Today marks the fourth anniversary of the U.S. Supreme Court’s decision in Shelby County, Alabama v. Holder, a devastating ruling that immobilized a part of the Voting Rights Act of 1965 (VRA) that was one of the most effective tools for protecting voters and strengthening our political process.
As a result, far too many state and local jurisdictions have unabashedly considered and passed racially discriminatory voting laws; wasted millions of dollars defending them; and cost millions of disproportionately black and Latino Americans their most basic right in our democracy: The right to vote.
For nearly 50 years, Section 5 of the Voting Rights Act required jurisdictions with the worst histories of voter discrimination – mostly, but not exclusively in the South — to notify the federal government of every proposed voting change and get its approval before implementing those changes, a process known as “preclearance.”
The law used a formula set forth in Section 4(b) to determine which jurisdictions are required to secure preclearance. It was this formula that the Supreme Court struck down in Shelby County, leaving Section 5 and its preclearance requirement intact but dormant.
Without this transparency and scrutiny, states and local jurisdictions have directed their time, energy, and resources toward passing and defending racially discriminatory voting laws.
The day after the Shelby County opinion, for instance, North Carolina’s state legislature moved forward with House Bill 589, which required all voters to have limited forms of identification, eliminated same-day voter registration, and cut in half the early voting period — changes that an appellate court said “target African-American voters with almost surgical precision.”
Texas was even swifter.
Within two hours of the Shelby County decision, the state announced its intention to implement the most restrictive photo ID law in the nation, which Section 5 had previously blocked. After four years of litigation and five rulings by five different courts that the law has a discriminatory effect — potentially disenfranchising 600,000 registered voters – civil rights advocates are still fighting the law.
Proponents of these laws claim they are necessary to prevent widespread in-person voter fraud, a phenomenon that has been repeatedly debunked.
In Texas, an appellate court recognized that there have been only two convictions for in-person voter fraud out of 20 million votes cases in the decade before the state passed its photo ID law.
And comprehensive study published in 2014 by The Washington Post found only 31 cases of credible voter fraud out of more than a billion ballots counted from 2000-2014. There is evidence of some voter fraud in absentee balloting. But tellingly, the post-Shelby voter ID laws are silent on remote balloting, which is used predominantly by white voters.
The inference is clear. The real purpose of these laws is to disenfranchise voters of color.
The good news is that the Voting Rights Act remains a powerful tool.
Under Section 2 and 3(c) of the law, plaintiffs can still challenge discriminatory voting laws after they take effect, and federal judges have not been fooled by specious arguments about voter fraud.
At the NAACP Legal Defense Fund, we have successfully challenged the Texas voter ID law in court four times, and North Carolina’s law has also been defeated multiple times.
Still, Section 2 challenges are far from an ideal solution. Bringing a lawsuit takes time – often two to five years – and money – millions of dollars that could be better spent elsewhere. And the costs imposed by these laws can’t be measured in dollars alone.
Because discriminatory laws often remain in effect during litigation, eligible voters can still be disenfranchised until laws are enjoined.
It doesn’t have to be this way. Congress has the authority to devise a new formula to determine which jurisdictions are subject to Section 5, which would revive the Justice Department’s pre-clearance authority. Lawmakers have introduced a number of bills that would do just that, but so far, they’ve gotten nowhere, not even receiving a single hearing.
With President Trump repeating false claims about millions of illegal votes being cast in the 2016 election and establishing an election fraud commission co-chaired by a zealous champion of voter suppression, that task has seldom been more urgent, or more difficult.
But it is not impossible.
More than 50 years ago, we faced a fundamental question of what kind of nation we wanted to be.
Our response, prompted by the courage of ordinary citizens who risked life and limb in Selma, Alabama and elsewhere, was the Voting Rights Act, the greatest expansion of our democracy since the end of the Civil War.
Four years after Shelby County, we find ourselves again facing that same question, one we can no longer delay in answering.
Leah Aden is senior counsel at the NAACP Legal Defense & Educational Fund, Inc. She was a member of the NAACP Legal Defense and Educational Fund’s litigation team in Shelby County, Alabama v. Holder. She is also the author of Democracy Diminished: State and Local Threats to Voting Post-Shelby County, Alabama v. Holder.
The views expressed by contributors are their own and are not the views of The Hill.
Source: The Hill