The U.S. Supreme Court will hear oral arguments Wednesday in a challenge to the constitutionality of key sections of the historic Voting Rights Act (VRA) of 1965.

Numerous organisations are rallying in support of the VRA. Activists across the nation, including Dr. Charles Steele, CEO of the Southern Christian Leadership Conference (SCLC), are traveling to Washington, DC to protest outside of the court.

“Everything has changed, but nothing has changed,” Dr. Steele told IPS.We’ve got folks in our generation who think we have arrived. I tell you, you think you have arrived, but you got off at the wrong station.

“Everything has really gone backwards in terms of our successes. If we let this go, if we sit idly by, then we’re destined for failure. We’re not going to rest on our laurels because we have a black president. We’re going to take to the streets and that’s where we’re heading,” he said.

“We’ve got folks in our generation who think we have arrived. I tell you, you think you have arrived, but you got off at the wrong station – you got to get back on the bus,” he said.

Even though black people in the U.S. have ostensibly had the right to vote since 1870 under the 14th and 15th amendments to the constitution, several federal Voting Rights Acts were enacted in 1957, 1960, 1964, and 1965 to address discriminatory election practices at the state and local levels.

Section 5 of the VRA of 1965 is one of the strongest enforcement provisions of the Act. It requires that the justice department preclear 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 U.S. states, mainly in the U.S. south.

The case, known as Shelby County, Alabama v. Attorney General Robert Holder, argues 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 practices that are no longer relevant.

“That’s actually not true,” Lisa Bornstein, senior counsel and senior policy analyst for the Leadership Conference on Civil and Human Rights, told IPS. “We have loads of examples, continuing to this day, there are voting discriminatory practices happening in covered jurisdictions.”

The justice department recently blocked voter ID laws in South Carolina and Texas that, if not blocked, would have been in place during the November 2012 elections.

“Also, there are redistricting efforts. In Texas there was an attempt to redistrict so that Hispanics, who are now 65 percent of the growth, to limit that voting power by the way of redistricting,” Bornstein said.

“Then there’s examples like changing the date of an election, changing the place of an election.
Some of them are done to have a discriminatory impact,” she said.

Examples of modern-day discrimination in covered jurisdictions are in the thousands.

In 2008, the City of Calera, Alabama redrew one of its City Council districts to reduce the black voting population from 69 percent to 29 percent, leading to an incumbent black councilmember, Ernest Montgomery, losing his seat.

The justice department intervened, requiring the city to redraw the lines and hold a new election, in which he was reelected. That action led to the current Supreme Court challenge by Shelby County, in which Calera is located.

In another example, in 2001, the justice department objected after the all-white town government in Kilmichael, Mississippi tried to cancel an election shortly after black citizens had become a majority. When the citizens of Kilmichael finally voted, they elected the town’s first black mayor and three black aldermen.

The Act also provides that covered jurisdictions can petition to “bail out” of Section 5. Beginning in 1982, jurisdictions could bail out if they could prove they had complied with a list of nondiscrimination requirements for 10 years.

In addition, the Act provides that the new jurisdictions can be “bailed in”.

Congress reauthorised the VRA of 1965 in 1970, 1975, 1982, and in 2006.

In 1975, Congress expanded Section 5’s reach to cover jurisdictions that had engaged in widespread discrimination against “language minority” groups.

In 2006, Congress held extensive hearings on the VRA and the continued need for Section 5 today, considering some 15,000 pages of legislative record.

The 2006 reauthorisation was approved 98 to zero in the Senate, and 390 to 33 in the House of Representatives.

The Supreme Court has upheld Section 5 of the VRA several times, including in 1966, in a landmark case, South Carolina v. Katzenbach; and again in 1973, 1980, and 1999.

More recently, in 2009, in Northwest Austin Municipal Utility District Number One v. Mukasey, the Supreme Court issued a ruling expanding the types of jurisdictions that could bail out of Section 5 coverage. The Municipal Utility District had not been previously been considered an independent enough district to be eligible to bail out.

Since that decision, 127 additional jurisdictions have bailed out. “It’s not a particularly onerous process,” Bornstein said.

“That’s part of the beauty of this law and why we believe it’s constitutional. This law allows for flexibility in case there’s overinclusiveness or underinclusiveness, to make sure the law as a whole functions properly,” she said.

In the Northwest Austin ruling, the court acknowledged the progress made in covered jurisdictions since 1965, attributing this progress to the VRA itself, noting that the progress may be “insufficient and that conditions [may] continue to warrant preclearance under the Act.”

The court added that “the Act imposes current burdens and must be justified by cur­rent needs.” This language has led some legal scholars and pundits to predict that Section 5 of the VRA might be in danger altogether, especially given the fact that the Supreme Court chose to hear the current case.

But advocates do not believe the section is in danger because they believe the current burdens are met by current needs.

“It would be a big step for the Court to determine that [the reauthorisation was unconstitutional]. Congress has the authority to make this determination. The court cannot second guess if what Congress has done was reasonable,” she said.

As previously reported by IPS, there were numerous voter suppression laws and tactics in place during the November 2012 elections, representing a new generation of Jim Crow laws.

Some of these activities occurred in jurisdictions not covered by Section 5 and did not require preclearance by the justice department. However, Section 2 of the VRA of 1965 allows the justice department to bring case-by-case litigation in non-covered jurisdictions, something Section 5 attempts to avoid in historically discriminatory jurisdictions.

Posting billboards with misleading information about voter fraud is one of many voter suppression tactics. Above, a billboard in Massachusetts. Credit: amelia.louise/CC by 2.0

By IPS Correspondent
ATLANTA, Georgia, Nov 5 2012 (IPS)

Voter suppression has reached new heights in the United States, analysts and experts say, as elected state officials have increasingly resorted to a new and growing generation of voter suppression tactics.

Whether these tactics will tip the outcome of the presidential race is uncertain, but they are likely to affect races at least at state and local levels during elections on Nov. 6.

Although no U.S. citizen can technically be deprived of his or her right to vote due to race, ethnicity or socioeconomic status, the majority of these tactics, driven in part by groups like the American Legislative Exchange Council, appear to be directed at black and low-income communities, as they have a disproportionate negative impact on voters in those communities.

“They’re trying to stop certain people from voting – communities of color, poor white people as well. People of less socioeconomic status, generally the elderly, students,” Helen Butler, executive director of the Georgia Coalition for the People’s Agenda, told IPS. “Those people are typically those who would be more disenfranchised.”

Butler said she thought the state of Georgia had served as “the testing ground for everywhere else”, adding, “I would say it’s gotten more intense.”

While poll taxes and literacy tests that were prevalent in the Jim Crow Era prior to the Civil Rights Movement and the passage of the Civil Rights Act are long gone, officials – primarily Republicans – in state legislatures across the country have ushered in a new wave of suppression tactics.

Contemporary voter suppression tactics include more restrictive voter identification laws, voter purging, reinstating tougher felon disenfranchisement laws, restricting early voting, voter intimidation and misinformation tactics.

“I believe, whether it’s Republican or Democrat, they believe in stopping the vote for fear of people they have to contend with. They feel they can have a better chance of winning if there’s less people participating.  If more people are participating, there’s more of a chance because of their stance of issues, that they won’t get elected,” Butler said.

Voter ID laws

The southern state of Georgia is ground zero for voter identification laws. In 2006, Georgia was the first state to reduce the number of eligible forms of identification (ID) that voters can use to vote, from 17 to five.

Georgia’s law was approved under President George W. Bush by the U.S. Department of Justice (USDOJ), which can block election laws in states that have a history of racial discrimination.

Since then, eight more states have enacted extremely strict voter ID laws, including Indiana, Kansas, Mississippi, Pennsylvania, South Carolina, Tennessee, Texas and Wisconsin, according to a report by the Advancement Project.

The general trend of these laws is to require an unexpired government-issued ID in order to vote. Previously acceptable IDs in those states that have been eliminated include veterans’ ID cards, utility bills, student IDs issued by private universities, social security cards, and out-of-state and expired state IDs.

These more restrictive laws are currently in effect in five of those states – Georgia, Indiana, Kansas, Pennsylvania, and Tennessee – while others have not withstood the scrutiny of the courts or the USDOJ.

Last month, a judge ruled that Pennsylvania’s law could not go into effect for the Nov. 6 election. Officials there, however, have continued to run misleading ads suggesting otherwise.

South Carolina’s 2011 photo voter ID law, on the other hand, became the first election law to be blocked by the USDOJ in nearly twenty years, under administration of President Barack Obama. Texas’s law also was blocked by the USDOJ under Obama.  Both laws are now the subjects of ongoing litigation.

Meanwhile, Mississippi’s law has not yet been ruled upon by the USDOJ; and in Wisconsin the law has been enjoined by the courts but is still on appeal.

According to Butler, voter ID restrictions also have a special impact on rural voters. Butler raised concerns about low-income people in rural Georgia who don’t drive, “who would have to pay someone to take them to get documents they need and get photo ID”.

Because of the costs associated with obtaining these IDs, Butler called voter ID laws a “poll tax”, adding, “I think it’s a new Jim Crow”.

A plethora of tactics

States have employed many different methods in attempting to purge citizens from the ballot.

Some remove voters from the rolls if they haven’t voted in a certain number of years; if there is a discrepancy involving the state’s information regarding a particular voter in different state databases; if the voter is not believed to be a U.S. citizen but actually is; if the voter is believed to be a disenfranchised felon but actually is not; or if mail sent to the voter’s address is returned by the post office.

Meanwhile, in the last two years, Florida and Iowa have reversed executive orders issued by previous governors and made it more difficult again for ex-felons to regain their voting rights.

“In Iowa, in 2005, Governor Vilsack issued an executive order that automatically reinstated voting rights for all ex-offenders in the state. Prior to that, Iowa was a permanent disenfranchisement state; the only way around that was a gubernatorial pardon,” Marc Mauer, executive director of the Sentencing Project, told IPS.

80,000 voters were reinstated in Iowa “in a stroke of a pen”, Mauer said.

But in 2011, a Republican governor was elected, and in his first month of office issued an executive order overturning the policy, Mauer said, noting that the 80,000 remained reinstated.

Similarly, in Florida in 2007, Governor Charlie Crist, a moderate Republican, changed the rules of what is called “executive clemency” to make it easier, in some cases nearly automatic, for ex-felons to regain their voting rights. As a result, 130,000 people regained the right to vote.

But in 2011, the new Governor, Rick Scott, a right-wing Republican, reversed the policy.

Mauer says other states have not done the same. “I think it’s more a quirky bump than a national trend,” he said.

Restriction and intimidation

At least five states have restricted early voting, including Florida, Georgia, Ohio, Tennessee and West Virginia.

In Georgia, for example, the legislature reduced early voting from 45 days to 21. “The Georgia Legislature changed it because too many people weren’t discouraged,” Butler said.

Florida has also restricted the number of days of early voting from 14 to eight, including eliminating voting on the Sunday before the election, when black churches have traditionally mobilised members to vote in an event known as Souls to the Polls.

Butler also told IPS of voter intimidation tactics going on in Georgia.

“In Savannah, this organisation True the Vote has been telling voters in line that if you hadn’t voted since 2008, you are not eligible to vote, giving out erroneous information,” Butler said. In Georgia, one would have had to not voted since 2004 to now be off the rolls.

“Those things are there because of voter suppression. Some people [in Savannah] got upset and left because they thought these people knew what they were talking about,” Butler said.

“True the Vote has challenged some people at the Atlanta University Centre and saying they couldn’t vote because they were students and were out-of state,” Butler said.

True the Vote, which has trained and dispatched “elections observers” in at least twenty states, claims that concerns about voter fraud – that is, voters illegally voting – motivate their tactics. Indeed, elected officials have cited voter fraud as the reason they have passed voter ID laws.

However, a study by News 21, a reporting project of Carnegie Corporation of New York and the John S. and James L. Knight Foundation, examined public records and found that, only ten cases of in-person voter fraud have been reported in over the last decade, and that none have been substantiated.

In Ohio, a crucial swing state in the Presidential Election, at least ten billboards warning potential voters that “VOTER FRAUD IS A FELONY!  3 ½ YEARS AND $10,000 FINE,” have appeared in Democratic-leaning Cleveland.