In the run-up to the 2012 election, there was widespread concern about a slew of restrictive voting laws passed by Republicans. But those fears mostly weren’t borne out. Courts blocked several of the worst moves before election day. And record African-American turnout suggested the assault on voting might even have backfired by firing up minority voters.
But Republicans didn’t ease off on the push to make voting harder. If anything, they doubled down. And this time around, they’ve had a lot more success as several voting restrictions are now in effect for the first time in a major election.
That’s likely to help the GOP this fall. But voting rights advocates say the bigger lesson is that current laws protecting access to the ballot just aren’t strong enough.
“This is a clear example of the need for additional federal protections,” said Myrna Perez, a top lawyer at the Brennan Center for Justice, and one of the attorneys who argued against the Texas voter ID law, which was approved for the election by the U.S. Supreme Court early Saturday morning.
That decision—which came just two days before early voting kicks off in the Lone Star State—means most of the statewide voting restrictions that in recent weeks were the subject of court fights will be in place when voters go to the polls. In addition to the Texas law—green-lighted despite a federal judge’s ruling that it intentionally discriminated against minorities—North Carolina’s sweeping voting law and Ohio’s cuts to early voting will also be in effect.
On the other side of the ledger, Wisconsin’s voter ID law was blocked by the Supreme Court, and Arkansas’s was overturned by the state’s top court.
The restrictions will give the GOP a boost in the midterms. Most critically, if North Carolina’s elimination of same-day registration, cuts to early voting, and other changes keep large numbers of blacks from the polls, they’ll benefit Thom Tillis, the Republican running against Democratic Sen. Kay Hagan in a race that could end up determining control of the U.S. Senate. Texas hosts not just a high-profile race for governor, but also a closely-fought House race, in which Rep. Pete Gallego, a Democrat, is trying to fend off a Republican challenger. And Ohio has a race for governor, too, in which a big win for incumbent John Kasich could turn him into a leading 2016 presidential contender.
But beyond the immediate political fallout, the events of recent weeks may augur even more trouble for voting rights going forward.
Texas and North Carolina moved ahead with their laws immediately after the Supreme Court’s ruling in Shelby County v. Holder, which neutered the Voting Rights Act’s “pre-clearance” provision, known as Section 5—its strongest tool. In response, voting rights groups and the U.S. Justice Department embarked on an aggressive strategy to challenge voting restrictions using a separate part of the law, known as Section 2, which bars racial discrimination in voting. They used Section 2 in Texas, North Carolina, Ohio, and Wisconsin.
It’s too soon to make a final judgment on the strategy’s success, because none of those four cases has been definitively resolved. North Carolina’s voting law and Ohio’s cuts to early voting haven’t yet even had full trials—both are scheduled for 2015—while the Texas and Wisconsin ID laws will see ongoing appeals.
In all four cases, the Supreme Court appears to have acted based on a far narrower principle—that the courts shouldn’t change the rules so close to an election, in order to minimize voter confusion. (In allowing Texas's law, the court—remarkably—appears to have seen that principle as outweighing the need to stop a law found to be a racially discriminatory poll tax.)
But the very fact that most of these laws will be in place for the election underlines what’s been lost. The point of Section 5 was to block potentially discriminatory laws from going into effect before an election, since litigation can be costly and time-consuming. Even if the Texas and North Carolina laws are ultimately struck down, the damage will already have been done, since voters will already have gone to the polls with the measures in place.
And the chances of success on the merits look uncertain. The slew of recent court rulings have made clear that, post-Shelby, different judges have different standards for determining what constitutes illegal racial discrimination under the Voting Rights Act. And waiting at the end of the process is the U.S. Supreme Court, which has hardly been a friend to voting rights lately.
Voting rights advocates say the key takeaway is that, since Shelby, we simply don’t have strong enough measures on the books to ensure access to the ballot for all Americans. But legislation to strengthen the Voting Rights Act in response to Shelby has stalled in the Republican-controlled House—the Judiciary Committee didn’t even hold a hearing on it, despite intense pressure from civil rights groups.
And Republicans look likely to intensify the campaign for voting restrictions. One sign of that was the response when Sen. Rand Paul, a potential 2016 contender, suggested the party should ease up on voter ID, to avoid further alienating black voters. After an outcry on the right, Paul was forced to walk back his comments on Fox News.
Until the GOP calculates that the campaign for restrictive voting laws is doing more harm than good to its own political standing, it’s likely to continue seeing more victories than defeats. Next up could be a push for voter ID in Ohio, the nation's most pivotal presidential swing state.
That means that those who are targets of these laws—minorities, students, and the poor, mostly—could be shut out of the process for a long time to come, damaging the legitimacy of our political system.
“We have a democracy for everyone,” said Perez. “It’s not just for the educated and those who have a flexible work schedule.”