THE VOTING RIGHTS UMBRELLA
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THE VOTING RIGHTS UMBRELLA
The consequences of Shelby County v. Holder have been dramatic. The decision has enabled states to implement voting changes that had previously been
blocked by Section 5, and further emboldened others across the country that
had been moving forward with their own voting restrictions since 2010, including passing strict photo identification laws, cutting early voting periods, and requiring more stringent documentation for registration. The Brennan Center for
Justice has found that race appears to be a significant motivating factor in states
that have introduced such restrictive laws since 2010. Seven of the eleven states
with the highest African-American turnout in 2008 have implemented new restrictions, as have nine of the twelve states with the largest Hispanic population
growth from 2000 to 2010. North Carolina, for example, experienced a 111% increase in Hispanic population growth and a twenty-one percent increase in African American population growth between 2000 and 2010. Within months of
Shelby County v. Holder, the state legislature passed new legislation to cut the
early voting period, eliminate same-day registration and voting during the early
voting period, and set strict voter identification requirements.
Texas offers one of the most extreme examples of voter suppression in the
wake of Shelby County v. Holder. In 2011, the state passed the nation’s harshest
law requiring people to show photo identification in order to vote. The law
seemed carefully crafted to slice the electorate: it would not allow a University
of Texas ID to be used for voting, but would, however, recognize a concealed
handgun license. The law was then blocked from implementation under Section
5 of the Voting Rights Act. Within hours of the Supreme Court’s decision in
Shelby County v. Holder, the state announced it would put the restrictions into
effect. The Justice Department and voting rights groups challenged the law. After a nine-day trial, federal judge Nelva Gonzalez Ramos issued a powerful 147-
page opinion. The law, she ruled, “creates an unconstitutional burden on the
right to vote, has an impermissible discriminatory effect against Hispanics and
African-Americans, and was imposed with an unconstitutional discriminatory
purpose. The Court further holds that [the Texas law] constitutes an unconstitutional poll tax.” She found that 608,000 voters simply did not have the required form of ID. Despite this powerful factual record, the Supreme Court
emailed out an early Saturday morning decision allowing it to remain in effect
for the 2014 election in an emergency ruling.
It is worth noting that the new voting requirements coincide with aggressive efforts in some states to use redistricting practices—designed to ensure that
African American voters had the opportunity to elect some officials of their
own race—to dilute the impact of their votes by concentrating them so heavily
in a few districts that as a practical matter they can influence only elections in
districts dominated by their own race. This compounds already existing problems with gerrymandering and redistricting. For example, in 2012, the total
votes for Democrats in the House of Representatives exceeded the total votes
for Republicans in North Carolina and Virginia. But North Carolina’s congressional delegation had nine Republicans and four Democrats, while Virginia’s
had eight Republicans and four Democrats. In 2012, Democratic House candidates won more votes in Pennsylvania, but the legislature drew electoral lines so
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YALE LAW & POLICY REVIEW 33:383 2015
Republicans won thirteen of eighteen U.S. House seats. That same year, President Obama won Ohio, but Republicans won twelve of sixteen House seats.
The Supreme Court’s ruling in Shelby County v. Holder and the restrictive
voting laws it has enabled and encouraged are a stark reversal of nearly fifty
years of progress. Congress should restore the provisions of the Voting Rights
Act struck down by the courts and resume our historic march toward expanding the franchise.
Vast numbers of voters are disenfranchised—often by accident—by the nation’s ramshackle voting system. Today at least 50 million eligible citizens are
not registered. Many fall off the rolls when they move, as people so frequently
do in our mobile society. To make the right to vote real today requires modernization of voter registration and our election systems. Here, there is considerable room for optimism. The bipartisan Presidential Commission on Election
Administration, chaired by the counsels for the Obama and Romney campaigns, put forward an array of reforms that could improve voting without partisan rancor. For example, the Commission recommended that states should
adopt online voter registration, audit polling places for accessibility, and create
statewide standards for training poll workers.
In February 2015, Oregon enacted a new law to automatically register anyone who renews a driver’s license or state identification card. Hundreds of
thousands were registered in the first week. This could truly mark a paradigm
shift, with government assuming the responsibility to ensure that every eligible
citizen is able to vote. Such digital reforms also make it harder to commit the
already rare crime of voter fraud.
One more step can make a huge difference. A lasting legacy of Jim Crowera laws is felony disenfranchisement. Many of these provisions were imposed
in the 1890s, as southern states found ways to make it impossible for AfricanAmerican former slaves to vote. I believe that people who have paid their debt
to society, many of whom are working and paying taxes, should have the right
to vote. In 1977, as Attorney General of Arkansas, I sponsored one of the first
laws reforming this practice since the end of Reconstruction. Now, there is a
growing bipartisan consensus to end felony disenfranchisement. We should join
the democratic community in reforming these laws.
America’s tremendous diversity can make us the world’s leading force for
peace and prosperity for generations to come. But in order to give our children
and grandchildren the future they deserve, we must remove barriers to participation and opportunity, not erect them. As a nation, we owe it to the many heroes of the Civil Rights Movement who made our past progress possible, and to
all those whose future progress depends on it.
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