Courts and Law

What Shelby County means for North Carolina

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Election Day 2016: Voter photo ID. No Sunday voting. Fewer, if any, early voting days. And no same-day registration.

Sound like we’re expanding access to the polls?

Not in North Carolina, now that legislators have been sprung from the restraints of Voting Rights Act preclearance.

Just hours after the U.S. Supreme Court in Shelby County v. Holder gutted the requirement that certain states and local governments get Justice Department approval of proposed voting changes, Republican lawmakers here promised quick passage of a voting bill that would set the state back decades.

“Now we can go with the full bill,” Senator Tom Apodaca told WRAL, referring to an omnibus voting bill that would do more than just require voter ID; it would reduce early voting, eliminate Sunday voting and ban same-day registration.

But voters’ rights advocates called the Court’s decision a setback for democracy.

“We can’t allow discrimination at the ballot box and must prevent minorities from having their votes purged, packed, gerrymandered, and redistricted away,” said Wade Henderson, President of the Leadership Conference on Civil and Human Rights. “No one should be fooled by the Pollyannaish fantasy that voting discrimination no longer exists.  As the Court acknowledged, voting discrimination still exists and Congress may draft another coverage formula. We urge Congress to act with urgency and on a bipartisan basis to protect voting rights for minorities.”

U.S. Sen. Kay Hagan told the Greensboro News & Record that she was “deeply discouraged” by the court’s decision.

“Though our country has come a long way since this law was enacted, injustice still exists and still threatens the rights of minority voters,” she said in an emailed statement. “This is a step backwards.”

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In Shelby County, the sharply divided Court tossed out the formula used to identify jurisdictions subject to preclearance — including 40 counties in North Carolina — as outdated, effectively eliminating the requirement under Section 5 of the Voting Rights Act that those jurisdictions get prior approval of voting changes.

Echoing a sentiment voiced four years ago in Northwest Austin Municipal Util. Dist. No. One v. Holder that “things had changed in the South,” the Court’s majority cited increased minority voter turnout as proof and invited Congress to draw up different coverage plans if it deemed preclearance still necessary.

“Our country has changed,” wrote Chief Justice John Roberts wrote for that majority. “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

In so doing, the majority ignored the broad bipartisan support preclearance garnered in 2006, when Congress — after reviewing extensive evidence and testimony and holding more than 20 hearings — renewed the Voting Rights Act by an overwhelming 390-33 vote in the House and a 98-0 vote in the Senate.

“Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today,” wrote Justice Ruth Bader Ginsburg in her dissent, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. “The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story.”

The majority also cast a blind eye towards the continued vitality of the preclearance provision, a misstep Ginsburg likened to an umbrella in a rainstorm.

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote.

Examples of the provision still at work abounded during the November 2012 elections.

It was the preclearance provision that kept the strictest voter ID law in the nation from taking effect in Texas just before the November 2012 elections – a law that would have allowed concealed handgun licenses to serve as a form of valid identification to vote but would have rejected the use of a college ID or a state-employee ID.

Preclearance forced South Carolina to modify a proposed voter ID law which ultimately did not apply to voters there in 2012.

And in Florida, preclearance kept restrictions on early voting at bay.

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In North Carolina, 40 counties have been expressly covered under the preclearance provision of the Voting Rights Act and required to have any voting changes there preapproved.

And over time, changes proposed in places like Harnett County, FayettevilleKinston, and Pitt County did not pass Justice Department muster.

The state, too, has been subject to that provision for any changes that would impact voters statewide. Redistricting plans in 1980 and 1990 did not receive preclearance, said Bill Gilkeson, an attorney in Raleigh who served as an attorney for the General Assembly for more than 25 years.

Nationally, preclearance led to the rejection of more than 1,000 proposed discriminatory voting changes between 1982 and 2006, according to Leadership Conference on Civil and Human Rights. In addition, hundreds of voting changes were withdrawn by covered jurisdictions after just a request for more information from the Justice Department.

And often, the prospect of preclearance has deterred jurisdictions from even enacting restrictive voting measures.

Sen. Apodaca admitted as much, telling WRAL that the Senate didn’t want the legal headaches of having to go through pre-clearance if it wasn’t necessary and having to determine which portions of the proposal would be subject to federal scrutiny.

That’s been a reaction shared by lawmakers elsewhere in the state.

In 2012, for example, the city council of Roxboro, North Carolina was considering a proposal to change its body from having two-year non-staggered terms to having four-year staggered terms. This would have made it more difficult for minorities to elect candidates of their choice by reducing the number of people on the ballot at each election. But after local advocates suggested the proposal would not survive Section 5, the city abandoned it, instead adopting longer, but non-staggered terms.

Being subject to the preclearance requirement was not a life sentence — something the Shelby County majority overlooked as well.

Jurisdictions that complied with the Voting Rights Act for 10 years were eligible to “bail out” of Section 5, something that Wake County and the City of King’s Mountain did in fact do.  Nationally, every jurisdiction that sought to bail out was approved — a total of 127 jurisdictions since 2009.

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The practical effect of the Shelby County decision is that the burden of establishing voting discrimination shifts from state officials preemptively seeking Justice Department approval to individual voters challenging voting changes in lengthy court battles, often too late to make a difference in election outcomes.

That prospect of protracted litigation will have a chilling effect on voters, analysts predict.

Some say that the Justice Department might respond by increasing its use of the little-known “bail-in” provision of the Voting Rights Act noted in the Court’s dissent. That provision, Section 3, allows the government to go to court to ask that a new state or local government be put under Section 5 because of its more recent history in dealing with minority voters.  Two states have been brought under Section 5 that way — Arkansas and New Mexico — along with several county governments, including Los Angeles County in California.

For now, though, the deterrent effect preclearance had on freewheeling legislators, noted by U.S. District Judge John D. Bates in the South Carolina v. Holder case, will be gone.

Texas wasted no time announcing that its previously tamed voter ID proposal will now become law as originally drafted, in full restrictive form.

And Republican legislators here appear poised to follow.

But state Attorney General Roy Cooper cautioned that now more than ever lawmakers should be diligent in protecting voter’s rights.  “This ruling doesn’t eliminate North Carolina’s obligation to keep elections open and accessible,” he said in an email statement quoted in the Greensboro News and Record. “Now that this important tool used to fight election law discrimination is gone, the legislature must take even more care to resist new laws that make it harder for people to vote.”