A recent ruling by a federal judge in North Carolina offers a perfect case study of just what was lost when the Supreme Court badly weakened the Voting Rights Act last year in Shelby County v. Holder.
Judge Thomas Schroeder on Friday rejected an effort by civil rights groups and the U.S. Justice Department to put North Carolina’s voting law on hold in advance of a full trial next year. The decision means the law—called the strictest voting measure in the country—will be in effect this November, when North Carolina will host a tight Senate race that could determine control of the chamber.
Politics aside, the ruling’s logic appears to validate the concerns of voting rights advocates that, post-Shelby, the Voting Rights Act is no longer strong enough to protect minorities’ access to the polls—especially in the face of a concerted Republican effort to make voting harder.
Meanwhile, a bipartisan congressional effort to pass legislation re-invigorating the landmark civil rights law is stalled in the Republican-controlled House.
“This really is a result of the Supreme Court’s weakening of the Voting Rights Act a year ago,” Daniel Donovan, a lawyer for the groups challenging the law, told reporters Monday.
North Carolina moved ahead with its law only after the Shelby ruling last June, which ended the system under which most southern states had to have their voting laws cleared by the federal government before they went into effect—a part of the VRA known as Section 5.
Section 5 used what lawyers call a “non-retrogression” standard. That means that if a voting change might hurt minorities, it could be blocked. In other words, courts were supposed to compare minorities’ ability to participate before and after the law. Since North Carolina’s law ends same-day voter registration, cuts early voting, disqualifies ballots cast in the wrong precinct, and, come 2016, will require voters to show a photo ID—all moves that, the evidence suggests, will disproportionately affect blacks and Hispanics—it likely would not have survived Section 5.
Without Section 5, voting rights lawyers have had to rely on Section 2 of the VRA, which works very differently. It’s not just that Section 2 requires victims of racial discrimination in voting to sue after the law has gone into effect, and puts the burden of proof on them. It’s also that Section 5’s non-retrogression standard doesn’t apply. Instead, plaintiffs have to show, essentially, that under the law, minorities now have less ability to participate than do whites, and that that’s the result of racial discrimination, either past or present.
That’s very difficult in a case like this one, because the law has only just gone into effect, so it’s hard for the law’s challengers to show that kind of impact. In the key section of his ruling, Schroeder notes that in North Carolina, black turnout for presidential elections has reached parity with white turnout. And black registration rates in the state have actually surpassed those for whites.
“The high registration rate of black North Carolinians – 95.3%, some 7.5 percentage points above that of whites – suggests strongly that black voters will not have unequal access to the polls,” Schroeder writes.
But what led to those high turnout and registration rates among blacks? “Plaintiffs’ experts attribute these increases,” Schroeder adds, “to the candidacy of President Barack Obama as well as to North Carolina’s election law changes since 2000.”
And it’s exactly those election law changes—primarily the establishment of same-day registration and extensive early voting—that the Republican law reversed. In other words, the law’s challengers are caught in a bind. Right now, whites and non-whites vote at similar rates in North Carolina. That could change once the state’s restrictive law has been in effect for a while. But for now, the numbers to prove it don't exist.
That creates exactly the situation that voting rights advocates warned about after Shelby. Under the logic of Schroeder’s ruling—which election law experts have described as reasonable in its interpretation of federal voting law—they can now only challenge voting restrictions after they’ve been in effect for long enough to have produced evidence of harm. But by then, of course, the damage has been done.
Not every judge has approached Section 2 in the way that Schroeder did. In April, Judge Lynn Adelman struck down Wisconsin’s voter ID law, ruling in Frank v. Walker that it would affect black voters more than white ones, thanks to a history of social and economic discrimination against blacks, leaving them less likely to own a driver’s license. For Adelman, the fact that black turnout in Wisconsin is currently comparable to white didn’t negate that conclusion.
That case is currently on appeal. But Rick Hasen, a prominent election law scholar at the University of California, Irvine, thinks that if the Supreme Court ends up stepping in to clear up the confusion, as is looking increasingly possible, it would probably back Schroder’s view, not Adelman’s.
“Given the current conservative orientation of a majority of the Supreme Court,” Hasen wrote Friday, “it seems likely that a Court majority would be more attracted to the narrow reading of Section 2 offered in today’s ruling compared to the broad ruling in Frank v. Walker.”
There’s one way around this Catch-22: for the plaintiffs to show that Republican lawmakers acted with deliberate racial bias in enacting the law. As Schroeder implied in his ruling, under the VRA, that would likely have been enough to get the law blocked on its own.
But to do that, the law’s challengers needed access to emails and other correspondence from those responsibility from drafting and passing it. And thanks to stonewalling by lawyers for the state, they’ve so far received only a small portion of those records.
By the time the law goes to a full trial next summer, they'll likely have much more of them. But by then, of course, the 2014 election will be long since over.