Backsliding & voting rights post-Shelby

VRApic

Cara L. Gallagher, Weekend Contributor

Backsliding. Justice Ginsburg warned of this in her famous Shelby County v. Holder dissent in 2013. Eliminating Section 4 of the 1965 Voting Rights Act, the pre-clearance requirement for states that had a history of suppressing minority votes, would result in a return to racial discrimination and disenfranchisement, Ginsburg said. Prior to Shelby, states with such records had to get approval from either the Department of Justice or the D.C. Circuit Court of Appeals before changing any voting laws under Section 5 of the VRA.

Was her warning heeded?

Not in North Carolina. This is a state that didn’t even wait to read her dissent, or likely the entirety of the majority decision, as they radically changed voting laws on the same day Shelby was decided.The backsliding in North Carolina did not come in the forms of first-generation voter suppression pervasive during the pre-VRA era like poll taxes, literacy tests, or banning entry to polling places. HB589, passed swiftly by the NC legislature and signed by Governor McCrory, required strict forms of voter identification, shortened the early voting period from 17 to 10 days before election day, eliminated same-day registration, prevented out-of-precinct ballots from being counted, and ended a successful pre-registration program for 16 and 17-year olds.

Alas, the 5-4 majority focused only on the progress made since the VRA was created saying “history did not end in 1965.” The Section 4 formula used to determine whether a state needed pre-clearance before they could change any of their voting policies was deemed antiquated, despite a reauthorization of the Act in 2006 by a nearly unanimous Congress (98-0 in the Senate, 390-33 in the House). Congress could and should get to work recalculating appropriate formulas for the states to curb vestiges of disenfranchisement based on racial discrimination. As a remedy, the Chief Justice reminded voters that if they experienced such discrimination they could always file a Section 2 lawsuit “which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.”

Fast forward three years later, Congress did what they always do (nothing) and while Section 2 claims pop up around the country, for those without the means to sue, it feels a bit too much like 1965.

According to Allison Riggs, an attorney for the Southern Coalition for Social Justice, North Carolina “picked up right where history left off in 1965.” HB589 not only disenfranchised hundreds of voters, but the legislature knew the law would have a disparate impact on racial minority voters. Riggs, along with two other attorneys defending the NAACP and North Carolinian voters, appeared in the 4th Circuit Court of Appeals June 21, 2016 in the first significant challenge to Shelby by a state that was once subject to the pre-clearance requirement. In a highly technical 80+ minute oral argument, the three women challenged advocates for the state of North Carolina, Thomas Farr and Alexander Peters, before a three-judge panel.

Most of the questions for both sides came from Obama-appointee Judge James Wynn and Clinton-appointee Judge Diana Gribbon Motz. Judge Henry Floyd, a George W. Bush appointee, spoke the least but offered the shortest, most critical assessment of the case to Mr. Farr. He said, “There was a surge in African-American voter registration ten years prior. The law changed, adversely affecting them, which would be the motives to protect your own political interests. The Republican Party got control of the House, Senate, and the Governorship, and the opportunity came to change those pretty liberal voter registration provisions with Shelby, and it happened on the same day Shelby was decided. That looks pretty bad to me in terms of purposeful discrimination.

Thomas Farr’s response was “I hope that I can persuade you that it was not a nefarious thing” and he further challenged the premises of Judge Floyd’s assessment.

It was clear from the judges questions and the lawyers  answers that, as the first batch of post-Shelby cases move out of the states and into the federal courts, few if any similar precedents exist for the judges to defer to.

The timeline issue was of great concern to both sides during oral arguments. On the one hand, Ms. Riggs assured the judges “there’s ample time” for them to issue a ruling and for the NC Board of Elections to set up systems to provide voter education and new registration policies. Judge Motz asked Mr. Peters if there is any way the judges could issue an opinion that would do anything given the timeline? His response was “No, except for pre-registration.” Election official training is already set for August 8-9th and there are only seven weeks before those rules and materials are sent out.

The added pressure of the timeline and proximity to the elections makes this case ripe for a hasty decision that will no doubt accelerate the losing side’s request to appeal to the Supreme Court. Although, by the time the SCOTUS begins its next term, there will only be four weeks until the election.

The Supreme Court tossed the VRA back to Congress to rewrite in 2013, but that won’t happen with this (or seemingly any) Congress. States will always move much faster on such issues than Congress ever could, and let’s be honest, if they can’t reach a compromise on gun policies immediately after the worst terrorist attack/hate crime/shooting in more than a decade, I have zero faith.

I suppose giving some credit to Congress, a couple bipartisan bills to rewrite the Voting Rights Act (VRAA) have been proposed, but never materialized. Once again, House and Senate, thanks for nothing trying.

The only way we’ll know how much we’ve slid back to 1965 is if the justices tells us if/when this case is appealed to the Supreme Court.

This case is North Carolina State Conference of the NAACP v. Patrick McCroryA decision is expected in the coming weeks.

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

34 thoughts on “Backsliding & voting rights post-Shelby

  1. @Steve Groen

    I don’t care what the reason was. If “early voting” isn’t a necessary part of a voter’s “rights”, ala New York and Massachusetts, it is irrelevant why it was simply reduced in North Carolina.

    If the contrarians wish to claim “voter suppression” in NC, then let them explain why no early voting at all in New York and Massachusetts isn’t also Voter Suppression, and a much more alarming form of it. IMHO, excess early voting is a target rich environment for fraud and ballot stuffing. Not to mention, an extra burden and cost to the state.

    Look at that chart. Some of those blue states even require an excuse for absentee ballots. And think about this— conceptually, anything which restricts the time and place and manner of voting is in a cosmic sense, a form voter suppression. The mere act of having a polling place, as opposed to letting people vote in any old bar or strip club, is going to suppress the vote to some degree. If people used to vote in a cat house, and the state closes down the bordellos, then isn’t there suppression?

    Requiring a voter to be alive and breathing suppresses the vote. Why couldn’t people express their voting intention in a will, and be allowed to vote for a few elections following death? One could argue that this suppresses the vote of the elderly because they are more likely to croak, and is therefore a form of discrimination against the sick and elderly.

    But one needs to have some common sense. If it isn’t suppression for New York to have no early voting, then it is not unreasonable for North Carolina to simply cut back on the days.

    Squeeky Fromm
    Girl Reporter

    • The reason is obvious to anyone conversant with the Constitutional method of operating a Republic. Each State is responsible for setting up their own system and each citizen has the choice of living where they choose. It’s not a one size fits all fascist answer.

      Even so there are mechanisms to make portions that should be ‘nation wide’ available and implemented. It’s called by that funny little word Amendments.

      I don’t agree with all states not having recall and initiative and referendum and I damn sure don’t agree with the States deciding how to elect their delegte employees to the federal congressional gathering and then finding out they had elected them without benefit of recall and no term limits.

      It matters not under a constitutional government. As does the silly argument that all states have to offer the same arrangement. A pox on this fascist methodology.

      But for once go back and try reading the entirety or take the free of charge college level lecture course from Hillsboro instead of listening to Marx and Engels and Pelosillyni. Had you done so the question would never have occurred an the answer would be apparent.

      Under the present system of government ….shrugged shoulders inserted ..your probably already screwed, blued and tattooed.

      • Michael A writes, “The reason is obvious to anyone conversant with the Constitutional method of operating a Republic. Each State is responsible for setting up their own system and each citizen has the choice of living where they choose. It’s not a one size fits all fascist answer. ”

        Speaking of the constitutional method and one size fits all, do you like your right to travel from state to state? Do you your right to vote for the President of the US? if so, that’s because federalism protects those and many other rights through the Supremacy Clause, and you’ve seen a one size fits all Republican form of government answer.

    • Girl Reporter writes, “I don’t care what the reason was. If “early voting” isn’t a necessary part of a voter’s “rights”, ala New York and Massachusetts, it is irrelevant why it was simply reduced in North Carolina. ”

      You should care, especially if the reason was arbitrary or intended to reduce access to the ballot, both of which are roundabout ways of showing implicit discrimination.

      Think about it. You’re the one going to law school. That’s the kind of thinking you’ll need to do, i.e., looking at both sides of the story.

      • Considering the low value of a vote in the USA and how easy it is to have it taken away and awarded to some one else. I can’t spend a lot of time worrying about conditions in a country that can’t at least protect it’s own system and seemingly doesn’t care either way.

        I’m going to give this one a pass as a lost cause due to citizen disinterest.

  2. @Steve Groan

    Hogwash. The other side doesn’t know what the motivation is either. And they don’t care. It is simply a scenario that they could shape to fit their Democratic Party narrative, so they hopped on it. That is pretty obvious to me by the way that they ignore the Blue States that don’t have early voting at all. Therefore, the issue is not early voting, but something else.

    That is why the author deceptively left out the fact that many states do not have early voting at all. C’mon, wake up! You’re too smart to fall for this sort of partisan nonsense.

    Squeeky Fromm
    Girl Reporter

  3. I liked it fine when we had a constitutional government. Right now I’d settle for the military paying attention to their oath of office.l

  4. Late, but I will still speak my piece.

    “. Eliminating Section 4 of the 1965 Voting Rights Act, the pre-clearance requirement for states that had a history of suppressing minority votes, would result in a return to racial discrimination and disenfranchisement, Ginsburg said.”

    Ginsberg is a fortune teller too?

    More like an absurd alarmist.

    When will these States ever get out of federal pre-clearance jail? Is 52 years not enough time served? Where is evidence of racial discrimination? 

    “.The backsliding in North Carolina did not come in the forms of first-generation voter suppression pervasive during the pre-VRA era like poll taxes, literacy tests, or banning entry to polling places”

    How then is “backsliding” an accurate or truthful characterization? 

    ” strict forms of voter identification, shortened the early voting period from 17 to 10 days before election day, eliminated same-day registration, prevented out-of-precinct ballots from being counted, and ended a successful pre-registration program for 16 and 17-year olds.”

    A general rule  (as all the above of course are) is by definition non -discriminatory. It applies to all, just like proof of legal age to purchase liquor or tobacco applies to all. (Yes, I’d say even a poll tax — if it were imposed uniformly — would be racially non-discriminatory, although it would discriminate economically.)

    State ID is everywhere required not only to drive, but to transact the most basic business or to receive any government benefit. This is simply not a serious concern and the people advancing it are not serious people.

    Early voting length — if any –is an administrative choice which should be up to the people of each State — really, each county.
     If  ten whole days plus election day isn’t enough time for you to vote, you just don’t really care about voting.

    I’m willing to bet nobody who favors same-day registration has ever worked an election. Elections and the equipment and procedures used in this country are complicated enough as it is. When my State mandated SDR recently, it further burdened election workers with needless complication, added an hour of training and an additional chapter to an already huge manual, and lengthened the lines of impatient voters. Isn’t long lines one of those things Democrats always point to as evidence of sinister racist (i.e., Republican) conspiracy?

    Adult life is full of responsibilities involving some degree of preparation. Registering to vote is a trivial requirement compared to many other activities people engage in daily. You can plan to be at a party with your homeboys and homegirls next weekend, you can also figure out how to register to vote. You can go to the mall to buy the latest shoes, you can stop by the city hall, ward office, DMV, library, etc, etc, to pick up that form. (In my State, voter registration forms are included in all welfare applications — so no excuses here.)
    Read a local news site or (if you’re lucky enough to still have one) a local newspaper. It will tell you to register and where.

    There are thousands of deadlines to meet in adult life which if you miss, you just miss. Elections are like buses. Get your shit together and take care of it in time. If you miss it, be prepared for next time. (Or don’t; that’s your business.)

    If you are not interested in informing yourself about the rights and rites of citizenship — or the requisite information for making your choices — perhaps you should not be voting anyway.

    “pre-registration program for 16 and 17-year-olds”

    That’s like pre-licensing kids to drive at age 13, before they’ve ever even sat behind a wheel.
    Now, civic education for 16-17-year-olds in the government schools? It would be nice. (I’m consciously echoing Gandhi’s quip after he was asked, “What do you think of Western civilization?” State-controlled “civic education” — think of the absurd oxymoron embodied in that. Why would the state teach ordinary people how to critically think about, control, or oppose the state? 

    “As a remedy, the Chief Justice reminded voters that if they experienced such discrimination they could always file a Section 2 lawsuit”

    Of course; remedy actual wrongs, not imagined future wrongs.

    As a lifelong Northerner descended from Southerners who actually were discriminated against (half a century ago), I despise the geographic bigotry that presumes to mark an entire section of the country, once and for all, as uniquely, irredeemably eviI. 
    When the books were opened on the other States — particularly northern urban machine States like Illinois and New York and Ohio — we would be forced to conclude, by similar reasoning, that all States should go to federal jail forever and every facet of elections in every State, county and precinct must be run from Washington. 
     As a person of color, I’m also deeply offended by the tacit assumptions about voters that underlie this bogus partisan war campaign disguised as a struggle against “discrimination”: 

    a) people of color are uniquely too stupid to comply with simple requirements .;
    b)  persons not sufficiently motivated to learn about and exercise their rights, should be all but forced to do so by the government;
    C) letting people act according to their own wishes and personal motivation, somehow equates to “discrimination.”

    Following this line of reasoning leads inexorably to not only mandatory registration but mandatory voting.

    Perhaps this could be done by inserting a “voter registration wall” in all mobile devices or video game consoles so the lazy and apathetic don’t have to think or even get out of bed.

    Of course, that means voting itself will have to be mandated via similar means. 

    But why stop until every last American adult — hell, every last child too — is “enfranchised,” and forced to exercise his franchise, whether he cares to or not? 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s