to make it harder for blacks and Hispanics to vote. During the 2016 campaign, a number of courts agreed. Donald Trump, the Republican presidential nominee and eventual winner, complained before and after the vote of a “rigged” election — concerns that proved unfounded.
In April, a federal judge ruled that ruled that Texas lawmakers had intentionally made it harder for poor Hispanic and blacks to vote when they passed the nation’s strictest photo ID law in 2011. The decision in the long-running case raises the possibility that Texas could be put back under federal supervision for all changes to its election policies. The 2013 Supreme Court decision had stripped the federal government of the power, known as pre-clearance, to review such proposals in areas with a history of voter discrimination. The ruling was a loss for the Trump administration, which in February had reversed the Justice Department's previous position that Texas had discriminated. Trump has spoken often of voter fraud and voter-identification laws: After the presidential election, he said he would have won the popular vote if not for “millions” of illegal votes he said were cast in California and elsewhere. He provided no evidence for the claim, which both election experts and state officials from both parties denied. In addition to the Texas case, federal judges pushed back in 2016 against laws in North Carolina, Wisconsin, Kansas, North Dakota and Ohio. The laws had been part of a surge in new voting restrictions passed by state governments controlled by Republicans after the Supreme Court's decision.
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. A bipartisan bill to amend the act sought to address Roberts’s objections by updating the criteria used to single out states and counties, but failed to gain enough support to move forward.
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. Evidence in the Texas trial suggested that only two instances of in-person voter fraud had been found among the 62 million ballots cast in the state in the previous 14 years and the judge in the Wisconsin case called it a “mostly phantom” problem. In his final press conference before leaving office, President Barack Obama described the U.S. as “the only country in the advanced world that makes it harder to vote rather than easier.” He said the phenomenon “traces directly back to Jim Crow and the legacy of slavery” — a very different interpretation than the Supreme Court took in its 2013 decision.
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.
First published Feb. 6, 2014
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