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Civil Rights Commission report: Minority voting rights impacted by new laws, including strict voter ID

Image courtesy: U.S. Commission on Civil Rights

The U.S. Commission on Civil Rights has finally released its report and recommendations on minority voting rights and access around the country after holding a public briefing in Raleigh earlier this year [2].

The report found that new laws and voting procedures – particularly in many states previously covered under the preclearance requirements of the Voting Rights Act (which includes North Carolina) – are impacting voter access.

Examples of those laws and procedures include the implementation of strict voter ID laws; the closing polling place, cutting early voting; and voting roll purges and challenges to voter eligibility.

“Today’s report reflects the reality that citizens in the United States – across many states, not limited only to some parts of the country – continue to suffer significant, and profoundly unequal, limitations on their ability to vote,” said Commission Chair Catherine E. Lhamon. “That stark reality denigrates our democracy and diminishes our ideals. This level of ongoing discrimination confirms what was true before 1965, when the Voting Rights Act became law, and has remained true since 1965: Americans need strong and effective federal protections to guarantee that ours is a real democracy.”

At the Raleigh public hearing, Commissioners heard testimony from 23 current and former government officials, legal experts, academics, civil society actors, and some 40 members of the public.

The 402-page report includes a letter to President Donald Trump recommending that the VRA be amended to restore and expand protections against discrimination, including federal preclearance. When establishing the reach of an amended VRA preclearance coverage provision, include current evidence of, and historical and persisting patterns of, discrimination.

“The Voting Rights Act works to dislodge and deter the construction of barriers by state and local jurisdictions that block or abridge the right to vote of minority citizens,” the letter states. “Especially following the 2013 Supreme Court decision in Shelby County v. Holder precluding operation of certain parts of the Voting Rights Act, the narrowness of statutory mechanisms to halt discriminatory election procedures before they are instituted has resulted in elections with discriminatory voting measures in place. After an election takes place with discriminatory voting measures, it is often impossible adequately to remedy the violation even if the election procedures are subsequently overturned as discriminatory, not least because officeholders chosen under discriminatory election rules have lawmaking power and the benefits of incumbency to continue those rules.”

North Carolina has had a sordid history when it comes to voting rights and the past few years haven’t proven to change much. Voters here have cast ballots in unconstitutional elections for nearly a decade and will again vote in unconstitutionally gerrymandered districts in November.

A vague proposed constitutional amendment will also be on the upcoming ballot that could enshrine a voter ID requirement into the constitution.

The full report outlines a lot of the state’s history with discriminatory laws and some of the recent court battles over them. It also examines other states across the country with similar issues.

The entire report is worth a read, and can be found here [3], but the Commission’s findings are most telling. This is from the executive summary:

The right to vote is the bedrock of American democracy. It is, however, a right that has proven fragile and in need of both Constitutional and robust statutory protections. Racial discrimination in voting has proven to be a particularly pernicious and enduring American problem. Voter access issues, discrimination, and barriers to equal access for voters with disabilities and for voters with limited-English proficiency continue today.

The VRA works to dislodge and deter the construction of barriers by state and local jurisdictions that block or abridge the right to vote of minority citizens.

Preclearance proved a strong deterrent against state and local officials seeking to suppress the electoral power of growing minority communities through the enactment of policies and procedures that violated the protections of the VRA.

In Shelby County, the Supreme Court acknowledged ongoing voting discrimination, and noted that Congress may draft new coverage criteria for preclearance based on current conditions that do not treat states unequally based on past conditions of discrimination.

Without Section 5 preclearance, the DOJ has not been able to object to and prevent implementation of laws that courts later determined to have been specifically intended to limit black and Latino Americans’ right to vote.

The Shelby County decision had the practical effect of signaling a loss of federal supervision in voting rights enforcement to states and local jurisdictions.

The voting laws implemented in North Carolina and Texas immediately following the Shelby County decision are examples of the direct impact of the decision on the behavior of state and local officials. In both states, after prolonged litigation, the changes were eventually found to be discriminatory. A review of these voting changes and the litigation challenging them show:

  • Changes that were previously not precleared by the federal government under Section 5 in covered states were immediately implemented;
  • Federal courts held that the laws were motivated by an intent to discriminate against minority voters, in one case, “with surgical precision;”
  • These voting changes remained in place through several elections, though courts eventually found that the changes were motivated by racial discrimination and/or had discriminatory effects; and
  • Statewide discriminatory voting changes adversely impacted the rights of large numbers of eligible voters, and future judicial preclearance or ‘bail in’ was not ordered by the courts in the wake of findings of intentionally racially discriminatory election changes.

In the face of ongoing discrimination in voting procedures enacted by states across the country, enforcement and litigation under Section 2 of the VRA is an inadequate, costly, and often slow method for protecting voting rights.

The narrowness of the remaining mechanisms to halt discriminatory election procedures before they are instituted has resulted in elections with discriminatory voting measures in place.

After an election with discriminatory voting measures in place, it is often impossible to adequately remedy the violation even if the election procedures are subsequently overturned as discriminatory. Officeholders chosen under discriminatory election rules have lawmaking power, and the benefits of incumbency to continue those rules perpetuate their continued election.

In states across the country, voting procedures that wrongly prevent some citizens from voting have been enacted and have a disparate impact on voters of color and poor citizens, including but not limited to: restrictive voter ID laws, voter roll purges, proof of citizenship measures, challenges to voter eligibility, and polling places moves or closings.

Because of the nature of voting rules being broadly applicable to all eligible voters, a single change in law, procedure, or practice can disproportionately affect large numbers of eligible voters and possibly discriminate against certain groups of people whose voting rights are protected by the VRA.

Failure to provide or make available legally required language access voting materials and to comply with Section 208’s requirement that allows voters to bring an assistant of their choosing imposes unnecessary barriers to voting for limited-English proficient Asian, Latino, and Native American voters.

Section 208 of the VRA has not been well-utilized or enforced. The DOJ appears to have limited its enforcement of Section 208 to language access cases, and failed to provide adequate guidance or enforcement for compliance with Section 208 in support of voters with disabilities.”

The report goes on to offer a series of recommendations, including amending and strengthening the Voting Rights Act “to restore and/or expand protections against voting discrimination that are more streamlined and efficient than Section 2 of the VRA.”

Click here [3] to read the full report and its recommendations.