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With the Supreme Court’s OK, states begin imposing new laws to limit the vote

By Steven Seidenberg

January 1, 2014, 11:19 am CST

When Brother Albert Phillipp arrived at his newly formed parish in 1996, he found an area in dire need of help. The parish of San Felipe de Jesus consisted of desperately poor people who lived in ramshackle houses, many of which were unsafe. The sun-baked rural community lacked paved streets, garbage collection and streetlights.

But this was not a shantytown in some desolate Third World country. This was Cameron Park, a “colonia” just outside the city limits of Brownsville, Texas.

There are thousands of colonias in the U.S. These impoverished, unincorporated communities are situated in isolated areas, usually along the U.S.-Mexican border. Because they have no local government, they often go without such essentials as electricity, potable water, sewer systems, and safe and sanitary housing. In Texas alone, about 400,000 people live in colonias because they can’t afford to live anywhere else.

Soon after Phillipp began his ministry in Cameron Park, he went to the head of the county and asked it to provide garbage collection and other services for Cameron Park. The county commissioner refused because the people in that colonia didn’t vote. “He said he would act if 250 people voted,” Phillipp says.

So Phillipp worked with others in his parish to get people to the polls. In the November 1996 election, 250 people from the colonia voted. Then “local officials began to get interested in the needs of Cameron Park,” he says.

Phillipp is now retired, but he still does volunteer work in Cameron Park, which remains mired in poverty. The colonia is one of the 100 poorest places in the country. It has the lowest per capita income of any U.S. neighborhood with 1,000 or more families. But “now the streets are paved, and there are curbs, gutters and sidewalks. Streetlights have been installed. Garbage collection is available, and there are lots of social services,” Phillipp says. He adds that “the colonia is now a voting precinct, and in the last general election, 2012, we turned out over 1,300 votes.”

He fears, however, that the number of votes cast in the colonia will drop dramatically, starting with the next election, because Texas’ stringent voter ID law has gone into effect. That law, SB 14, restricts in-person voting to those people who can present photo IDs.

The acceptable forms of ID are so few and obtaining them is so costly and time-consuming, the law will prevent many poor people from voting, a three-judge panel of the U.S. District Court for the District of Columbia concluded in 2012. The court stated in Texas v. Holder that the voter ID law is the “most stringent in the country” and “imposes strict, unforgiving burdens on the poor.”

Moreover, the court noted, “the poor [in Texas] are disproportionately racial minorities. … The poverty rate in Texas is 25.8 percent for Hispanics and 23.3 percent for African-Americans, compared to just 8.8 percent for whites.”

Because SB 14 would have a discriminatory effect—impairing voting rights for blacks and Latinos far more than for whites—the court ruled that the statute violated Section 5 of the Voting Rights Act of 1965. The section prohibits covered jurisdictions from making any voting-related changes until such changes are approved by either the Justice Department or a panel of three federal judges.

As a result, during the 2012 election, the residents of Cameron Park (who are overwhelmingly Latino) and their fellow voters throughout Texas did not have to comply with SB 14.

On June 25, 2013, the situation for these voters changed dramatically. In a 5-4 vote in Shelby County v. Holder, the Supreme Court split along ideological lines, with the four conservatives joined by Justice Anthony M. Kennedy striking down a key provision of the Voting Rights Act.

The justices struck down Section 4, which contains the formula used to identify the state and local governments that have to comply with the preclearance requirements. So, although Section 5 survives, none of those jurisdictions have to comply with it until Congress enacts a new formula to determine whom it covers.

FLOODGATES NOW OPEN

Over the years, Section 5 has been a powerful prophylactic measure. It stopped more than 20,000 discriminatory voting-related changes from going into effect, according to Ryan P. Haygood, director of the NAACP Legal Defense and Educational Fund’s Political Participation Group. When the Supreme Court neutered Section 5, the floodgates opened. Texas responded first, reimposing its voter ID law just hours after Shelby County was announced. Texas Attorney General Greg Abbott stated that SB 14 would take effect immediately.

Other jurisdictions that had been covered by Section 5 quickly followed Texas’ lead, adopting a variety of measures that make it harder for citizens to vote. In the few months since Shelby County, Alabama, Mississippi and Virginia implemented tougher voter ID requirements. Florida dramatically cut early voting and resumed a purge of its voter rolls. North Carolina speedily passed a law that, among other things, eliminated same-day voter registration, wiped out a school program that registered tens of thousands of students annually, reduced the early voting period by more than 40 percent, and enacted a voter ID requirement that some analysts say is harsher than the one in Texas.

More jurisdictions are likely to get into the act. There’s a grave danger “that as we see new legislative sessions, we will see new proposals to restrict the right to vote,” says Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund.

Civil rights groups and the Justice Department are fighting back, but their task is daunting. They are pressing Congress to amend the Voting Rights Act, but the prospects for legislative action seem slim. They also are turning to the courts, trying to breathe new life into the remaining legal protections for civil rights. However, their lawsuits against discriminatory voting-related rules will be lengthy, expensive and difficult to win.

“Now we will have to show discriminatory impact after the fact, and will have to do so in courts that have not been particularly friendly toward voting rights,” says Elisabeth MacNamara, president of the League of Women Voters of the U.S.

Discriminatory voting rules are nothing new. From the early 1870s to the early 1960s, a variety of means were used throughout the South to keep blacks from voting. The methods included poll taxes, literacy tests, knowledge tests, property qualifications and good-moral-character requirements. Federal statutes prohibited some of these discriminatory practices and facilitated court challenges. Litigation, however, was costly and slow. And if one barrier to voting was eventually struck down, the jurisdiction usually created a new one.

Finally, responding to a huge protest movement, Congress passed the Voting Rights Act of 1965. Section 2 of that statute outlawed 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.”

Congress thought that was not enough. Recognizing that some areas of the country had long been playing legal Whac-a-Mole to continue discriminatory practices, Congress created a special remedy. Section 5 enacted stringent preclearance requirements that applied to areas where voter disenfranchisement was most acute, as determined by the test set out in Section 4(b) of the statute.

As time passed, Congress repeatedly renewed the VRA, most recently in 2006. It also expanded the statute’s ban on voter discrimination. Congress, however, hasn’t altered the coverage formula of Section 4(b) in decades. The formula was last revised in 1975, relying on voting data from 1972.

‘EITHER DISINGENUOUS OR CUNNING’

That did not sit well with the Supreme Court. Shelby County ruled that Section 4(b)’s coverage formula was so out of date that it did not provide a constitutional basis for imposing preclearance on some jurisdictions but not others. Writing for the majority, Chief Justice John G. Roberts Jr. held that Section 4(b) was unconstitutional because it violated “the principle of equal sovereignty” among the states. He explained that “Congress—if it is to divide the states—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past.”

Roberts presented Shelby County as a modest ruling. He pointed out that the decision had no effect on Section 2 of the Voting Rights Act. As for Section 5, he wrote, “we issue no holding on Section 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.” This deliberately understated the impact of the decision, according to many voting rights experts. “The court was either disingenuous or cunning—making it appear as if it were just cutting down Section 4(b) when in reality it was cutting down Section 5,” MacNamara says.

Without the coverage formula, Section 5 became a nullity. All the jurisdictions that had been subject to preclearance the day before Shelby County were suddenly freed from federal oversight. They include Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, five counties in Florida, 40 counties in North Carolina, as well as several jurisdictions in a number of other states.

Moreover, the Supreme Court likely knew how difficult it would be for Congress to enact a new coverage formula. Since the last renewal of the Voting Rights Act, many prominent GOP politicians have switched positions and become vocal opponents of preclearance.

“The Shelby County majority surely knows of this sea change in Republican leaders’ attitudes about the Voting Rights Act. It also knows of Congress’ increased political polarization … which has made it exceedingly difficult for Congress to override Supreme Court statutory decisions, especially on a bipartisan basis,” election law expert Richard L. Hasen wrote in a recent research paper, “Shelby County and the Illusion of Minimalism.” Hasen, who teaches law at the University of California at Irvine, concluded that “when the Shelby County majority wrote that it was ‘only’ overturning the coverage formula and not Section 5 preclearance itself, the majority knew full well it was effectively overturning Section 5 because there will not be the political will to come up with a new coverage formula.”

‘A DAGGER IN THE HEART’

Even if Congress did find the will to act, Shelby County rendered any new coverage formula constitutionally suspect. The court’s majority found preclearance was an “extraordinary departure from the traditional course of relations between the states and the federal government” because it impinged upon the states’ power to set voting rules and imposed strict federal oversight on some states but not others.

In order for this extraordinary remedy to be constitutionally applied, the coverage formula must restrict preclearance to jurisdictions that have “exceptional conditions” of “pervasive” voting discrimination, the court said. That’s a high bar for any coverage formula to get over. “Under the court’s standard, it is hard to imagine that any formula would meet constitutional muster,” Hasen says.

Shelby County “stuck a dagger in the heart of the Voting Rights Act of 1965,” declared Rep. John R. Lewis, D-Ga., a key player in the civil rights movement. His view is shared by many voting rights advocates, who fear the ruling will result in widespread voter disenfranchisement.

Some legal experts, however, assert that Shelby County’s effects will be relatively modest. “The sky is not falling,” says Cleveland, Miss., attorney Benjamin E. Griffith, the immediate-past chair of the ABA’s Standing Committee on Election Law. He adds that “the need for Section 5 has gradually faded. … The doom and gloom folks need to take a fresh look at what legal alternatives remain. There are a substantial number still.”

For instance, jurisdictions may still be sued for violating Section 2 of the Voting Rights Act. This provision, which “has a very rich body of case law behind it, will become the primary remaining weapon in the federal legal arsenal to fight voter discrimination,” Griffith says.

Section 2 has proven to be quite effective against certain types of voter discrimination, but it has major limitations. “It is not a good substitute for Section 5,” Hasen says.

Section 5 makes it particularly easy to attack discriminatory voting rules. Under Section 5, any new voting-related change is struck down unless the jurisdiction can prove the change would not make black or Latino voters worse off than they were before (i.e., the change would not create a “retrogression” of minorities’ effective exercise of the electoral franchise).

Section 2 puts the burden of proof on those challenging a voting-related change. And the challengers must prove more than mere retrogression. To succeed, they must show the voting-related change was intended to, or had the effect of, discriminating against the voting rights of blacks or Latinos.

That is tough to show. Unless there is clear evidence of discriminatory intent, a Section 2 plaintiff “must present a large-scale analysis that the changes made by the jurisdiction are discriminatory in effect,” says MALDEF’s Perales. “We have to use statisticians, demographers and historians, among others.”

Section 2 cases require both sides to gather massive amounts of data. These detailed, complex cases “can last two, three years or more,” Griffith notes.

Section 5 cases are far less complicated and lengthy. “Section 5 disputes had a pretty quick turnaround,” says Haygood of the NAACP.

All this produces another big difference between Section 5 and Section 2. Whereas Section 5 provides a relatively inexpensive bulwark against voter discrimination, Section 2 cases are “incredibly resource-intensive,” Perales says. Civil rights advocates don’t have the money or resources to bring Section 2 challenges against all the new laws that allegedly harm black or Latino voters. “Very likely there will be discrimination cases that don’t get challenged for several election cycles, if they get challenged at all,” Perales asserts.

LEGAL GAMESMANSHIP

Despite the difficulties of winning Section 2 challenges, the Justice Department and civil rights groups have repeatedly used this provision to strike down redistricting schemes that diluted the power of black and Latino voters. It is unclear, however, whether Section 2 can successfully be used against harsh voter ID laws and other modern methods of voting discrimination—what some have called “second-generation barriers” to minority voting.

“There has been little to no Section 2 litigation on voter ID. There was only one case, in Arizona, which we lost,” Perales says.

More such cases will come. Just one day after the Supreme Court decided Shelby County, eight black and Latino voters filed a lawsuit alleging that Texas’ voter ID law violated Section 2 of the Voting Rights Act. The Justice Department subsequently filed its own Section 2 suit against SB 14. But Hasen warns that “aside from redistricting, it is hard to show a violation of Section 2.”

Even when civil rights advocates manage to win a Section 2 lawsuit, the remedy may not be timely. Because a Section 2 suit takes years to resolve, “the jurisdiction gets to hold at least one election under its discriminatory practice; and for some jurisdictions, that is enough,” Perales says. Jurisdictions can thus game the system, making a new discriminatory rule when a prior one is finally struck down by a court.

Such legal gamesmanship had gone on for decades before Section 5. Now, after Shelby County, many civil rights advocates fear the old days will return. Many areas of the country will adopt second-generation methods of voter discrimination, and any remedies will be costly, difficult to obtain and always too late.

Supporters of Shelby County counter that the country has changed. There is much less discrimination against blacks and Latinos. And there will be no return to widespread voter discrimination.

Yet the deluge of new voting rules since Shelby County suggests otherwise. Indeed, even before the Supreme Court handed down its ruling, many jurisdictions were seeking to restrict the franchise. During the past year, almost every state covered under Section 5 passed or considered at least one type of second-generation voting barrier, such as new voter ID laws or restrictions on early voting.

Supporters of these barriers assert they are needed to stop in-person voter fraud and to protect the public’s confidence in the electoral system. “Voter fraud is real,” Texas AG Abbott has declared. He has told the press that in the May 2012 election, for example, 213 ballots were cast at the polls using the names of dead people.

Critics reply that in-person fraud is extremely rare and assert that the real motive for these tougher voting rules is partisan politics. Many Republicans are pushing for these rules, knowing they will weaken the voting power of minorities, young people and the poor—groups that have tended to favor Democrats in recent elections. GOP officials clearly expect to benefit from these tougher voting rules. “Voter ID … is going to allow Gov. Romney to win the state of Pennsylvania,” Pennsylvania House Majority Leader Mike Turzai declared in 2012 to loud applause from attendees at a Republican State Committee meeting.

UNABASHED PARTISANSHIP

Abbott has denied that Texas’ voter ID law was intended to give the GOP a leg up over the Democrats. However, he has admitted that some other Texas laws harming blacks and Latino voters were motivated by partisanship. Specifically, in 2011, Texas redrew its voting districts. A court found these voting maps were intended to, and had the effect of, diminishing the voting power of blacks and Latinos. In an ongoing lawsuit relating to this 2011 redistricting, Abbott recently filed a brief asserting that the voting maps passed constitutional muster because they “were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats … [They] were motivated by partisan rather than racial considerations.” In at least some contexts, therefore, Abbott has expressed no qualms about hurting minority voters to gain a partisan advantage.

In their fight against second-generation voting barriers, the Justice Department and civil rights groups have more than one arrow left in their quiver. They can not only argue that these barriers violate Section 2 of the Voting Rights Act but also assert that these barriers violate a variety of other constitutional and statutory provisions, including the 14th Amendment (equal protection); the 15th Amendment (the right to vote cannot be abridged on account of race or color); the 24th Amendment (the right to vote in a federal election cannot be conditioned on the payment of a poll tax); the National Voter Registration Act of 1993 (facilitating voter registration for federal elections and limiting state officials’ ability to purge voter rolls); and the Help America Vote Act of 2002 (creating minimum standards for states to follow in several key areas of election administration, such as providing ballots in languages other than English).

Anyone asserting these legal rights, however, is likely to face enforcement problems similar to those that arise under Section 2. Lawsuits must be filed after the fact, the plaintiffs bear the burden of proving a violation of the law, proving a violation can be quite difficult, and judicial remedies could arrive only after an election or two under the discriminatory rules.

A 2008 Supreme Court case, Crawford v. Marion County Election Board, highlights how difficult it can be for plaintiffs to win in court. The plaintiffs in that case challenged Indiana’s voter ID law, alleging it violated the 14th Amendment because many people of color as well as others who were poor, elderly or disabled would have trouble obtaining the required ID. In a 6-3 decision, the court rejected a facial attack on the law, ruling that Indiana had important interests in adopting it and there was no evidence that it unduly burdened any group’s ability to vote.

The court held that the statute furthered Indiana’s legitimate interest in preventing in-person voter impersonation—even though there was no evidence that such fraud had ever occurred in Indiana and there were only “scattered instances” of such fraud occurring anywhere in the nation in recent times. (The court listed only one confirmed instance of recent in-person voter fraud, in a 2004 gubernatorial election in Washington.)

The voter ID law served another important interest, according to the court. It protected public confidence in elections. However, the court did not examine how much the public’s confidence in elections was undermined by the low risk of in-person fraud. It simply accepted Indiana’s contention that voter ID helped protect public confidence in elections.

For Indiana’s voter ID law to be unconstitutional, the court held, these two important state interests must be outweighed by the burdens that the statute imposed on certain voters. But the plaintiffs failed to prove any burden, the court found. There was insufficient evidence to show the number of voters who would be burdened by the statute and the extent to which they would be burdened. The court thus required plaintiffs to provide thorough, in-depth research so as to have any chance of winning these types of cases.

Crawford is typical of the skeptical approach that the judiciary has now adopted toward claims of voter discrimination, according to many civil rights advocates. “We’re fighting uphill battles in the courts,” says MacNamara of the League of Women Voters of the U.S.

Some observers have noted that the Supreme Court’s willingness to allow restrictions on people’s ability to vote stands in stark contrast with the court’s unforgiving stand against restrictions on corporations’ ability to donate money to political campaigns.

“The court applies a double standard,” MacNamara says. “There are almost no reasons the government can offer to restrict money in politics,” but when it comes to restrictions on voting “the Supreme Court is OK with practically any reason the jurisdiction gives—there is no need to show the restriction would have an actual impact on reducing a real problem.”

Section 5, however, might not stay dead. Thanks to a previously obscure statutory provision, some jurisdictions could be forced to comply with Section 5 once again. Section 3 of the Voting Rights Act, often called the “bail-in” provision, states that if a jurisdiction violates the 14th or 15th amendments by committing voter discrimination, a court may order the jurisdiction to preclear its voting-related changes pursuant to Section 5. The court determines the duration of the preclearance requirement and the types of voting-related changes that need to be precleared. For instance, after federal courts determined that New Mexico’s 1980 redistricting plan was unconstitutional, the courts ordered the state to preclear its redistricting plans for the next 10 years.

Section 3 was seldom used in the past, Griffith says. This was as Congress expected. It was intended merely to supplement Section 4’s coverage formula, reaching pockets of discrimination that the statutory formula missed.

But Section 3 is getting a great deal of attention now. In the aftermath of Shelby County, “lots of lawyers around the country are looking at using Section 3 to bring jurisdictions back under Section 5,” Haygood says.

‘DIFFICULT TO PROVE’

Some lawyers have gone beyond looking. The Justice Department and various civil rights advocates have sued Texas, seeking to have the state bailed in under Section 3. Other civil rights groups have filed lawsuits to bail in North Carolina.

It will be tough for the plaintiffs to win these suits. They must show the defendants engaged in intentional discrimination, and that “is very difficult to prove,” says law professor Michael P. McDonald of George Mason University in Fairfax, Va.

Nor is it clear how much discrimination must be shown. Courts have differed on whether bail-in can be triggered by a single constitutional violation, or whether there must be repeated violations. It is also unclear whether bail-in can be triggered by a history of past discrimination or by only significant, ongoing discrimination.

In the near term, Section 3—as well as its constitutionality—will likely be hotly contested in the courts. And because these issues are so important, they may quickly land on the Supreme Court’s docket, according to many experts. “I bet we’ll find out in the next year or so what Justice Kennedy’s thinking is on the bail-in,” McDonald says.

In the meantime, the second-generation voting barriers seem likely to proliferate. They will probably reduce the already minuscule amount of in-person voter fraud. And they will boost confidence in elections—at least for some people.

But if minorities and the poor are disproportionately kept from the ballot box, many may lose their confidence in elections. Perhaps more importantly, they won’t make their voices heard by government officials.

“In 2010, Texas had the lowest voter turnout in the country,” says Linda Krefting, president of the League of Women Voters of Texas. “We need to increase voter turnout if we are to have government of the people, by the people and for the people.”

This article originally appeared in the January 2014 issue of the ABA Journal with this headline: “Sinking the Vote: With the Supreme Court’s OK, states begin imposing new laws to limit the ballot.”

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Steven Seidenberg is an attorney and freelance reporter in the greater New York City area.