Just a month before the election, voting rights have been on a wild ride. The Supreme Court began its term by reinstating voting restrictions in Ohio and North Carolina after federal appeals courts put these laws on hold for unfairly burdening voting rights, particularly for people of color.
But last night, the Court took action to stop Wisconsin's voter ID requirement from going into effect only weeks before Election Day, and a federal court struck down Texas's voter ID law after a trial on the merits, ruling for voters in both cases. So while voters in North Carolina and Ohio face more burdensome voter restrictions, voters in Wisconsin and Texas will not be disenfranchised by unconstitutional discriminatory photo ID requirements in November.
Here's what happened in each state. In the two states where voter disenfranchisement will continue, same-day voter registration was rolled back. Last week the Court stayed the 6 Circuit order and allowed Ohio's cuts to early voting to proceed, and Wednesday the Court stayed the 4 Circuit's decision and allowed North Carolina to implement the repeal of same-day registration and make it harder to count provisional ballots.
But just last night came the news that the Court had stayed the 7 Circuit's decision to reverse the lower court and allow Wisconsin to implement its strict voter ID law, meaning that Wisconsinites will not face new restrictions in November. Almost at the same time, news came that the trial court in Texas had struck down Texas's voter ID law.
The Supreme Court blocked Wisconsin from implementing its voter ID law with less than a month to go before the election, staying the 7 Circuit's "horrendous" opinion that reversed the trial court's injunction suspending the law until it can be reviewed at a full trial after the election. As Rick Hasen explains, "the undisputed evidence shows that, by the state's own account, up to 10 percent of the state's voters could be disenfranchised." Three hundred thousand registered Wisconsin voters do not have the IDs that would have been required, and they are disproportionately black and Latino (blacks and Latinos are, respectively, 1.7 times and 2.6 times as likely as white voters to lack an acceptable voter ID). A University of Wisconsin study showed that 78 percent of 18-24 year old black men lack a government-issued photo ID.
Both Ohio and North Carolina's cuts to voting rights include ending their same-day registration programs, which allowed voters in those states to register and vote on the same day during early voting (in Ohio just for the week of early voting that was cut, known as "golden week"). Same-day registration is a tried and true program, in place since the 1970s, which has been shown to increase voter participation. Nearly 1.5 million people used same-day registration to vote in the 2012 election, and average voter turnout was over 10 percent higher in states that have same-day registration than those that don't.
North Carolina is trying to stop people from voting in ways devised particularly to discourage voting by African Americans. North Carolina saw the largest increase in voter turnout in the country in the 2008 elections -- an 8 percent rise in participation -- after the legislature modernized the state's elections rules in 2007.
More than 250,000 North Carolina voters used the same day registration program to cast their ballots in 2008 and 2012. But political tides turn, and in 2013 North Carolina passed the worst-in-the-nation voter suppression law. The bill was passed only after the Supreme Court's 5-4 Shelby decision gutting the Voting Rights Act's requirement that, because of the history of racial discrimination and continuing circumstances, some states and jurisdictions -- across the country but focused on the former slave states in the South -- had to clear changes to their voting laws that would impact the voting rights of people of color with the Justice Department or a court. Justice Ruth Bader Ginsburg wrote in her dissent that "throwing out preclearance when it... is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."
Well, it's pouring now and voters in North Carolina are getting soaked. North Carolina's legislators were fully aware that the "full bill" of voter suppression measures would not pass muster under the Voting Rights Act's preclearance standards and waited until the day after the Shelby decision to move the package forward. One of the appellate judges asked, "how come the state of North Carolina doesn't want people to vote?" The facts speak for themselves. In 2012, 40 percent of the voters who used the same-day registration program were African American, though they make up 20 percent of the state's voting population. The district judge concluded that the elimination of same-day registration would "bear more heavily on African-Americans than whites" and accepted that making it harder to count provisional ballots would also "disproportionately affect black voters." Justice Ginsburg, in her dissent from the court's stay, wrote that these two provisions "risked significantly reducing opportunities for black voters to exercise the franchise."
The intent of North Carolina's politicians to obstruct voting by African Americans is transparent.
Last week the Supreme Court prevented early voting from starting in Ohio a mere sixteen hours before it would have begun. The Court stayed a federal appeals court's decision that required Ohio to reverse its cuts to early voting and maintain early voting for week that allowed voters to register and vote on the same day (called "golden week") as well as the Sunday two weeks before the election and evening hours from 5-7 p.m. in the two weeks prior to Election Day. It's not like Ohio doesn't need the extra hours to facilitate participation by the state's voters. Memories are still fresh of the 2004 debacle in which bad election administration decisions caused many voters -- particularly minorities -- to have to wait past midnight to cast a ballot and prevented others from voting at all. 2004's "serious election irregularities" disenfranchised hundreds of thousands of Ohio voters, according to a post-election report by Representative John Conyers. And yet Ohio has been given the go ahead to restrict opportunities to vote in 2014.
Finally, more important voting rights news last night was the decision from the Texas trial court to strike down the state's voter ID law because it "creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose."
The law was found to violate Section 2 of the Voting Rights Act, which still stands to prohibit racial discrimination in voting, and the court held open the question of whether the state's discriminatory intent and impact meant that Texas should be "bailed-in" to the pre-clearance process so that the extant provisions of the VRA would require future changes in voting laws to be approved before implementation. Before the Supreme Court's Shelby decision, a federal court had denied pre-clearance to the Texas voter ID law, finding that it was the most discriminatory in the nation and would harm voters of color.
Just like North Carolina, Texas adopted its unconstitutional photo ID law in the face of increasing political power by black and latino communities. At trial, expert testimony showed that 1.2 million eligible voters in Texas lack an acceptable form of ID (the law's design allowed for a gun permit but not a student ID); African American voters and Latino voters, respectively, are 305 percent and 195 percent more likely not to have acceptable ID than white voters. A recent Government Accountability Office study found that recent changes in voter ID laws were responsible for lower voter participation in 2012 in some states, and particularly among young and African American voters.
Taken together, some estimates show that the Supreme Court action in Wisconsin and the trial judge decision in Texas mean that 1.5 million voters will not suffer disenfranchisement by voter ID this November.
But it is shameful that these voter suppression laws get passed when they serve no legitimate purpose, and the Supreme Court should not have stayed the appeals courts' decisions to protect voting rights in Ohio and North Carolina. These voter suppression laws may serve the instrumental purpose of advancing the political fortunes of their advocates at the polls by suppressing participation by voters these politicians fear. But the fact that these restrictions may determine outcomes in important Senate and gubernatorial races across the country is appalling.
The real threat to democratic integrity is politicians manipulating voting rules to choose the population that will choose them, rather than standing accountable to all their constituents.
If you have any questions about your voting rules and how to participate in the election less than a month away call 1-866 -our-vote or visit www.866ourvote.org