The Federal Courts Strike Back at the GOP’s War On Voting Rights

Above right: a destroyer of voting rights. Above left: a liberator of them.

Friday was a landmark day for the right to vote in the United States:

The clash between a Republican Party running at full speed to the right while its population was trending to the left led North Carolina to pass a particularly terrible anti-voting law. In 2013, a bare majority of the US supreme court gave the green light to North Carolina by striking down a provision of the Voting Rights Act that required states, like North Carolina, that had a history of discrimination to preclear electoral law changes with the Department of Justice.

In addition to a requirement that voters show particular forms of ID, the state eliminated Sunday voting, narrowed the window for early voting and eliminated same-day vote registration and early registration for 16- and 17-year olds. Voter ID requirements at least have the superficial appearance of addressing the integrity of elections, although in practice the justification is bogus. But most of the provisions in North Carolina’s attack on the right to vote had no purpose, even in theory, other than to make it harder for people to vote.

Or, to put it more accurately, make it harder for some people to vote. In a careful, detailed, and absolutely devastating opinion for a unanimous three-judge panel, Judge Diana Motz demonstrated that the law “target[ed] African Americans with almost surgical precision.” The discriminatory intent that could be clearly inferred from the nature of the statute itself was not well-hidden.

As Judge Motz pointed out: “ [b]efore enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.” When you request data about how changes in vote laws will affect the African-American vote, and then change laws in ways deliberately designed to suppress it, there’s really no room left for doubt.

There was an interesting discussion in the comment thread below about whether Shelby County should be bumped below the Medicaid holding in Sebelius in light of this successful litigation. On the one hand, Section 2 can still provide an effective remedy for cases like this — large, statewide, nakedly discriminatory, well in advance of the election. On the other hand, as humanoid.panda observes preclearance is more effective for smaller scale violations, those with a more compressed time frame, etc. The rationale for the Voting Rights Act, which remains as true today as it was in 1965, is that states are very creative about finding ways to disenfranchise voters and the feds need every tool available to fight it.

And, in addition, these decisions underscore the utter absurdity of Roberts’s opinion. As Judge Motz was careful to observe, North Carolina asked for race-based voting data literally the day after Shelby County was decided. Remember, as Paul explained here the literal (and self-refuting) holding of the case was that Congress once had the power to pass Section 4 but because the remedy it chose was effective it no longer had that power. This was embarrassingly wrong at the time and looks even worse given how Republican-controlled states predictably behaved.

It’s also worth noting that Stevens joining and writing the plurality opinion upholding a Voter ID law in Crawford — presumably to preserve as-applied challenges to Voter ID laws, which Scalia, Thomas and Alito essentially wanted to foreclose — is looking very, very smart right now.