Last week’s Voting Rights Act ruling by the United States Supreme Court marked a significant setback for democracy. The detrimental impact of the court’s ruling is already evident in the states.
The Supreme Court held 5-4 in Shelby County Alabama v. Holder that Section 4 of the Voting Rights Act was unconstitutional. Section 4 is a crucial component of the Act, because it determines which states are subject to the preclearance requirement in Section 5. Without Section 4’s formula, no states are subject to preclearance. As a result, unless Congress enacts a new formula, the federal government no longer has the power to prevent racially discriminatory election procedures from going into effect.
In holding Section 4 unconstitutional, the Court claimed that the country has changed and the conditions that initially justified pre-clearance for specific states no longer exist: “voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare.” However, as soon as the Court released its opinion, several “covered” states announced their plans to move forward with suppressive voter ID laws, which had been blocked by Sections 4 and 5.
Texas released a statement within hours of the Court’s opinion stating that it would immediately implement a voter ID law that it passed in 2011. The law had been denied federal pre-clearance in 2012 because Texas failed to show that it would not have a discriminatory impact.
Mississippi and North Carolina quickly followed suit. The Mississippi secretary of state stated that Mississippi will begin implementing its voter ID law by the 2014 primary elections. North Carolina announced that it would try to quickly adopt a similar law, promising swift action on its pending voter ID bill that has been dormant, specifically waiting for this decision.
In the days following the Supreme Court’s decision, other states appear to be heading in the same direction as Texas, Mississippi, and North Carolina. Alabama’s Attorney General Luther Strange, commented that the State can now move forward with its pending voter ID law without any obstacles. The new law would amend Alabama’s current non-photo ID requirement for a more demanding photo requirement. The governor of Virginia’s office also released a statement that the commonwealth would move forward with its own voter ID law.
Studies show that voter ID laws like these will lead to a decrease in voter turnout, with the impact being strongest among minorities. The new voter ID laws require specific government-issued IDs that minorities, elderly citizens, individuals without high school diplomas, and rural residents are less likely to have. In order to obtain an acceptable form of ID for voting purposes they will citizens would be forced to pay fees. Even in states where the ID itself is free, citizens will have to pay fees for the underlying documentation that is needed, such as birth, marriage, and change-of-name certificates. In this sense, voter ID laws will work much like a poll tax.
Beyond the costs, other obstacles, such as travel and time, will prevent lower-income individuals from obtaining a proper form of ID. Many lower-income individuals don’t have access to a vehicle, and cannot get the time off to meet the limited hours that many of the public offices hold. This is particularly true for people who work hourly-wage jobs.
The Supreme Court’s decision noted (in support of striking Section 4) that in many of the “covered” states, the racial gap in voter turnout was lower than it was nationwide. This, however, does not illustrate a lack of necessity for Section 4, rather it is evidence of the complete opposite. It illustrates how Section 4 has been effective. Coupled with the evidence of these new suppressive laws moving forward immediately after Section 4 was struck down, it is clear that Section 4 is still very much needed. As Justice Ruth Bader Ginsburg wrote in her dissent, “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.”
Unfortunately, without the protections afforded by preclearance, the only remedy left is costly litigation after discriminatory laws have already gone into effect. Because civil rights organizations have limited resources and litigation frequently takes years to be resolved, the result is likely to be more discriminatory laws and administrative changes that go unchallenged and more discriminatory laws that are invalidated only after years of inflicting damage on the electorate.
Michael Carrah is a third-year law student at Washington and Lee University. He joins Project Vote as legal intern for summer 2013.
Photo by SEIU International via Creative Commons