In her dissent to the Supreme Court's 5-4 ruling Tuesday gutting the core of the Voting Rights Act, Justice Ruth Bader Ginsburg evoked the long history of persistent tactics that have been used to prevent minorities in the United States from voting.
"Early attempts to cope with this vile infection resembled battling the Hydra," she wrote. "Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place."
Ginsburg cited one example of a Texas law barring black voters from participating in primaries that was struck down by the court in 1927. The same law, with a few modifications, was back on the docket in 1944... and then again, in yet another form, in 1953.
This scenario precisely describes why Section 5 of the Voting Rights Act was needed. In the face of such bottomless, ill-placed creativity, the law required that states and communities with a deep history of discrimination pass all their new voting schemes by the federal government first.
"Section 5 was designed to not have to worry about being one step ahead of what somebody was going to come up with," says Myrna Pérez, the Deputy Director of the Brennan Center for Justice at New York University. "You didn’t have to identify every possible way that something or someone could take discriminatory action."
The court's ruling on Tuesday in Shelby County eliminated this "pre-clearance" in the many areas, mostly in the South, where modern, subtler forms of voter suppression have appeared to linger. The court struck down a part of the Voting Rights Act, Section 4, that determined which areas receive this heightened scrutiny, but the move effectively wiped out Section 5 as well.
We know that potentially discriminatory election-tweaking ideas still bubble up from these places because the federal government has remained busy knocking them down. In the past 15 years alone, the Department of Justice blocked 86 proposed state and local election changes under the VRA. Between 1999 and 2005, 153 proposals were submitted by local or state governments and then withdrawn after the DOJ began to raise questions about them. And since 2006, when the law was last reauthorized by Congress, 31 election changes have been blocked.
Pérez and Vishal Agraharkar at the Brennan Center tabulated those numbers for a depressing but prescient paper released two weeks ago titled, "If Section 5 Falls: New Voting Implications." Now, the details of recent tactics blocked thanks to the Voting Rights Act read like a playbook of what we can expect to see in the coming years. These strategies are no less creative than those Ginsburg described.
Here is one, from the Brennan Center report, at the more egregious end of the spectrum:
In 2001, the white mayor and the all-white Board of Aldermen for the small town of Kilmichael, Mississippi attempted to cancel an election shortly after black citizens became a majority of the registered voters. DOJ objected, finding the cancelation was designed to weaken African Americans’ voting strength. The town refused to reschedule the election until DOJ required it to hold one in 2003, when the town’s first African-American mayor and three African-American aldermen were elected.
This case may be more familiar:
In 2012, DOJ objected to a Texas law that would have required voters to show photo identification before casting a ballot. DOJ found hundreds of thousands of registered voters did not have the necessary identification, and of those, a disproportionate number were Latino. Later that year, the reviewing federal district court agreed, finding the law would disproportionately burden African Americans and Latinos.
Immediately after this week's Supreme Court ruling, Texas announced that it would move forward with that law after all. Legislators in North Carolina who had been awaiting the outcome of Shelby County swiftly declared that they would proceed with a similar law as well. But, in the long tradition of voter-suppression plots, voter-ID laws are just one of the many heads of the hydra.
"The ones I’m concerned about are the ones that happen without legislation," Pérez says, "that happen because an election official or body of election officials decided to make a change and didn't really tell anybody."
These are some of the many quiet tactics she's talking about, along with some others that are more overtly suspicious, compiled with help from the Brennan report:
1. Changing polling locations. An election official can make this call just days before an election.
2. Changing polling hours or eliminating early voting days. This may be particularly problematic in urban counties where long polling lines are most likely, as Henry Grabar reported last fall.
3. Reducing the number of polling places. This raises the same problem as above, particularly when the eliminated polling places had disproportionately served minority communities.
4. At-large elections. At-large elections for school-board members or city councils often dilute the voting power of minorities who have greater influence in single-candidate district elections. In an at-large election, a cohesive voting block with 51 percent of the vote can elect 100 percent of the officials.
5. Packing majority-minority districts. Election maps drawn to push all of a community's minorities in one or a handful of districts can dilute their voting power.
6. Dividing minority districts. Similarly, election maps can slice minority communities into multiple districts so that they have no cumulative influence in any one place. The line between these two tactics is a fine one (and also illustrates why the VRA was useful for assessing facts on the ground).
7. Voter ID laws: This increasingly popular tactic, sometimes likened to a modern-day poll tax, has the potential to disenfranchise voters who don't have a driver's license, or who don't have the money or ability to obtain one (a disproportionate share of these people are minorities). Such laws can also have a disproportionate impact in cities, where many people don't own cars.
8. Onerous candidate qualifications. In 2007, a Texas provision tried to limit those people eligible to become water district supervisors to landowners who were registered to vote.
9. Changing multi-lingual voter assistance. Making it harder for non-English language speakers to vote is a good way to dilute their power.
10. Changing election dates. Another trick that may not require legislative approval.
11. Creating new elections. In 2006, the DOJ objected to a plan in the Houston area that would have eliminated some joint elections and required voters to travel to multiple polling places.
12. Canceling elections. We're not even really sure how Kilmichael, Mississippi, thought they could get away with this.
Top image from a polling station in Milwaukee on Nov. 5, 2012: Darren Hauck/Reuters