by Julie Ebenstein, Staff Attorney, Voting Rights Project, American Civil Liberties Union
*This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.
Just days before the 50th anniversary of the Voting Rights Act, we completed a three-week trial challenging North Carolina’s sweeping anti-voter law.
In 2013, soon after the U.S. Supreme Court struck down Section 4 of the Voting Rights Act - and with it, the preclearance protections of Section 5 - North Carolina passed an election law shocking in its lack of a valid purpose and its extensive abridgement of citizens’ right to vote. The challenged provisions of the law reduced the number of days for early voting, eliminated same-day-registration, and prohibited out-of-precinct Election Day voting. Cumulatively, the law is one of the most repressive elections bills seen in decades. The law exemplifies a “second generation” barrier to voting. It created broad, structural impediments to electoral participation, in part on the basis of race, and will likely impact hundreds of thousands of voters in the upcoming presidential election.
In the pre-2013 world, the law would not likely have survived Section 5 preclearance, and thus, would never have been implemented. But the absence of Section 5’s protection has created a severe disadvantage for voters challenging state’s vote denial measures. Our lawsuit, filed the day the law was implemented, illustrates some of the obstacles to protecting voting rights in the post-Shelby era.
Section 2’s prohibition on racial discrimination is one of the remaining tools to protect the franchise, but it requires that litigation take place after a law has already gone into effect. As such, the advantages of time and inertia have shifted back to the perpetrators of voter suppression and away from its victims. Section 2 cases are fact intensive, time-consuming and resource-intensive undertakings. With constant election cycles, there is no guarantee that the legality of state election laws will be determined before voters are irreversibly disenfranchised.
The 2014 federal election provides numerous examples. In late 2014, we saw rapid-fire orders by the U.S. Supreme Court, instructing the Sixth, Fourth, Seventh and Fifth Circuits to put election-related decisions on hold until after the election. Over the course of three weeks, the U.S. Supreme Court made four determinations that affected voting rights in key federal elections. On September 29, 2014, the Court stayed an Ohio district court decision, upheld by a Sixth Circuit appeals panel, enjoining the state’s cuts to early voting. The following week, on October 8, the Court stayed the Fourth Circuit mandate to reinstate same-day registration and out-of-precinct voting, after the district court declined to enjoin the practices. The next day, the Court vacated the Seventh Circuit’s stay of a Wisconsin district court’s permanent injunction of the state’s strict voter ID law. On October 18, the Court denied applications to vacate the Fifth Circuit’s stay of a decision enjoining Texas’s voter ID law.