The chances of Congress acting to fix the Voting Rights Act (VRA), which was weakened by the Supreme Court last summer, appear slimmer by the week. But lately, it looks like the landmark civil rights law might end up being strengthened in a different way: by being used.
Last Tuesday, a federal judge in Wisconsin struck down the state’s voter ID law, ruling that it violates the VRA’s Section 2, which bars racial discrimination in voting. The state has said it will appeal the ruling. Two days later, voting rights advocates filed suit against Ohio’s recent cuts to early voting, again alleging a violation of Section 2.
“I think it’s exactly what the federal courts should be doing,” said Daniel Tokaji, an election law professor at Ohio State University, referring to the Wisconsin ruling, and the potential for a similar verdict in Ohio. “When partisan politicians go too far to restrict the right to vote in an effort to serve their own ends, courts aren’t likely to look on that kindly.”
In its Shelby County v. Holder decision last June, the Supreme Court invalidated Section 5 of the VRA, which had required certain areas of the country with a history of race discrimination in voting to get federal approval before making changes to their voting systems. That left Section 2 as the law’s most important remaining provision.
Because Section 2 doesn’t stop election changes before they happen, it’s not as strong a tool as Section 5. And it hasn’t been used much in the past to stop things like voter ID laws and early voting cuts. But since Shelby, Section 2 has suddenly been pressed into service: In addition to the Wisconsin and Ohio cases, the Justice Department has used it to challenge Texas’s strict voter ID law passed in 2012 and North Carolina’s sweeping and restrictive voting law passed last year.
Advocates say court victories don't obviate the need for Congress to strengthen the Voting Rights Act. But aside from expanding access to the vote for minorities in key swing states, wins could help demonstrate that the law can still be effective in stopping the GOP's most far-reaching voting restrictions.
Election law experts say the Wisconsin ruling, issued by District Court Judge Lynn Adelman—the first ever ruling that stopped a voter ID law under Section 2—is particularly significant.
Adelman eviscerated the logic of ID measures—“virtually no voter impersonation occurs in Wisconsin,” he wrote—and laid out exactly how Section 2 can apply to voter ID, providing a potential guide for other advocates and judges.
Because minorities are more likely than whites to lack ID, Adelman wrote, the ID law “results in members of the minority group having ‘less opportunity’ to participate in the political process”—exactly what Section 2 forbids.
“No court has done a better job of analyzing the Section 2 issue, in my opinion,” said Tokaji, calling the ruling “a model for how courts should approach this kind of problem.”
That’s where the Ohio lawsuit—filed by the same American Civil Liberties Union (ACLU) legal team behind the Wisconsin case—comes in. Though the Ohio suit addresses cuts to early voting, not voter ID, many of the issues are the same, since both restrictions will have a disproportionate impact on minority voters, reams of research suggest.
But to win, the plaintiffs will have to show not just that the early voting cuts affect minorities more than whites. They’ll also have to prove that they do so because of how they reflect a history of racial discrimination. That’s what Adelman found in Wisconsin: Blacks and Latinos are less likely than whites to own ID, he wrote, because they’re more likely to be poor, and people who are poor are less likely to drive or do other activities for which an ID is needed. They’re more likely to be poor, he wrote, “because they have suffered from, and continue to suffer from, the effects of discrimination.”
Events over the last decade are bolstering the case in Ohio.
In 2004, some Ohioans waited in lines for ten hours or more to vote, with many giving up in frustration. The lines were worst, by far, in minority-heavy areas. That disaster led to the establishment of early voting, aimed at taking the pressure off Election Day itself. In the following elections, things went much more smoothly. 2008 saw record African-American turnout in Ohio. After that, Republicans set out to roll back early voting. They failed to do so in 2010, 2011, and 2012, before finally succeeding earlier this year.
“I think people understand that this is just repetitive attempts to try to push us back toward 2004,” Dale Ho, the director of the ACLU’s Voting Rights Project and the lead lawyer on the case, said Saturday on msnbc’s The Melissa Harris-Perry Show. “And we’re confident about our argument.”
Tokaji called the Ohio case “very strong” and said the plaintiffs may even be able to show deliberate racial discrimination on the part of the state's Republicans—more than the law requires them to prove. That effort may be helped by emails published this week by Salon, which suggest that Secretary of State Jon Husted, a defendant in the case, expressed little concern about how the proposed cuts might affect minority communities.
Still, it’s far from a slam-dunk. Because several states offer no early voting at all, the plaintiffs can’t argue that states have to offer a minimum amount of early voting to avoid discriminating against minorities. Rather, they’ll likely claim that once a state has offered early voting, it can’t be taken away without a very good reason.
That idea was central to a 2012 case where Husted was blocked by a court from cutting the last three days of early voting. But it’s not a standard that has been used much before in Section 2 cases.
“It is a provocative theory,” Rick Hasen, a prominent election law scholar at the University of California, Irvine noted in an email to msnbc “but it is one which would mean both an expansion of section 2 standards as well as worse treatment for states that have offered some early voting (but cut back) compared to those that offer none.”
One piece of good news for those challenging the cutbacks: Last week, the suit was officially combined with the 2012 case, technically still ongoing, in which Husted was stopped from cutting the last three days of early voting. That means it will come before the same judge, Peter Economus, who wrote a strong opinion slapping down Husted in that case.