Occupy Wall Street joined the NAACP as thousands marched in midtown Manhattan on Dec. 10, 2011 to defend voting rights. Credit: Michael Fleshman/cc by 2.0

By Cydney Hargis
WASHINGTON, Jul 4 2013 (IPS)

Advocacy groups here are reacting with frustration as several southern U.S. states have moved to enact stricter voting requirements in the wake of a recent Supreme Court decision that rolled back key legislation that had safeguarded minority voters for decades.

Following last week’s five-to-four Supreme Court decision overturning a key part of the Voting Rights Act, nine southern states with a history of discriminatory voting requirements are now able to change their election laws without approval from the federal government.“Basically the voter [photo] ID is a solution looking for a problem." -- Kathy Culliton-Gonzalez of the Advancement Project

Chief Justice John Roberts wrote the majority opinion, stating: “Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation is passes to remedy that problem speaks to current conditions.”

Yet just 48 hours after the decision, Texas, Mississippi, Alabama and South Carolina announced plans to push through together voting restrictions that critics are warning could disenfranchise minority voters.

“Limiting the voices that can be heard is repugnant to what the country stands for,” Andrew Blotky, director of legal progress the Center for American Progress, a liberal think tank, told IPS. “We have always expanded the ability of people able to participate fully in our society, not restrict it.”

Just two hours after the Supreme Court decision came out, Texas announced that its voter identification law, requiring the presentation of a government-issued photo ID, would go into immediate effect.

Texas Governor Rick Perry also signed into law a new congressional voting map that is almost identical to the map that was ruled discriminatory last year, according to Kathy Culliton-Gonzalez, director of voter protection at the Advancement Project, an advocacy group.

“It’s not really that [southern states] weren’t treated equally; it’s about the fact that they earned this reputation to not be trusted,” Culliton-Gonzalez told IPS. “There is a reason that Texas, Mississippi, Florida and North Carolina were all covered in Section 4 [of the Voting Rights Act].”

Texas does offer free identification certificates for residents who lack other forms of photo ID, but the documents required to obtain these certificates are costly. According to Culliton-Gonzalez, some residents can be forced to drive up to 400 kilometres to apply for the free certificates, which is impractical for many voters, particularly those who are poor.

In North Carolina, meanwhile, another state impacted by the Supreme Court decision, lawmakers are now attempting to eliminate early voting, same-day registration and Sunday voting hours, and are likewise planning to implement new photo identification requirements.

According to Think Progress, an advocacy group associated with the Center for American Progress, about 613,000 North Carolinians currently lack the required photo ID, and nearly one third of these are African American.

Florida, too, is looking to cut the option to vote early, which has been seen as a key tool by which to allow more citizens to vote. Analysts suggest that eliminating early voting will have particularly serious consequences for African-American voters, half of whom cast their ballots during the early voting period in 2008, and made up 22 percent of the early vote in 2012.

“It’s terrible,” Blotky told IPS. “Its not coincidence that these states have already tried to take advantage of the opportunity to enact laws that will restrict the votes of some people who really rely on the ability to have access to polls before the election because they have work or families to take care of.”

Looking for a problem

In Alabama, residents have already been required to show identification at the polls in the form of utility bills, Society Security cards, or a copy of birth certificates. Now, conservatives in the state legislature reportedly hope to have a new photo identification requirement in place by the June 2014 “primary” elections, during which voters will choose candidates for subsequent national races.

In next-door Mississippi, 62 percent of voters have said they approve of requiring photo ID at the polls, and are in favour of a new requirement that is now also aimed to be in place by June of next year.

“Mississippi citizens have earned the right to determine our voting processes,” Secretary of State in Mississippi Delbert Hosemann recently told the press, adding that ne one should have any barriers when casting their ballot. “Our relationship and trust in each other have matured. This chapter is closed.”

Supporters of a requirement for government-issued photo ID at polls say the move will combat a purported voter fraud problem. Opponents, however, claim this issue has been significantly over-exaggerated.

“In case after case last year, we found those allegations of voter fraud were just allegations – that’s all there was to it,” said Culliton-Gonzalez. “Basically the voter [photo] ID is a solution looking for a problem – it doesn’t solve anything at all.”

Photo IDs are intended to cut down solely on in-person fraud. Yet according to a study published in August 2012, there have been just 10 documented cases of in-person voter fraud throughout the United States since 2000. Three of those cases were in a single state, Texas, and there was one conviction.

The NAACP Legal Defense Fund, a legal assistance organisation that fights racial injustice, has stepped up its surveillance of the changes that are being implemented to voting requirements in the southern states that had been covered in Section 4 of the Voting Rights Act. The organisation says it intends to use these findings to show that the previous structure of the legislation was effective.

Importantly, the Supreme Court decision simply stated that the law was functioning off of an outdated formula for figuring out which states required federal oversight. The justices have struck down Section 4 only insofar as they have mandated that the U.S. Congress revisit the issue and come up with a new formula.

In that process, groups such as the NAACP see an opportunity to ensure that this legal cover is re-strengthened and continues as long as it’s required.

“There has been progress nationally and at the state levels, but that does not mean we’ve reached a place where those states are free from racial discrimination,” Leah Aden, assistant council with the NAACP Legal Defense Fund, told IPS. “The goal is to not only get people to register and turn out, but to make sure their votes are meaningfully counted.”

The Supreme Court of the United States. Credit: Mark Fischer/CC by 2.0

By Matthew Charles Cardinale
ATLANTA, Georgia, Jun 25 2013 (IPS)

The U.S. Supreme Court struck down a key provision, Section 4, of the Voting Rights Act (VRA) of 1965 in a five to four ruling today, halting enforcement of Section 5 of the act.

One of the key achievements of the Civil Rights Movement, the act was intended to address historical, entrenched racial discrimination in voting policies and practises.

Even though black people in the United States have ostensibly possessed the right to vote since 1870, under the 14th and 15th amendments to the U.S. Constitution, multiple federal civil rights acts were enacted in 1957, 1960, 1964 and 1965 to address discriminatory practises at state and local levels, including in elections.

Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito ruled to strike down the Section 4(b) of the 1965 act. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.

Section 5 of the VRA of 1965 is one of the strongest enforcement provisions of the act. It requires that the U.S. Department of Justice pre-clear any changes to “any standard, practice, or procedure with respect to voting”, including district maps, in any of the “covered jurisdictions”, which include all or part of 16 states in the United States, mainly in the South. Section 4 defines what areas Section 5 covers."Hubris is a fit word for today's demolition of the VRA."
-- Justice Ruth Bader Ginsburg

“Equal sovereignty”

The case, Shelby County, Alabama v. Attorney General Robert Holder, argued that, on its face, the 2006 Congressional reauthorisation of sections of the act was unconstitutional because it was based on historical data of racial discrimination in election practises that are no longer relevant.

A majority of the court agreed with Shelby County, arguing there is a “fundamental principle of equal sovereignty” between states that requires the federal government to treat states equally.

Section 5, the court wrote, “requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties)”.

The court also ruled the criteria defined in Section 4 – a history of discriminatory practises, along with a low level of voter turnout – were antiquated and no longer justified by current conditions, because of the very success of the act.

Voter turnout and registration rates in covered jurisdictions “now approach parity”, the court wrote, and minorities hold elected office “at unprecedented levels”. It added that discriminatory practises like literacy tests have disappeared and that blatant discrimination is rare.

Justice Ruth Bader Ginsburg blasted the majority opinion in her dissent, writing, “Hubris is a fit word for today’s demolition of the VRA.”

“In the Court’s view, the very success of [Section] 5 of the Voting Rights Act demands its dormancy… Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote.

“The question this case presents is who decides whether, as currently operative, Section 5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments ‘by appropriate legislation,'” she wrote.

Ginsburg noted an current, ongoing problem of a second generation of tactics designed to dilute black voting strength, including redistricting practises and a move to change some elections to at-large voting.

Ginsburg wrote that the Congressional record showed that covered jurisdictions were more likely to be the subject of prevailing discrimination complaints and that there was a procedure for covered jurisdictions to apply to be bailed out of Section 5, and for non-covered jurisdictions to be bailed in, if necessary.

Further, she argued that because Shelby County, the actual plaintiff in the case, clearly qualified for Section 5 coverage, that the court had overreached. “The Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking.”

“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today,” she wrote.

Fury from civil rights advocates

Voting rights and civil rights advocates are infuriated at the ruling and are scrambling to take action.

Some activists are urging Congress to enact a new Section 4 based on modern-day criteria to identify which states and other jurisdictions should require preclearance for any election-related changes

The National Association for the Advancement of Colored People (NAACP) already has a petition on its website calling on Congress to act.

Justin Levitt, associate professor of law at Loyola Law School, Los Angeles, told IPS that such a move may be more complicated and politically challenging than it sounds.

“The court… certainly left the door open. If Congress chooses to return to ‘where’ question [where preclearance should be required], it would have to articulate a set of jurisdictions and the reason for including those and not others responsive to facts on the ground,” Levitt said. “That’s really hard to do.”

“It’s like asking Congress to try to figure out and come up with…current measures for places that are most sick even though they’re taking medicine. Now we’re taking the medicine away and now Congress needs to show it needs the medicine,” he said.

Possible new criteria that have been discussed so far include a history of other voting rights litigation under other provisions of the VRA, the degree to which an electorate is racially polarised or levels of prejudice, he said.

As for the court’s disregard for Congress’s renewal of the act in 2006, “there is not a tremendous amount of consistency in the amount of deference other branches of government get,” Levitt said.

Other activists are looking for a more radical and fundamental change. Rashad Robinson, executive director of ColorofChange.org, said his organisation is pushing for a constitutional amendment guaranteeing the right to vote.

“The right to vote is not enshrined in our Constitution. There’s a host of different requirements and laws, everything from registration to ballot access, in different states,” Robinson said.

“We can continue to be on the defensive, or we can sort of advance a new framework for how elections should be run in this country, and that’s what we’re doing here,” Robinson told IPS.

“We’ve got to be more aspirational,” he said. “We’ve got to think bigger.”