Thursday marks the 50th anniversary of President Lyndon B. Johnson signing the Voting Rights Act into law. With the Act, African Americans were finally granted protections to exercise the voting freedoms granted to them with the passing of the 15th amendment in 1870. The 1965 voting rights hammer landed heaviest on local election officials who had been enforcing a number of discriminatory measures—literacy tests, poll taxes, all the violence depicted in Ava DuVernay’s movie Selma—to keep black people from voting.
More recently, the actual political power of black elected officials throughout the South has waned considerably, thanks to an onslaught of new local laws that have made it more difficult for people of color to vote. From a recent New York Times editorial:
Today there are no poll taxes or literacy tests. Instead there are strict and unnecessary voter-identification requirements, or cutbacks to early voting and same-day registration—all of which are known to disproportionately burden black voters.
The current voting rights malaise was triggered mainly by two key events:
- The 2010 elections, when a host of state legislatures and governors’ offices flipped to Republican control and immediately began passing laws to restrict voting.
- The 2013 Shelby v. Holder U.S. Supreme Court decision, which defused a key provision of the Voting Rights Act that had been used to detect racial discrimination in election administration before it happened.
North Carolina is emblematic of both events. In 2012, its legislature turned from majority blue to super-majority red, punctuated by the election of a Republican governor. Under GOP rule, the state made one of its first orders of business creating a voter law in 2013 that would undo almost all of the progressive elections laws enacted in the years prior, despite the fact that those laws effectively improved voter participation. Chief Justice John Roberts said in his Shelby ruling that racism at Southern polls was no longer a thing. But recent studies from researchers who’ve been tracking how discrimination manifests at the polls say otherwise.
North Carolina’s H.B. 589 bill, the Voter Information Verification Act (VIVA), included a number of stifling measures that legal experts say will unfairly encumber black and Latino voters. It passed less than a month after the Shelby v. Holder decision, which released the state from federal oversight assigned due to its history of racial discrimination at the polls.
University of California, Irvine political science and law professor Richard Hasen, one of the nation’s foremost election law experts, calls VIVA “the most sweeping anti-voter law in at least decades.”
Here’s what VIVA won’t let voters do:
- Vote, unless they have a very specific form of valid government-issued photo ID.
- Pre-register to vote as a 16- or 17-year-old, as was the legal practice for years.
- Register to vote on the same day as voting.
- Access a ballot on the Sunday before Election Day, which again, used to be allowed.
- Have their vote counted if it was accidentally cast in the wrong precinct, which sounds like it makes sense for local elections, but shouldn’t really matter in, say, a presidential election.
African-American and Latino voters relied heavily on the pre-registration program for teens, same-day registration, and the early Sunday voting period, used popularly in church-led “souls to the polls” drives. These measures were passed to shore up the voter participation of people of color who found it difficult to vote only on Election Day because of work and other timing challenges.
VIVA is basically an affront to the spirit of the Voting Rights Act, which sought to not only protect voters of color from discrimination, but also remedy the 100-plus years when they were denied the franchise. Which is why civil rights lawyers have been fighting VIVA in U.S. District Court, a trial that just wrapped Monday, July 31. Attorneys in that case say that state legislators intentionally passed VIVA with the understanding that it would make it tougher for black and Latino people to vote. They also argue that the way the law is built, it will likely hamper voters of color, even if nefarious intentions can’t be proved. In either case, the law would be considered a violation of the Voting Rights Act. Just yesterday, a federal court found Texas’s photo voter ID law a violation of Section 2 of the Voting Rights Act, which prohibits laws that lead to racially discriminatory outcomes.
The state legislators who introduced and whipped votes to pass VIVA refused to testify in the trial, but deny both discriminatory intentions and the charge that the law will yield discriminatory results. University of Wisconsin-Madison political science professor Barry Burden, an expert witness for the civil rights team, had a different testimony:
By disrupting the very aspects of the state’s electoral system that are most used by black and Latino voters, it is as if the new restrictions imposed by [VIVA] were selected precisely to disproportionately disrupt the voting habits of minority voters.
In Burden’s report, he references the Harvard study of researchers Ariel R. White, Noah L. Nathan, and Julie K. Faller, whose work focuses on racial/ethnic biases exhibited by local elections administrators. The study, which was published in the journal American Political Science Review in February, explains why this local focus is necessary:
At the front lines of the effort to inform voters about new voting requirements stand nearly 8,000 “street-level bureaucrats,” the county and municipal administrators who implement the nation’s electoral laws. Like other street-level bureaucrats, local election administrators often have considerable discretion in how they manage the election system, operate with little direct oversight from state officials, and are frequently time and resource constrained.
For their experiment, they sent emails to over 7,000 local election officials across the country with questions about how to comply with photo voter ID laws and other election matters. Some of the emails were signed with a Latino-sounding name (Juan Gonzalez, for example), while others were signed with non-Latino names. After reviewing over 5,300 replies, the researchers found “clear, causally identified evidence of bias against Latinos in the responsiveness of local election officials.”
For the emails signed with non-Latino names, they found much swifter responses from election administrators, while Latino-signatured emails more often got slower or unhelpful responses, if they got responses at all. In North Carolina, Latino-signed emails were 5.6 percentage points less likely to get a response than non-Latino ones.
Racial bias was not exclusive to treatment of Latino voters, though. African Americans fought against discrimination at the polls in North Carolina throughout virtually all of the 20th century. Not long after African Americans were granted ballot access via the 15th amendment, whites intimidated and attacked black citizens who dared try to take advantage of these new freedoms. This was no less true in North Carolina, where then-Governor Charles Aycock said in a 1903 speech, “I am proud of my State… because there we have solved the negro problem… We have taken him out of politics and have thereby secured good government under any party.”
The state pulled this off through the hard violence of Ku Klux Klan terrorism, and through the softer violence of obstructions like literacy tests and poll taxes. The Voting Rights Act outlawed such measures, but literacy tests are still considered legal in North Carolina’s state constitution. Legislators introduced a bill in 2013 to take it off the books, but the state senate never brought it forward for a vote.
Meanwhile, the photo voter ID element of VIVA is perhaps the biggest threat for for black voters: A study from North Carolina’s State Board of Elections found that while African Americans comprise 22 percent of registered voters, they represented roughly a third of those in the state who lacked ID. When factoring in those who have expired IDs, which can’t be used to vote under VIVA either, another analysis found the disparity between black and white would-be voters is even wider.
State legislators who support VIVA say that photo ID is needed to vote to fight voter fraud, but have yet to produce any credible claims that such fraud is affecting the outcome of elections. Rutgers University professor Lorraine C. Minnite, author of the book The Myth of Voter Fraud, reviewed 580 voter fraud complaints made in the last few years, and found only two that voter ID would have prevented — if the complaints checked out. Wrote Minnite in her expert report for the case:
If we assume that all 580 referrals are actual cases of voter fraud, we can estimate a range from two to 580, where the two represents cases of voter impersonation, and 580 equals all cases of voter fraud, including those that a photo ID would not prevent, but still would be of concern. We then can use this range of cases to calculate a potential voter impersonation/voter fraud rate in North Carolina in just the major federal and statewide elections held between 2000 and 2014 of 0.000005692449 to 0.001650810255. If we were to include all votes cast in non-federal elections in the calculations, the voter fraud rate would further shrink toward zero.
When the Voting Rights Act was running full strength, most racial injustices in a changed election law were caught before they could take effect. Between 1971 and 2012, the federal government flagged 64 cases of potential racial discrimination in planned election changes in VRA-covered North Carolina counties. Now, parties have to sue to intercept an injustice found in an election administration change and hope they catch the injustice before it happens.
This makes for a far less efficient way of rooting out racism at the polls, the very thing civil rights activists were hoping to mitigate in their 1960s struggle to have the Voting Rights Act passed. States like North Carolina, meanwhile, have been counterattacking the civil rights law from the moment it was signed, as Ari Berman details in his new book, Give Us the Ballot. Writes Berman:
The post-Shelby voting rights landscape most closely resembled the period before 1965, which the VRA was meant to end, when the blight of voting discrimination could only be challenged on a torturous case-by- case basis. The loss of [VRA’s federal oversight protection], combined with an often hostile judiciary, created perpetual uncertainty when it came to protecting voting rights. [Chief Justice] Roberts’s long-held view that violations of the VRA “should not be made too easy to prove” was finally being put into practice.