The Voting Rights Act alive at 50

by Sharon McCloskey, NC Policy Watch, August 6, 2015.

On the eve of its 50^th anniversary, the Voting Rights Act got a shot in the arm from an unlikely source – the traditionally conservative 5^th U.S. Circuit Court of Appeals.

Ruling unanimously in Veasey v. Texas, a three-judge panel of the appeals court in New Orleans held that a restrictive Texas voter ID law had a discriminatory impact on minority voters and violated a nascent section of the Act, Section 2.

That section, long in the shadow of Act provisions requiring states with histories of voting discrimination, like Texas and North Carolina, to get election law changes precleared before becoming effective, moved front and center after the U.S. Supreme Court gutted preclearance in Shelby County v. Holder in 2013.

Voting rights advocates and legal experts worried aloud in the aftermath of Shelby County whether challenges to voting changes under Section 2 could be sustained, given that the section pushes the burden upon voters to prove discrimination after laws are passed, rather than upon states to show the opposite even before such laws can be adopted.

In that void, several state legislatures acted quickly to enact restrictive measures that likely would not have survived preclearance.

In North Carolina, that meant “going with the full bill,” as Sen. Tom Apodaca said before Republicans in the General Assembly rolled out House Bill 589 — a 57-page monster bill which, simply put, made voting harder by requiring photo IDs, eliminating same-day registration, shortening early voting and discounting out-of-precinct ballots.

Two years have since passed and, as legal challenges wind their way through the courts, there is growing recognition that, though perhaps more subtle and sophisticated, discriminatory voting practices persist and call for a remedy.

That sentiment will be echoed today from the White House on down, as advocates and lawmakers celebrate the golden anniversary of an act designed to protect the fundamental right to vote and call for renewed efforts to ensure its sanctity.

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In Veasey, the Fifth Circuit found that the Texas voter ID law had a disproportionate impact upon minority voters, actionable under Section 2 because of historical discriminatory practices there that left such voters with unequal voting opportunities.

That ruling may prove instructive in the North Carolina voting rights trial, which concluded just days earlier in Winston-Salem.

The parties in that case heard from more than 40 witnesses and submitted nearly a thousand documents into evidence over the course of three weeks, and it may take months for United States District Judge Thomas Schroeder to render a decision.

At trial, the Justice Department and the groups and individuals challenging HB589 sought to prove that minority voters in large numbers relied upon measures like early voting and same-day registration – designed to increase their participation in elections – and that the burden posed by the elimination of those measures fell disproportionately upon those voters.

The state countered that even with the new laws, North Carolina still had more expansive voting laws than other states.

But the plaintiffs responded that other states did not have the same history of discriminatory voting practices and pointed out that North Carolina was one of just eight states that had the same full package of voting restrictions – and all of those states shared a similar history and had been subject to preclearance before Shelby County.

The plaintiffs also contended that restrictions on the fundamental right to vote had to be weighed against the state’s professed interests in adopting them, and the more a restriction burdened voters, the stricter the court’s scrutiny should be.

The state struggled on this point, finding it hard to establish that voter fraud or even cost justified the restrictions.

More than once during closing arguments, Judge Schroeder noted that the state should not be making voting harder — at one point probing justifications based upon cost.

“What’s the justification offered at the time for reducing early voting?” Schroeder asked Thomas Farr, an attorney for the state.

“Is it the cost issue? There seems to be some pretty strong evidence that actually it’s more expensive because now you have to open — you have to extend the hours and it is easier to have early voting in sites where they are going to be open anyway, during the government hours.”

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Whether by plan or happenstance, the decision in Veasey and the trial in North Carolina coincide with the 50^th anniversary of the Act and reveal just how its provisions are playing out in what some voting rights advocates are calling a new era of deconstruction.

“As we commemorate the VRA and honor those who fought so hard for it, we also lament that Americans have the weakest voting protections than at any time in the last 50 years,” Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights said in a statement.

As the New York Times notes here, the courts are in the throes of sorting that out.

But expect plenty of calls today for congressional action as well.

In a teleconference with Attorney General Loretta Lynch by his side, President Obama is expected to call for the restoration of the Voting Rights Act, something Congress has thus far refused to undertake.

And in a new report and timeline released today, the Lawyers Committee for Civil Rights echoes that request.

“As the nation commemorates the 50th anniversary, the history of the Texas photo ID law provides a compelling illustration of the consequences of the Supreme Court’s Shelby County decision and the need for Congress to revitalize the protections of the Nation’s signal piece of civil-rights legislation.”

- See more at: http://www.ncpolicywatch.com/2015/08/06/the-voting-rights-act-still-alive-at-50/#sthash.fEZs2Wrh.dpuf