Section 2

  • October 2, 2014
    Guest Post

    by Kareem U. Crayton, associate professor of law, the University of North Carolina School of Law

    Voting has been described by the Supreme Court as “preservative of other basic civil and political rights.” So when law and policy leave voting insecure, the core project of governance itself faces grave risk. 

    During oral arguments preceding the June 2013 decision to invalidate a key feature of the Voting Rights Act in Shelby County v. Holder, Justice Anthony Kennedy dismissed concerns that voting would become less secure for racial minorities. Even absent Section 5’s preclearance oversight for states with egregious histories of discrimination, Kennedy asserted, Section 2 of the law would allow citizens to use traditional litigation to block discriminatory laws. A year into the post-Shelby County era, we have initial evidence of how this litigation has fared in practice.

    One test of Section 2 is playing out in North Carolina, where this week the 4th Circuit Court of Appeals ruled in favor of the North Carolina NAACP and allied groups in their challenge of a state law that is widely recognized as the nation’s most restrictive. The Court’s decision ordered a preliminary injunction for two provisions of the law – the elimination of same-day registration, and the prohibition of out-of-precinct ballots from being counted. The decision means that these rules will not apply in the November election, contrary to an earlier decision by a U.S. District Court to deny this preliminary injunction. A full trial regarding the merits of the law will go to court next July.

    According to the 4th Circuit, “The district court got the law plainly wrong in several crucial respects" in assessing whether North Carolina’s measure, known as H.B. 589, was likely in violation of Section 2. They continued, "When the applicable law is properly understood and applied to the facts as the district court portrayed them, it becomes clear that the district court abused its discretion in denying plaintiffs a preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect while the parties fight over the bill's legality."

    North Carolina’s H.B. 589 enacts multiple changes to the state’s election system. It eliminates same-day voter registration, prohibits out-of-precinct ballots from being counted, shortens the early voting period by a week, eliminates a successful pre-registration program for 16- and 17-year-olds, prohibits counties from extending Election Day poll hours to account extraordinary circumstances (such as long lines), permits poll observers to challenge voters, and implements a strict photo ID requirement.

  • August 9, 2010

    On the 45th anniversary of the Voting Rights Act of 1965, President Barack Obama called the Act "an affirmation that although the arc of the moral universe may be long, it bends toward justice."

    The chance for blacks to vote for Obama was itself was a major victory for blacks and the Voting Rights Act, writes Cord Jefferson for The Root, but "sadly, the good news ended there."

    Criminal disenfranchisement remains a major barrier to voting, Jefferson writes, citing Human Rights Watch statistics that nearly a third of all black men in Alabama and Florida are permanently disenfranchised by past convictions.

    "The issue of felon disenfranchisement turns the spotlight on some uncomfortable facts about who goes to prison in the United States, a country with the highest incarceration rate in the world," ACS board member Linda Greenhouse wrote in a column for The New York Times last month.

    In her column, Greenhouse, a Pulitzer Prize-winning journalist, highlighted an opportunity for the Obama administration to take leadership on the issue of felon disenfranchisement. The Supreme Court has asked the Office of the Solicitor General to take a position on whether laws that disenfranchise those in prison or on parole are a violation of the Section 2 of the Voting Rights Act.

    States have imposed other requirements that "restrain the right to vote," including a photo ID requirement in Indiana, and a system that relies on outdated information to verify citizenship in Georgia, writes CNN contributor Donna Brazile. Adds Brazile:

    Other states have enacted similar laws or have simply refused to comply with federal demands, perhaps betting that they are unlikely to face reprimand from an overburdened federal government. This year, an election administrator in Texas -- a state employee -- publicly mocked the Voting Rights Act's language minority protections, telling an audience that poll workers should simply speak in slow, broken English to Spanish-speaking voters. The administrator was fired.