Backsliding & voting rights post-Shelby


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. Jimmy Dore who speaks for millions of us are tired of DINOs.

    “Hillary Presidency Worse For Progressives & America Than Trump” Try telling that to latino progressives.

  2. Blatantly partisan bullsh*t like this article are why I take periodic vacations from the internet. OMG, North Carolina is sooo horribly racisss! because they went and cutted back on the number of days for early voting! Oh waaaah! Sniffle. Sniffle. Oh thank God us social warrior Democrats are here to fight for the poor, pitiful black people!

    What garbage! How about the author of this stupid drivel take a little peeky-weeky at this website where you can see which state have absolutely NO EARLY VOTING at all— Heck, mebbe Jim Crow is still alive and kicking in those states.

    Hmmm. Ain’t those some DEMOCRATIC BLUE STATES in that number??? Like New York, Massachusetts, Rhode Island, Connecticut, Pennsylvania, etc. Heck, mebbe Jim Crow is still alive and kicking in those states. Dang! I guess I must be a really good researcher to have found this super sekrit information, huh. Or mebbe, I just didn’t start out with a partisan bias which kept me from discovering the truth.

    See, the real sin here, is that the whole argument that North Carolina has cut back on voting rights by cutting back on early voting days, falls into meaninglessness when you look at the states that don’t have it all. That is relevant information, and something the author should have been more upfront about. To not mention that is blatantly deceptive, and manipulative. But then again, being honest might not advance the lying, crooked Democratic Party narrative. And that is real object of articles like this.

    Boo! Hiss!

    Squeeky Fromm
    Girl Reporter

    1. Girl Reporter, nice to see you post again. I always enjoy your posts, although I rarely agree with them. For instance, int this series of paragraphs, you conclude that the reduction of days during which early voting can occur isn’t inappropriate but you fail to provide for your reader the basis for the reduction. The contrarians state it was intended as a form of voter suppression. So, to settle the dispute as to who’s correct, what is the actual rationale behind the reduction?

      1. Squeeky Fromme where ever did you think to add those states that don’t have recall and all the States that lost that method where the State elected delegates to the the federal congress are concerned?

        If the author would have done a modicum of research he/she would have fast discovered the Southern Democrats (slave owners) along with the Northern Democrats (slave sellers and traders) were pro slavery, anti-any sort of civil rights, pro Jim Crow laws anti cviil rights in the 1900’s including Mr. Clinton and Mr. Johnson wirth a sort of temporary hiccup where Bubba Cute Butt tried to claim the opposite.

        Along came the 2000’s and they did the same thing again then some and have sincer returned to anti civil rights but to show it’s not a racial thing this time under leadership of a black President.

        Let’s not excuse the Republicans who abandoned civil rights some time after the civil war and didn’t return to champion that cause until sometime in the 1900s but then abandoned civil rights again and joined the Democrats in the early 2000’s and worse subjecting their members to ridicule from the pro constitutionalists as they took on the role of lap dogs of the left.

        There is nothing but pro anti-civil rights, pro racism and pro sexism and trying to blame that on your own parties right wing which is the right wing of the left isn’t going to change that.

        Make a clean breast of it and admit it. “We’re one party with two sections both of which are fascist socialist, We are running scared as can be hoping people are going to find out they don’t have to vote for far left extremism and don’t have to accept all their debts.when replacing them.

        A pox on your one party system of government may it soon rot in a well deserved and repudiated grave. Fastest way, most direct and most legal way to solve the whole problem is declare a counter revolution, reject it, return to the constitution while asking those who are legally sworn to do exactly that to oversee the whole thing. May not be a sure fire way but it beats relying on the followers of Marx, Engels, and Pelosiillyni

  3. PhillyT:

    Jimmy Dore who speaks for millions of us are tired of DINOs.

    “Hillary Presidency Worse For Progressives & America Than Trump”

  4. If we’re gonna be stuck w/voting machines, they should be required to spit out a paper record that is then hand-counted. This would be one small step towards moving elections that aren’t rigged.

    Imagine a Founding Father thinking about how to have a democratic voting plan that strongly favored outcomes for other rich, White land owners. Hello, Norf Kalina.

  5. Great read. Thanks for it.

    The current year’s primary and caucus shenanigans certainly give light to as much constructive fraud as gutting the VRA ever has. There needs to be a uniform voting mechanism for all states.

    As for changing the current system, your thought was as eloquent as any, “I have zero faith.” Enough is enough.

  6. Might as well and it could be of some use. W-e’re all getting national ID anyway without or with consent so it’s a done deal.

    But let’s take soft money donations to campaigns for example. Go to the local precinct office or county clerk and register to vote. that gives you the privilege to contribute to any campaign that is on your voting ballot but also confines it to the geo-political realities of that ballot. WHAT?

    If yiou MAY NOT VOTE iyou MAY NOT contribute. is the rule., That means money can be free speech no problem within the confines of your voters ballot. Federal level no problem that’s everiyone that registered to vote. State level no problem if you reside within the state and registered and includes your States delegates to the federal government. Two Senators and One Representative. Local vote same deal.

    Number two the money donated by each campaign can only be spent in the area in which collected. Anyithing not spent is refunded. Limits? Up to the local State or local government and it’s local citizens..
    Self funding no limit.

    But what about Pacs, Superpacs and all the rest. Corporations, Unions, Foreign entities?

    IF you MAY NOT VOTE you MAY NOT Contribute.

    Something VISA or MC can be hired to do with ease. But they may not contribute that assistance.,

    WOW No more soft money coming into my area and buying the campaign or votes or anything!

    Everyone sticks to their own business and stays out of our business.

    No one is denied free speech but they have to go do that in person and it cannot cost anything, speakers fees whatever.

    Full participation by simply ‘registereing’

    Shouldn’t the non registrants….?

    Why? By not registering to vote they indicated a degree of legal disinterest but I would still not count them out completely. Why did they not register. May be some valid reasons like — these parties don’t represent me or I’m tired of having my vote stolen and given to someone else or I have No Confidence in the government or I have selected None of the Above.. Which reminds me

    WHY NOT None of the Above on every ballot?

  7. Cannot wait until the senate either confirms President Obama’s nominee or the next senate gets to confirm President Clinton’s nominee.

    It’s past time to undo all the damage done by Scalia, Thomas, and Alito.

    Rumor has it that now that Scalia is gone, Thomas will retire because he has no one to tell him what he thinks. That would be excellent news as well.

  8. If we can organize get out the vote campaigns, why not get out the identification? The entire focus is on voting but we ignore the disenfranchisement from daily life that not having id brings. It’s telling that so many groups are only focused on the political impact but never the practical impact of lack of valid identification for so many poor people in this country

  9. The Constitution does not permit a greater protection of the laws for the citizens of some states than others. Section 5 was always a political tool for the intimidation of conservative voting blocs. A half century of this selective abuse by the Progressives was not going to be ignored. Section 2 was always enough to insure fairness, without stigmatizing some Americans because of where they want to live.

  10. I thought it was interesting to see the footage from the Brexit referendum – they used actual paper ballots – not machines which can be easily tampered with. Poll workers then counted them with observers on hand – a transparant process. Why can’t we do this? Unless one does a selfie before pushing the button in the booth there is no proof – why don’t we leave with a printed receipt in hand?

    The shenanigans in AZ, NY, MA and CA (2 million votes reportedly left to be counted??) are vivid reminders that voting is rigged.

    Sigh, no matter how the general (s)election turns out at least more folks have been paying attention.

  11. Only problem is then the other gringos would invade Mexico and ruin it too.

  12. The government doesn’t support the citizens they can get their taxes from the illegals eat frijoles and go bark at the moon. I’m beginning to think zero voter participation is a fine idea. Maybe transfer the capital to become a Department of Mexico with a branch in San Jose PR.

  13. As a former resident of NY and a current resident of Arizona the voting process in NY was cumbersome to say the least. In NY you had to apply in person for an absentee ballot with a valid reason for not being present to vote. In AZ you can opt to have all your voting done by mail. In NY you did not have to present an ID but they did compare your signature to a signature from decades previous to verify your identity In NY they also change voting places often and the times are also variable. In NY all the voting is done on election day. I question why NY seems to attract no notice to their rules as “voter suppression” just the evil South.

    1. I question the Oregon system which preceded Arizona and now has regressed further by sending out ballots no matter how old or how untested the address. Both are open to voter fraud with no attempt at accomplishing anything except meaningless numbers. I can see why the non voter numbers keep climbing. What’s the point? Especially when fraud and tampering is invited, aided, and abetted by the government in the name of what? Making sure joselitos and josefina de Chiapas with six months this side of the border can, with the help of their friendly La Raza agent get to vote right away while they balk at getting ballots mailed out to members of the military. For New York substitute de Ponce. There really is getting to be less and less reason to participate or even have voting at all.

  14. I did fill out two polls today and change my registration to Libertarian (reference yesterday.) Who knows maybe some of this will see the light of day if we can pry open the process to include real people.

    NJ as a state with enough land to make a western county is historically corrupt. I can’t imagine the mind set it takes to live there. Worse they don’t even have sidewalks.

  15. We know the past history of NC and I know the history of Jersey City , NJ where citizens voted early and often and deceased citizens voted 🤔 By absentee ballots. The NC law change ( & yes it was backdoored ) created reasonable voting requirements that apply to the entire electorate . In no way discriminatory except against the fraudulent voter of any party affiliation .

  16. While we’re all tightly focused on protecting votes at the front end what’s being done to protect votes AFTER the ballots are counted? I’m referring to the massive vote inherent in Winner Take All. Doesn’t matter who won or by how much my vote is my vote is my vote and no SOB has the right to change MY VOTE and give it to someone else. I don’t suddenly get all happy with the one’s I didn’t vote for and join the party. Between winner take all, money as free speech and tightly controlled ballots what is the point of voting and why should I not then give my vote to None Of The Above by NOT voting and then NOT Registering which at least shows my disgust with rigged voting systems. Some may say it’s a waste. I say it’s a way of saying screw the system that doesn’t represent me and then has the gall to steal MY vote. It says I have no confidence in this government and it says YOU do not represent me no matter how many votes you steal.

    I’m on my last try this time. If my vote gets tampered with again I’m joining the 46% who have had enough with this phony rigged election crap. Yes it’s all part of violation of due process, freedom of speech and voting is a form of speech unlike money and several other violations of my rights.

    SCOTUS WAKE UP! You can’t give a right not granted by stealing four or five other rights.

Comments are closed.