By Dale Ho, Director, Voting Rights Project, ACLU
This year, we will hold the first presidential election in 50 years without the full protection of the Voting Rights Act. Not coincidentally, 17 states will have new restrictions on voting in effect that were not in place during the last presidential election. Collectively, these states contain over 114 million people and have 189 votes in the Electoral College – about 70 percent of the votes needed to be elected president. Congress can take action now to strengthen voter protections that have been weakened by the Supreme Court to ensure that every American vote counts this November.
Restrictions in these 17 states range from cutbacks on early voting (in Ohio, Wisconsin, and Georgia); documentation requirements for voter registration (in Kansas); and strict voter identification laws, under which one cannot vote without having one of a specific set of forms of government-issued ID (in Alabama, Texas, Virginia, and Wisconsin).
Preventing even a single eligible citizen from casting a ballot is antithetical to our democratic ideals. But the new restrictions threaten to have a wide-ranging impact. In North Carolina, seven days of early voting were eliminated, a week on which almost 900,000 people cast their ballots in 2012. In Wisconsin, a federal court found that more than 300,000 registered voters lack the requisite ID for voting in that state. And in Kansas, more than 30,000 people have been blocked from registering to vote thanks to the state’s bureaucratic and unnecessary documentation requirements.
The timing is hardly a coincidence. In 2008 and 2012 we saw surging turnout from historically underrepresented groups. In 2008, people under the age of 30 turned out to vote at a higher rate than they had since 1992. And people of color constituted a quarter of the eligible electorate for the first time in our nation’s history. Hispanic participation increased in 2008 by more than 25 percent when compared to 2004. For Asian Americans, the figure was more than 20 percent, and for African Americans, it was more than 15 percent. By contrast, for non-Hispanic whites, the number of ballots cast increased in 2008 by only about 0.2 percent.
As if by coincidence, many of the new restrictions seem surgically targeted at these newly-emergent segments of the electorate. In state after state, courts have found that minorities are less likely to have government-issued IDs. For years, early voters as a group were disproportionately white but that changed dramatically in 2008. That year, more than 50 percent of African Americans voted early in Florida, and more than 70 percent voted early in North Carolina. Suddenly, states began cutting back on early voting.
Whether these changes have been wrought with the intent to suppress minority voters specifically or voters who tend to vote for the opposition party in these states (who just happen to be disproportionately minorities) is really beside the point. The point is that the tools that facilitate the participation of historically underrepresented groups are being eliminated at the moment that these voters are emerging as a decisive force in American politics.
These voter restrictions are the result of the Supreme Court’s 2013 decision in Shelby County v. Holder. The 5-4 decision immobilized a critical provision of the Voting Rights Act, which required states and counties with the worst histories of voting-related discrimination to obtain federal approval before making changes to their voting laws and practices. In the Supreme Court’s view, the Act’s method of selecting states for federal oversight was based on old data.
But of the 17 states with new voting restrictions in place, about half (eight) were subject to the VRA’s preclearance process. Prior to the decision, these states would have needed federal approval before making changes to their voting laws – and that federal approval would most likely have been denied. In fact, Texas’s voter ID law was blocked before the 2012 election under the VRA, only to be reinstated after the Court’s decision in Shelby County. Had the federal preclearance system remained in effect, there can be little doubt that most if not all of the restrictive laws in these states would have been blocked.
Congress can take action now to remedy this embarrassing state of affairs. Two bills have been introduced to address the Shelby County decision and renew the Voting Rights Act based on more recent data. It has been three years since Shelby County, and while both of these bills have some support from both sides of the aisle, neither has yet received a hearing during this Congress.
This has to change. In an election year that has been marred by racial tensions, with the Speaker of House criticizing his own party’s presumptive nominee for president for making “textbook definition of a racist comment,” members of Congress must make clear where they stand on discrimination. They should make a clear commitment to the equal dignity all Americans to participate in the political process by revitalizing the Voting Rights Act.