Supreme Court ruling on Voting Rights Act opened floodgates for new restrictions

North Carolina among the “biggest losers” in terms of voting rights

[Editor’s note: This is the latest installment in a series of special reports that Policy Watch will feature this week looking at voters’ concerns and voting issues in the 2020 election.]

It hadn’t even been a day since the U.S. Supreme Court dismantled one of the pillars of voting rights in America, and North Carolina lawmakers weren’t wasting any time.

Republican legislators had been contemplating a bill that would require photo identification to vote. The bill had plenty of support, but it had spent the past two months sitting in committee while lawmakers waited for the Supreme Court to determine whether the state could go much further.

North Carolina was among a handful of states that couldn’t change its election laws or procedures without approval from the U.S. Department of Justice. “Preclearance,” as the practice was known, was part of the Voting Rights Act of 1965, and applied only to a handful of states and counties deemed to have exceptionally troubling records when it came to disenfranchising minority voters.

On June 25, 2013, the Supreme Court gave North Carolina its answer. By a 5-4 decision, the court agreed with lawyers for Shelby County, Alabama, and ruled that the formula the Voting Rights Act used to determine which jurisdictions needed preclearance was unconstitutional.

Had the Supreme Court’s ruling in Shelby County v. Holder gone the other way, North Carolina lawmakers could have passed the original photo ID bill. But with preclearance no longer a factor, North Carolina was free to pass whatever it wanted. And Republican lawmakers wanted to do much more. 

Now, one lawmaker said, they could “go with the full bill,” referring to more extensive omnibus legislation lawmakers had planned on the contingency that they wouldn’t need preclearance.

North Carolina was far from alone. Across the country, states and local jurisdictions that were free from the Justice Department’s watchful eye were taking advantage of their new ability to restrict voting rights in ways that had been impossible for decades. And even in places that hadn’t been under preclearance, the Shelby County ruling sent a clear signal to policymakers about where the Supreme Court stood on voting rights.

The Supreme Court had gutted a pillar of the Voting Rights Act, and the door was wide open.

The counties in blue were subject to preclearance. Click on a county to see the name.

Retrogression

Section 2 of the Voting Rights Act, which prohibits voting practices or procedures that discriminate based on race, ethnicity, language or other minority status, applies to every state, county, city and other jurisdiction in the United States. For habitual bad actors, there was an extra layer of protection in Section 5 of the law: Preclearance required states and other jurisdictions with histories of disenfranchising minorities to seek approval from the Department of Justice before implementing any changes to voting or election laws or procedures.

Under Section 2, anyone could sue over a discriminatory law that made it harder for minorities to vote. But litigation can drag on for years, leaving questionable election laws on the books for multiple election cycles. Section 5 preempted those changes and forced the government to prove that changes didn’t make it harder for minorities to exercise their right to vote.

The Justice Department would look at a number of things when it determined whether to preclear voting changes. Attorneys would investigate the rationale for the changes and analyze their effects on groups like people of color or language minorities. They’d speak with the affected communities to get their input on the effects of a change.

Justin Levitt, a law professor at Loyola Law School who previously worked as a deputy assistant attorney general in the department’s Civil Rights Division, described preclearance as an “early warning system.” One of the system’s biggest features was it forced states and local jurisdictions into a dialogue with the Justice Department about what would or wouldn’t receive approval, and then they could act accordingly, he said.

“It effectively notified decision-makers when a decision was about to take place and required the jurisdictions to compile the data to very specifically tell whether the change in question would have an adverse effect or not,” Levitt said.

If a change reduced minority voting strength or representation, the Justice Department would reject it. The term used for that reduction or dilution of minority voting rights is retrogression.

If the Department of Justice finds a law or other change was made with discriminatory intent, it would deny preclearance. Retrogression alone, even without discriminatory intent, was enough to mark a law for rejection.

Not all voting and election law changes are equal under the eyes of Section 5, even those that on their faces seem similar. For example, 35 states require some sort of identification to vote — North Carolina is the 36th, but the courts have temporarily enjoined its law — according to the National Conference of State Legislatures, and those laws vary from state to state.

For example, Arizona voters in 2004, when the state was still under preclearance, approved laws requiring photo ID to cast a ballot and proof of citizenship to register to vote. Both received preclearance, though Arizona is one of nine states whose voter ID law is classified as “strict” by NCSL. The Supreme Court in 2013 ruled that Arizona can’t require proof of citizenship to vote in federal elections, but left the voter ID requirement in place for state and local elections.

The act of requiring photo ID in itself wasn’t discriminatory under Section 5. Whether such requirements were discriminatory depended on other factors, such as what kinds of identification were acceptable for voting and who was likely to use them.

Gerald Hebert, an attorney who used to work in the voting section of the Justice Department’s civil rights division, pointed to Texas as an example. Like North Carolina, Texas sprang into action virtually the moment the Supreme Court announced its decision, announcing that a photo ID law that had been blocked by a federal court would now go into effect.

Texas’s law prohibited forms of photo identification that minority voters were disproportionately likely to use, such as student IDs and state employee IDs, Hebert said. But it did allow forms of identification disproportionately used by white people. For example, 91% of the people who have licenses to carry firearms in Texas were white. Texas’s law permitted the use of those IDs to vote, even though they were available to noncitizens, undermining GOP lawmakers’ rationale that the photo ID law was intended to prevent undocumented immigrants from voting.

The biggest losers

Most if not all states that were covered by Section 5 have taken advantage of their newfound freedom in the wake of the Shelby County ruling. Voting rights experts say three states — Georgia, North Carolina and Texas — stand out as the worst offenders.

“If there was a TV game show called the Biggest Losers when it comes to voting rights, those three states would win hands-down every time,” Hebert said.

Hebert pointed to North Carolina’s “full bill,” which he fought in court, as one of the most egregious examples.

The bill required photo ID for people to vote. It reduced the state’s early voting period from 17 to 10 days. It repealed laws allowing people to register to vote through election day and allowing teenagers to register if they would turn 18 by election day. And it barred election officials from counting provisional ballots cast in the wrong precinct.

The U.S. 4th Circuit Court of Appeals struck down the law in 2016, ruling that the North Carolina law’s provisions “target African Americans with almost surgical precision.” The findings were no different on the other provisions of the bill. The 4th Circuit noted that the legislature “requested data on the use, by race, of a number of voting practices,” and then used that data to restrict voting rights in five ways that disproportionately affected African Americans.

Section 2 has been an effective tool in striking down discriminatory laws. But while preclearance was a quick and pre-emptive process, litigation under Section 2 can be a lengthy process, as well as an expensive one for plaintiffs who must foot the bill for their own lawsuits rather than relying on the Justice Department to take action.

Parts of North Carolina’s initial post-preclearance legislation spent eight years in the courts before ultimately being struck down in 2019. In the meantime, the lawmakers elected under those laws got to spend years making policy.

“That’s justice denied because that is unquestionably justice delayed,” Levitt said.

Under Section 5, the Justice Department had 60 days to determine whether a law or voting change resulted in retrogression. Any law with discriminatory intent or effect would be rejected quickly. In the post-preclearance world, it takes years. That not only makes it easier for policymakers to restrict minority voting rights; it incentivizes doing it as close to an election as possible so opponents have little time to go to court and get an injunction.

Some observers believe the Shelby County ruling has also caused kind of a ripple effect in places that weren’t subject to preclearance. Levitt said major litigation in states like North Carolina and Texas has left fewer resources for voting rights enforcement elsewhere. Hebert and Bruce Adelson, who helped enforce preclearance as an attorney with the Justice Department, said the ruling showed the Supreme Court under Chief Justice John Roberts is hostile to voting rights, and inadvertently encouraged states and jurisdictions, even those that weren’t under preclearance, to act accordingly.

“I do think that the decision to strike down the most effective civil rights law in the history of our country, the Voting Rights Act, in particular preclearance, sends an ominous signal throughout the nation that the Roberts court is going to not be a guardian of the voting rights of Americans,” Hebert said.

[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””] [box title=”States subject to preclearance” border_width=”5″ border_color=”#000000″ border_style=”solid” align=”center”] These are the jurisdictions that were previously required to get any legislation that would affect voting cleared before they could become law: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. States where only some individual counties or townships were covered: California (three), Florida (five), Michigan (two), New York (three), North Carolina (40), South Dakota (two)  [/box] [/perfectpullquote]

All politics is local

While statewide legislation and redistricting plans have generated the most high-profile legal battles in post-preclearance America, it’s at the local level, in counties, school board districts and in other special districts, where the effects of Shelby County are often most keenly felt.

Preclearance prevented discriminatory practices at the local level. After the Shelby decision in North Carolina, election boards in Forsyth and Pasquotank counties, both home to historically black colleges and universities, closed early voting sites on college campuses. Pasquotank was one of the state’s 40 counties that were under the preclearance requirements. Other counties, some of which were subject to Section 5 and some of which weren’t, limited early voting hours and voting sites on college campuses. At-large voting, in which voters in an entire city, county or other jurisdiction select representatives instead of voting district by district, was long a red flag for the Justice Department as a way to disenfranchise minority voters.

Just because an entire state wasn’t covered by preclearance doesn’t mean statewide changes didn’t need Justice Department approval. North Carolina, for example, wasn’t covered statewide, but 40 of its 100 counties were, which ultimately required preclearance for any statewide changes.

The changes that Shelby County has permitted may pale in comparison to the test that’s coming next year — redistricting, which Adelson called the Justice Department’s “red alert” issue when Section 5 was in effect.

For some previously covered states, 2021 will mark the first redistricting since the end of preclearance. And those who are watching closely to see how minority voters will fare under the new congressional and legislative districts are concerned. “This is uncharted voting territory, in a sense. It’s the first time without Section 5 in a long time,” Adelson said.

Levitt said one of the most valuable services that preclearance provided was to push back against incumbents protecting their own districts. Without preclearance, he worries what will happen next year when legislatures in previously covered states redraw their congressional and legislative districts.

“I am very afraid that when all the knives come out at once, we don’t have the tools to make sure that we are amply defended against the exceedingly powerful incumbent incentive,” Levitt said.

Some voting rights experts are hopeful that federal preclearance can make a comeback as well.

Technically, the Supreme Court only struck down the formula used to determine which jurisdictions needed preclearance. It was Section 4, which contained that formula, not Section 5, which mandated preclearance for bad actors, that the high court found to be unconstitutional. That means Congress can re-authorize preclearance under a new formula — or at least it can if the House of Representatives, Senate and White House all agree.

Thus far, that has been far from a reality. In previous years, Republicans were overwhelmingly supportive of the Voting Rights Act. The most recent reauthorization of the Voting Rights Act occurred in 2006, with most House Republicans voting for renewal and the Senate approving it unanimously.

More recently, however, the GOP has been hostile to the idea of reconstituting the preclearance requirement. Republicans controlled the House of Representatives at the time of Shelby County, and have since taken the Senate and White House, though the House is back in Democratic hands as of 2019.

The House in December passed legislation that would restore preclearance and update the criteria used to determine which jurisdictions need Justice Department approval. After longtime Georgia congressman and civil rights icon John Lewis died in July, House Democrats moved to rename the John R. Lewis Voting Rights Act of 2020. Lewis and other civil rights marchers were brutally beaten by state troopers on the Edmund Pettus Bridge in Selma, Ala., during a 1965 march for the original Voting Rights Act, and Democrats are pushing to pass the bill, which has little support from Republicans, in his honor.

Hebert is hopeful that, if former Vice President Joe Biden defeats President Donald Trump in November and the Democrats take control of the Senate, preclearance will again become a reality next year.

Lisa Sorg of NC Policy Watch, John McCosh of the Georgia Recorder, Ken Coleman of the Michigan Advance, Michael Moline of the Florida Phoenix and Graham Moomaw of the Virginia Mercury contributed to this report.