In a series of stunning appellate court decisions, restrictive voter registration laws passed in recent years have been overturned in 5 states. These rulings have sparked debate over an issue that will inevitably impact the long-term future of our democracy and upcoming elections.
Political discourse during the Barack Obama years has been more race-conscious, for good reason. The gravity of Obama’s election as the first black President and his support for controversial social change such as same-sex marriage have brought these issues to the forefront of national debate. Certain criticisms of Obama and his family brought to light the prejudiced attitudes people continue to hold. The police killings of unarmed African-Americans and strong pushback from Black Lives Matter advocates have become prominent topics of discussion. This election is, in many ways, a referendum on Obama’s presidency, and tense racial issues, changing demographics in the electorate, voter turnout, and voter registration are required reading for anyone looking to understand the 2016 election.
Despite losing the white vote by 20% in 2012, Obama won a resounding reelection on the backs of a changing electorate. Met with this reality, Republicans understood there were two possible directions: broadening their message to appeal to minority voters or finding a way to win despite them. In 2013, Reince Priebus and the RNC released the Growth and Opportunity Project, a sort of ‘autopsy report’ to ascertain what went wrong in the 2012 general election. One of the sections, “America Looks Different,” described the changing demographics of the country: “The nation’s demographic changes add to the urgency of recognizing how precarious our position has become. America is changing demographically, and unless Republicans are able to grow our appeal the way GOP governors have done, the changes tilt the playing field even more in the Democratic direction.” Clearly, Republicans recognized that something needed to change.
In this climate of increased awareness surrounding racial issues, the Supreme Court heard Shelby County v. Holder in 2013. This case challenged Sections 4(b) and 5 of the Voting Rights Act of 1965 (VRA), which protected certain areas of the country from discriminatory voting laws by requiring that voting law changes be approved by the federal government.
President Lyndon B. Johnson signed the VRA into law and Congress has amended it several times since then. It is considered one of the greatest successes of the civil rights movement. It finally enforced the full protections of the 15th amendment and helped African-Americans vote without the burden of poll taxes and ancestry tests. Section 4 of the Act created a “coverage formula” that singled out districts that engaged in racial discrimination in 1965. Although it was originally meant as a temporary provision, Congress has renewed it several times, most recently in 2006 when it was reauthorized for 25 years. Congress updated the information twice in 1970 and 1975, but hasn’t since then. They relied on the 1975 data when making that decision, which went on to become a central issue in the Supreme Court.
Their 5-4 decision in Shelby County v. Holder repealed section 4 of the VRA, allowing areas covered under the provision to change election laws without direct federal oversight.
There was a fundamental disagreement over whether those areas still required special protections under the VRA. The majority opinion cited statistics regarding the areas affected by Section 5, making a compelling case:
“’There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, the racial gap in voter registration and turnout [was] lower in the States originally covered by Section 5 than it [was] nationwide.’ Since that time, Census Bureau data indicate that African American voter turnout has come to exceed white voter turnout in five of the six States originally covered by Section 5, with a gap in the sixth State of less than one half of one percent.”
Clearly, the outdated data was a significant factor in the majority’s decision. The dataset from 1975 was not reflective of the facts in the electorate. The majority therefore deemed the singling out of certain areas of the country arbitrary.
Justice Ginsburg, in the dissent, focused on the success of the Voting Rights Act in achieving its aims, understanding it as a transformative piece of legislation. While the majority said this very success (in registering and turning out black voters) no longer necessitates Section 4, Ginsburg said this success meant the VRA needed to be protected. She argued, “For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.”
The intentions of the majority were fair. Laws that distinguish between various groups must be scrutinized carefully. Voting rights are still an issue in all the states and it is clear that these states still need special protection, proving that a successful policy should not be struck down just because it succeeds. Ideally, Congress would extend protections to all the states and protect everyone’s voting rights, even expanding them through automatic voter registration and increasing the number of polling places.
Their intentions aren’t good enough, though. Despite this theoretical framework, it seems that this section of the VRA was, in reality, acting as a deterrent to discriminatory voting laws. Once the Supreme Court overturned Section 4, states such as North Carolina and Texas were quick to enact new voting laws that would previously have been blocked.
Minority voters are two times less likely to have photo ID. Powerful groups such as ALEC have been quite successful in passing voter ID laws through Republican-controlled statehouses to reduce voter fraud, but it is clear that the true purpose was to disenfranchise these minority voters. The specter of voter fraud has been widely debunked as a non-issue, yet it remains the stated reasoning for these laws.
Several appellate courts around the country have now finally put those dubious justifications to rest. The United States Court of Appeals for the Fourth Circuit ruled against North Carolina’s voter ID laws, saying it tried to “target African-Americans with almost surgical precision” by blocking access to voting methods African-Americans used more often. Indeed, a report by Democracy North Carolina revealed that polling place problems and new voter laws reduced turnout by at least 30,000 people. In Texas, the Fifth Circuit Court of Appeals struck down another restrictive voter ID law that especially disenfranchised minorities. North Dakota’s law was struck down for being overly restrictive to Native Americans. Dale Ho, the ACLU Voting Rights Director, described the effect: “It confirms that courts understand that these laws are not only unnecessary but they are in many cases designed to — and in all cases have the effect of — unduly burdening voting rights, particularly for voters of colors.”
Laws in Wisconsin and Kansas were also struck down for being too restrictive. These decisions were victories for advocates of voting rights, but there are still major restrictions in place in other states. Ohio is a major swing state that passed a law reducing access to early voting. Voters in Alabama, Mississippi, and Virginia also face stricter measures. In fact, 10 states will have stricter requirements in 2016 than they did in 2012.
The Supreme Court previously debated the constitutionality of the 2006 extension of Section 4 in Northwest Austin Municipal Utility District Number One v. Holder in 2009. After that case, Congress had an opportunity to change the formula and pass more targeted measures. They should revisit this opportunity in order to create a law based off of current day evidence and therefore constitutional.
While some states are moving in the right direction, others are regressing back to discriminatory policies. States should make it easier to vote, not harder. Automatic voter registration, already a reality in several states, would be an important step towards preserving our democracy. Congress should pass legislation automatically registering all citizens above the age of 18 to vote. Restrictive voting laws simply undermine our democracy and continue to perpetuate systemic problems. If voters knew they could make a difference, they would feel less helpless – in political science terms, they would have more political efficacy: faith in their ability to influence government.
Despite the need for a change in party strategy, GOP state legislators did not heed productively and inclusively the Growth and Opportunity Report’s warning that America is changing. Instead of putting forward a broad message to appeal to all voters, they worked to restrict the means of registering to vote, specifically targeting those minorities with which their numbers were unfavorable. Now they must face the results of their blatant racial politics. Although his critics often accuse Obama of divisiveness, these restrictions are truly divisive.
The Republican Party will have to once again reevaluate its motivations and strategy after this election. Despite the attempts of conservatives such as Jeb Bush and Marco Rubio to engage today’s America, their colleagues continued to rail against their immigration policies. The culmination of the Republican Party’s failure to heed the 2012 autopsy report is their nomination of Donald Trump, an obvious xenophobe who also supports voter ID laws and further disenfranchisement.
Preserving and even expanding our democracy is the right thing to do. But consider which strategy is more effective politically: Disenfranchising your opponents through voter ID laws or taking on voting rights as a core issue and fighting for a fuller democracy?
When you accept that you can’t reconcile the future reality with your current beliefs, you hand an entire issue to those who see the writing on the wall, regardless of right or wrong. It should be obvious to anyone paying attention that this is an ethical nightmare and a political mistake. The GOP would do well to change course starting November 9, 2016.