Voting is the cornerstone of democracy – at least, it should be. But American democracy shifted dramatically on June 25, 2013, when the Supreme Court’s Shelby County v. Holder decision gutted a landmark provision of the Voting Rights Act (VRA). A majority of justices struck down the coverage formula for the VRA’S Section 5, which had required federal pre-approval of new voting practices in mostly southern states, effectively halting its protections. The court acknowledged that “voting discrimination still exists,” and noted that Section 2 bans voting discrimination on the basis of race throughout the land.
This month, the power of Section 2 to combat such wrongs was put to the test in the U.S. Supreme Court, with cases seeking to stop voting restrictions under Section 2 in North Carolina and Wisconsin. The high court’s divergent decisions in these cases – recognizing the harm of unjust policies in one state, but failing to see the damage to voters in another – illustrate how post-Shelby voting rights are in a tensely precarious position.
On the one hand, the Supreme Court blocked an appellate court order to implement Wisconsin’s restrictive voter ID law a mere four weeks before Election Day. With 300,000 registered Wisconsin voters lacking the type of identification suddenly required to cast a ballot (voters who are disproportionately African-American and Latino), there wasn’t enough time to educate the public about this new requirement, nor to get ID cards to the many voters who needed them. To prevent the immediate disenfranchisement of hundreds of thousands of Wisconsin citizens, the Supreme Court was correct in halting the state’s voter ID requirement.
Yet also this month, the Supreme Court stopped a lower court mandate to halt two key parts of North Carolina’s voter suppression law, a discriminatory measure that is widely recognized as the nation’s worst. After the Fourth Circuit Court of Appeals ordered North Carolina to make same-day registration and out-of-precinct voting available this November, the Supreme Court reversed it. Now voters will no longer be able to use these procedures, which tens of thousands of North Carolinians, especially African-American voters, had relied on for many years.
This retraction of same-day registration and out-of-precinct voting violates Section 2 of the VRA, and, unfortunately will cause irreparable harm to North Carolina’s African-American voters this November and beyond.
It’s important to note that the VRA was passed in 1965 not only to ban extreme acts that deny the vote to people of color, such as literally shutting the door in the faces of black voters or attacking them with police batons. It also made it illegal to abridge the vote, through changes like moving polling places without informing voters, or requiring poll taxes. These more-subtle-but-still-harmful tweaks are precisely what threaten the rights of voters in North Carolina today.
Passed just six weeks after the Shelby ruling – which allowed states with the most egregious histories of discrimination to immediately enact any and all voting restrictions – North Carolina’s far-reaching law, H.B. 589, stops at nothing to limit access to the ballot. In addition to eliminating same-day voter registration and prohibiting out-of-precinct ballots from being counted, the measure shortens the early voting period by a week, gets rid of a successful pre-registration program for 16- and 17-year-olds, forbids counties from extending poll hours by one hour on Election Day in extraordinary circumstances (such as in response to long lines), expands the ability for poll observers to challenge voters, and implements a strict photo ID requirement.
As the North Carolina NAACP has argued in its suit challenging the law, it is no coincidence that the two changes previously blocked by the Court of Appeals – the elimination of same-day registration and out-of-precinct voting – disproportionately impact voters of color. In 2012, African Americans made up 41% of voters who used same-day registration, despite comprising just 22% of North Carolina’s voting population, and they cast nearly a third of out-of-precinct ballots. To suddenly repeal these measures, which black voters used at twice the rate of whites, is a calculated effort by politicians to manipulate the voting rules to make it harder for people of color to cast a ballot.
In fact, the very reason that North Carolina first adopted same-day registration and out-of-precinct voting was to address longstanding racial disparities and to relieve preexisting barriers to the electoral process. After centuries of racial discrimination in the state, African Americans continue to lag behind whites in income, access to transportation and residential stability. Same-day registration provides a safety net for voters who go to the polls during early voting but find there is a problem with their registration. Partially counting ballots cast out of precinct similarly assures voters who did everything necessary to participate, but mistakenly voted at the wrong location within their county.
Last year, the Supreme Court noted that Section 2 was not impacted by its Shelby decision, and could continue to ban race discrimination in voting. Yet the impact of the Court’s decision on North Carolina this month, lifting the preliminary injunctions on parts of the state’s law, fails to live up to that promise.
But the story does not end here. As we look toward the full trial on the merits of this law next year, we are prepared for a long fight to restore the rights of North Carolina voters, to uphold the true scope of Section 2 of the VRA, and to ensure a just democracy in which all voices can be heard.
Penda D. Hair is Co-Director of Advancement Project, a national civil rights organization that served as leading litigators in both the North Carolina and Wisconsin lawsuits on behalf of communities of color.