Everything That’s Happened Since Supreme Court Ruled on Voting Rights Act

Last year, we wrote exten­sively about photo ID laws and the Supreme Court’s deci­sion to strike a key sec­tion of the Vot­ing Rights Act of 1965. Now, with guber­na­to­r­ial elec­tions in New Jer­sey and Vir­ginia, and the debt ceil­ing and health­care debates already shap­ing the 2014 midterms, we’re revis­it­ing vot­ing poli­cies to see which states have enacted tougher restric­tions since the Supreme Court rul­ing in June.

Remind me — what is Sec­tion 5 of the Vot­ing Rights Act?

Under the Vot­ing Rights Act, states and local­i­ties with a his­tory of racial dis­crim­i­na­tion needed to get per­mis­sion from the fed­eral gov­ern­ment to enact any changes to their vot­ing laws, in a process called “pre­clear­ance.” As of June 2013, nine states, mostly in the South — Alabama, Alaska, Ari­zona, Geor­gia, Louisiana, Mis­sis­sippi, South Car­olina, Texas and Vir­ginia — needed to get any new vot­ing laws pre-approved. Some coun­ties and town­ships in Cal­i­for­nia, Florida, New York, North Car­olina, South Dakota and Michi­gan were also sub­ject to preclearance.

Sec­tion 5 first applied to states that imposed lit­er­acy tests or other unfair devices, and had low voter reg­is­tra­tion or turnout. Con­gress later expanded the law to add juris­dic­tions with siz­able minor­ity pop­u­la­tions and English-only elec­tion materials.

States and local­i­ties could “bailout,” or get off the pre­clear­ance list, after 10 years of elec­tions with­out any prob­lems. Sev­eral smaller juris­dic­tions bailed out over the years, includ­ing parts of Con­necti­cut, Idaho, Maine, Mass­a­chu­setts, Wyoming, Hawaii, and Colorado.

Of course, some of the biggest vot­ing law bat­tles of the 2012 elec­tion were in states not cov­ered by Sec­tion 5 at all, such as Penn­syl­va­nia and Ohio.

What did the Supreme Court strike down in Shelby County v. Holder?

The Supreme Court decided, 5–4, that the pre­clear­ance for­mula was uncon­sti­tu­tional under the 10th  Amend­ment, which gives states the power to reg­u­late elec­tions. The Court ruled that the cov­er­age for­mula was “based on 40-year-old facts hav­ing no log­i­cal rela­tion to the present day.”

From the deci­sion:

One impor­tant tech­ni­cal point: the Supreme Court actu­ally left Sec­tion 5 of the Vot­ing Rights Act — the part of the law that describes how pre­clear­ance works — intact. Instead, the Court struck down Sec­tion 4, which explains which states and local­i­ties are sub­ject to pre­clear­ance. If Con­gress amends Sec­tion 4, the Jus­tice Depart­ment can start enforc­ing Sec­tion 5 again.

Why does this matter?

While lit­er­acy tests are a thing of the past, vot­ing rights advo­cates say that statutes that limit early vot­ing and reg­is­tra­tion, require vot­ers to show photo ID, and purge voter rolls still dis­pro­por­tion­ately affect poor and minor­ity voters.

The Supreme Court’s June 2013 deci­sion also effec­tively shifted the bur­den from states to cit­i­zens. Before, a state sub­ject to pre­clear­ance had to demon­strate that a new vot­ing law was not dis­crim­i­na­tory and let vot­ing law experts in the Jus­tice Depart­ment eval­u­ate it before it could be imple­mented. Now it is up to vot­ers to chal­lenge vot­ing laws by fil­ing law­suits under Sec­tion 2 of the Vot­ing Rights Act, which pro­hibits racial discrimination.

But most court cases involv­ing Sec­tion 2 have been lim­ited to redis­trict­ing, not other con­tro­ver­sial vot­ing mea­sures, says Yale Uni­ver­sity law pro­fes­sor Heather Gerken.

With redis­trict­ing, there’s always one very wealthy polit­i­cal party or another who can hire some very good lawyers and go into court and chal­lenge it,” Gerken said. “But a lot of the types of things that were chal­lenged under Sec­tion 5 were smaller ques­tions, like, u2018Can you change a polling place? Can you shut down early vot­ing hours in ways that might affect the black com­mu­nity?’ There are things smaller than redis­trict­ing that can fall through the cracks.”

What have pre­clear­ance states done since the Supreme Court ruling?

a NORTH CAROLINA: Two months after the Supreme Court deci­sion, North Car­olina passed a num­ber of mea­sures, includ­ing strict new photo ID require­ments. The law also elim­i­nates same-day voter reg­is­tra­tion, short­ens the early vot­ing period by seven days, and spec­i­fies that bal­lots cast at the wrong polling sta­tion will be thrown out. Some changes will be phased in start­ing in 2014, and the photo ID pro­vi­sion goes into effect in 2016.

The North Car­olina NAACP and a civil rights group called the Advance­ment Project have filed a law­suit chal­leng­ing the changes. The Jus­tice Depart­ment also filed a suit of its own. But the suits ven­ture into some new legal territory.

What North Car­olina did was def­i­nitely at the extreme of prac­tices in this coun­try,” Gerken said. “So if any­thing is vul­ner­a­ble to a suit, it’s likely to be the North Car­olina law. But again, the case law was built around redis­trict­ing cases. It wasn’t built around this kind of work.”

q TEXAS: Last year, a fed­eral court rejected Texas’ voter ID law, call­ing it “the most strin­gent in the coun­try.” The panel also rejected the state’s redis­trict­ing maps, find­ing that they pro­tected white incum­bents while alter­ing dis­tricts with minor­ity incumbents.

But on the very day of the Supreme Court rul­ing, Texas Attor­ney Gen­eral Greg Abbott said the state would “imme­di­ately” enact both measures.

The photo ID law requires vot­ers to present an approved form of photo iden­ti­fi­ca­tion, where before they could present mail, util­ity bills or other proof of voter reg­is­tra­tion. The Jus­tice Depart­ment had refused to approve the law based on the state’s find­ings that His­panic reg­is­tered vot­ers were far less likely to have the approved photo IDs. The new law also requires the photo ID pre­sented on vot­ing day to match the state’s voter rolls — com­pli­cat­ing vot­ing for some mar­ried women and oth­ers with name changes.

The Jus­tice Depart­ment has filed a law­suit against the newly enacted photo ID require­ments and joined an ongo­ing law­suit against the dis­puted redis­trict­ing maps.

I FLORIDA: After the Supreme Court rul­ing, Florida resumed its plans to remove non-citizens from its voter rolls using the fed­eral SAVE (Sys­tem­atic Alien Ver­i­fi­ca­tion for Enti­tle­ments) data­base. The Depart­ment of Home­land Secu­rity data­base helps gov­ern­ment agen­cies check the immi­gra­tion sta­tuses of peo­ple apply­ing for gov­ern­ment ben­e­fits like dri­vers’ licenses, hous­ing assis­tance, or Med­ic­aid.

But oppo­nents of Florida’s mea­sure say that SAVE data is faulty and not meant for elec­tions, and that using the data­base to ver­ify voter rolls will dis­en­fran­chise eli­gi­ble vot­ers. (Col­orado leg­is­la­tors rejected a bill to purge rolls based on SAVE data for this very rea­son, but that didn’t stop Sec­re­tary of State Scott Gessler from mov­ing ahead with the plan.) The Miami Her­ald found that Florida vot­ers flagged for ver­i­fi­ca­tion were dis­pro­por­tion­ately His­panic, and most turned out to be cit­i­zens. The Depart­ment of Jus­tice has also said that SAVE is not meant to be “a com­pre­hen­sive and defin­i­tive list­ing of U.S. cit­i­zens,” espe­cially since it doesn’t include data about peo­ple born in the United States.

A non­profit group has chal­lenged the law, but a fed­eral court dis­missed the law­suit after the Supreme Court ruled that Florida was no longer sub­ject to pre­clear­ance. Another group has appealed a sim­i­lar case to the 11th Circuit.

s VIRGINIA: Vir­ginia passed a num­ber of vot­ing laws this spring that seem likely to go into effect in wake of the Supreme Court ruling.

The Vir­ginia leg­is­la­ture passed a photo ID law last year (which the Jus­tice Depart­ment approved), but the more recent mea­sure goes fur­ther to limit what kinds of voter iden­ti­fi­ca­tion are accept­able. Vot­ers can no longer show util­ity bills, bank state­ments, gov­ern­ment checks or pay­checks before they vote, but they can get an ID for freeif they don’t already have one.

The new laws also require the Vir­ginia State Board of Elec­tions to remove inel­i­gi­ble vot­ers by com­par­ing state voter rolls with the SAVE data­base and other states.The Demo­c­ra­tic Party of Vir­ginia has sued the state over the inter­state cross­checks, con­tend­ing that the data­base has erro­neous infor­ma­tion and the law will dis­en­fran­chise poor, elderly and minor­ity vot­ers, but a fed­eral judge rejected the suit for lack of evi­dence. As of Oct. 17, the Board of Elec­tions had already purged more than 38,000 vot­ers.

n SOUTH CAROLINA: In Octo­ber 2012, a fed­eral court blocked the imple­men­ta­tion of South Carolina’s photo ID law until 2013. The court found that although the law was not dis­crim­i­na­tory, there was not enough time to imple­ment changes before the 2012 elec­tion. South Car­olina Attor­ney Gen­eral Alan Wil­son said the Supreme Court rul­ing now allows states to “imple­ment rea­son­able elec­tion reforms, such as voter ID laws sim­i­lar to South Carolina’s.”

Y MISSISSIPI: Sec­re­tary of State Del­bert Hose­mann said Mis­sis­sippi will enact a strict photo ID law by 2014. The state says it will pro­vide free trans­porta­tion to gov­ern­ment offices where vot­ers will be able to obtain free photo IDs.

B ALABAMA: Sec­re­tary of State Beth Chap­man said Alabama would also enact changes to its photo ID law by 2014. Like Vir­ginia, Alabama used to accept other kinds of non-photo iden­ti­fi­ca­tion, such as util­ity bills and Social Secu­rity cards. But the new law requires vot­ers to present photo IDs (the state will also pro­vide free voter IDs to those who don’t have them). Leg­is­la­tors passed the mea­sure in 2011, but Alabama stalled in sub­mit­ting the law for preclearance.

D ARIZONA: The Supreme Court issued another sig­nif­i­cant rul­ing on vot­ing laws this sum­mer: In Ari­zona et al. v Inter­tribal Coun­cil of Ari­zona, Inc. et al., the Court ruled that Ari­zona, for­merly a pre­clear­ance state, could not uni­lat­er­ally require vot­ers to show proof of cit­i­zen­ship before reg­is­ter­ing to vote in a fed­eral elec­tion. But the Court said Ari­zona could sue the Elec­tion Assis­tance Com­mis­sion to get the fed­eral voter reg­is­tra­tion form amended to require proof of cit­i­zen­ship. Now, both Ari­zona and Kansas have sued the commission.

In case their legal chal­lenges are unsuc­cess­ful, the states are set­ting up two-tiered sys­tems of voter reg­is­tra­tion, requir­ing proof of cit­i­zen­ship for state and local races but not fed­eral ones. So far, Kansas has sus­pended reg­is­tra­tion for about 17,500 vot­ers until those they sub­mit proof of citizenship.

o SOUTH DAKOTA: Four Direc­tions Inc., a Native Amer­i­can vot­ing rights group, has asked the Jus­tice Depart­ment to inves­ti­gate why Sec­re­tary of State Jason Grant has so far refused to use fed­eral money to fund satel­lite vot­ing cen­ters for reg­is­tra­tion and early vot­ing on some Native Amer­i­can reservations.

What about non-preclearance states?

The 35 states that were not sub­ject to any kind of pre­clear­ance were unaf­fected by the Supreme Court deci­sion. But sev­eral of those states have also moved to tighten vot­ing rules this year.

C ARKANSAS: This spring, Repub­li­can leg­is­la­tors over­rode the governor’s veto to pass a law requir­ing vot­ers to show photo IDs. If vot­ers don’t have them, they can cast pro­vi­sional bal­lots and return with IDs by the Mon­day after the elec­tion. The state will also pro­vide free IDs to peo­ple who do not already have them.

L IOWA: In late March, Iowa imple­mented an admin­is­tra­tive rule allow­ing Sec­re­tary of State Matt Schultz to begin a voter roll purge using the SAVE data­base. Activists have sued Schultz in an attempt to stop the purge.

O INDIANA: In May, Indi­ana enacted a law requir­ing offi­cials to check voter rolls for indi­vid­u­als reg­is­tered to vote in other states. The advo­cacy group Project Vote wor­ries that the mea­sure could lead to voter purges.

MONTANA: After Demo­c­ra­tic Gov. Steve Bul­lock vetoed a mea­sure that would have elim­i­nated same-day voter reg­is­tra­tion, the leg­is­la­ture decided to let the peo­ple decide. In 2014, Mon­tana cit­i­zens will vote in a ref­er­en­dum on whether to keep same-day reg­is­tra­tion. Back­ers of the mea­sure say it will cut down on lines at the polls.

c NEBRASKA: This spring, Nebraska short­ened early vot­ing by 10 days. Vot­ers will still be able to vote in the 25 days lead­ing up to an election.

b NORTH DAKOTA: North Dakota is the only state with­out voter reg­is­tra­tion. In April, the state strength­ened its voter ID law to no longer allow peo­ple with­out photo ID to vote by affidavit.

p TENNESSEE: This spring, Ten­nessee passed a bill restrict­ing the kinds of IDs that can be used to vote. Pre­vi­ously, vot­ers could show stu­dent IDs, out-of-state IDs, library cards, or any other IDs issued by coun­ties or munic­i­pal­i­ties. Now only photo IDs issued by the state of Ten­nessee or the fed­eral gov­ern­ment are accept­able. The Green Party of Ten­nessee has sued the state over the law.

So, where does all of this leave the Vot­ing Rights Act?

The Supreme Court left it up to Con­gress to write new pre­clear­ance cri­te­ria. In a July hear­ing, House Repub­li­cans showed lit­tle inter­est in rewrit­ing Sec­tion 4. But Sen­ate Judi­ciary Com­mit­tee Chair­man Patrick Leahy, D-Vt., says there’s actu­ally quiet Repub­li­can sup­port for the issue. Rep. Jim Sensen­bren­ner, R-Wis., made head­lines when he pub­licly sup­ported restor­ing the law.

There is at least one Repub­li­can, and you’ll find out in the future a lot more, that is com­mit­ting to putting life in this most impor­tant civil rights act that got a stab in the back from the Supreme Court,” Sensen­bren­ner said.

Gerken, the law pro­fes­sor, isn’t opti­mistic that Con­gress will come up with a new Sec­tion 4 for­mula. But she said there are other actions Con­gress could take. For exam­ple, she has advo­cated that Con­gress adopt an “opt-in” approach and allow civil rights groups to file sim­ple com­plaints for the Jus­tice Depart­ment to inves­ti­gate. Then the agency could halt the imple­men­ta­tion of dis­crim­i­na­tory laws as necessary.

Yale law pro­fes­sor Travis Crum has also sug­gested a “bail-in” mea­sure, by which Con­gress could instead strengthen Sec­tion 3 of the Vot­ing Rights Act, let­ting courts put states under pre­clear­ance if their vot­ing laws vio­late the 14th or 15th amendments.

As part of the Jus­tice Department’s law­suits against Texas and North Car­olina, the fed­eral agency has asked the courts to put those states back under pre­clear­ance.

This post will be kept up-to-date. Has your state or local gov­ern­ment restricted vot­ing rights since June 2013? Tweet at me, email me at kara.brandeisky@propublica.org or leave a com­ment below.



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