Appeals in these cases are expected, but our court system is sending a strong message about voter suppression
In 2013, the Supreme Court gutted the Voting Rights Act of 1965 in Shelby County vs. Holder, removing the preclearance requirements for states and counties known for playing fast and loose with voting rights. After this decision, many states instituted restrictive and discriminatory voter suppression laws that disproportionately harmed communities of color, poor people and those living in urban areas.
Preclearance is the “Advance approval by a federal court or the Department of Justice for changes to voting regulations in certain states under the 1965 Voting Rights Act.”
In the past two weeks, federal courts have struck down these laws in six states: North Carolina, considered by many analysts to be the state with the worst laws; Texas, home of the most restrictive voter ID law; North Dakota, one of five states with lawsuits filed based on discriminatory voting rules focused on Native Americans (the others are Utah, South Dakota, Arizona and Alaska); Wisconsin and Michigan where the laws may have targeted urban communities; and Kansas, home of Secretary of State Kris Kobach, the face of the modern voter suppression movement in the United States.
In every case, the court decisions cited specific and intentional racialized motivations and strategies built into the laws.
Let’s recap.
NORTH CAROLINA
“We cannot ignore the record evidence that, because of race, the legislature enacted one of the largest restrictions of the franchise in modern North Carolina history.” – Judge Diana Motz, 4th Circuit writing for the unanimous decision
North Carolina, where 40 of its 100 counties fell under the preclearance provision, moved fast to make changes. One month after Shelby County v. Holder, they passed legislation requiring voter photo identification cards excluding student and municipal government IDs; eliminating one week of early voting, Sunday voting and same-day voter registration and ending the opportunity to vote anywhere in your county, not just sites near your home. These laws decimated reforms to the voting process that increased voter registration and turnout in African American communities, disenfranchising many people of color and changing electoral outcomes.
On July 29, a three judge panel on the Fourth Circuit Court of Appeals found the law largely unconstitutional and racist. Again, according to Judge Motz, many strategies in the 2013 bill “target African-Americans with almost surgical precision.”
TEXAS
On July 20, the Fifth Circuit Court of Appeals struck down the strictest voter ID law in the nation, first used in 2013. Introduced as SB 14, Gov. Rick Perry signed the law in 2011, and it was implemented after the Shelby County vs. Holder decision. This law required government issued IDs, like a driver’s license or other government issued cards, passport, military ID, US citizenship certificate and concealed weapon permit. Student photo IDs were not allowed.
Judges in this decision said this discriminated against Black and Latino voters.
“The record shows that drafters and proponents of SB 14 were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact,” Judge Catharina Haynes wrote for the majority.
Ruled discriminatory, the law remains in place. According to the courts, Texans still need to be able to vote and will have the opportunity to do so with or without IDs; they can use their voter registration cards or vote with an affidavit. Getting the word out to voters will be important in Texas.
NORTH DAKOTA
In 2013, North Dakota moved from allowing many forms of identification to four: driver’s licenses, non-drivers ID card issued by the state, tribal government issued ID card or alternative forms of ID chosen by the secretary of state. In 2015, college IDs and military IDs were removed as options for the secretary of state.
These restrictions limited the voter participation of Native Americans who are more likely to use post office boxes and not residential addresses, may not have copies of their birth certificates and are less likely to have driver’s licenses.
On August 1, U.S. District Judge Daniel L. Hovland issued a temporary restraining order, stating “undisputed statistics and studies support the finding that, given the disparities in living conditions, it is not surprising that North Dakota’s new voter ID laws are having and will continue to have a disproportionately negative impact on Native American voting-eligible citizens.”
WISCONSIN
“The state’s current process for getting free IDs to people who lack such documents [as birth certificates]…is unconstitutional and ‘a wretched failure’ because it has left a number of overwhelmingly black and Hispanic citizens unable to obtain IDs.” – Judge James Peterson
On July 29, U.S. District Court Judge Peterson turned over several aspects of the voter laws including: decrease in early voting days from 30 t0 12; cities with a single site for early voting; increased number of days someone must live in their ward before from 10 to 28; dorm lists with citizenship information; and not sending absentee ballots by email or fax.
Judge Peterson also wrote the elimination of early voting on nights and weekends worked to “suppress the reliably Democratic vote of Milwaukee’s African Americans. The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities.”
MICHIGAN
Michigan’s ban on straight-ticket voting was stopped by a temporary injunction on July 28. Under the ban (implemented in January, 2016), voters could select individual candidates but could not vote for the entire slate in a single box.
Citing a report by the U.S. Census Bureau, U.S. District Court Judge Gershwin A. Drain, said states have the authority to organize elections but cannot violate the constitutional rights of citizens. He found the law “presents a disproportionate burden on African Americans’ right to vote.”
The report cited by Judge Drain, shared a direct correlation between the use of straight-party voting and the number of African Africans living in a particular community. The majority African American cities have more than 75% straight-party voting rates.
KANSAS
On July 29, Shawnee County district judge Larry Hendricks blocked an administrative rule from Kansas secretary of state Kris Kobach directing county officials to only count the ballots of “motor voters” who had not provided proof of citizenship in federal elections, not state or local ones.
Judge Hendricks required all ballots counted in all elections. The first test will be a state primary election on August 2. Kobach’s original administrative rule was to be in place until after the November election.
Kobach has long used voter suppression tactics focusing on voter requirements to present proof of citizenship when registering. Kobach created the two tiered system, which Judge Hendricks effectively struck down, in 2013. The system affected nearly 20,000 Kansas voters. He has also worked in other states like Nebraska and Indiana to encourage similar voter disenfranchisement efforts.
Appeals in these cases are expected, but our court system is sending a strong message. Sold as protection against voter fraud (proven to not be a real thing over and over), these laws and policies were designed to disenfranchise communities of color. They are unconstitutional and will not stand.
To quote Kansas Judge Hendricks “There is no right that is more precious to a free country than having a voice in an election.”
Links to full copies of the decisions:
Terri A. Johnson is the Executive Director at the Center for New Community.