The Voting Rights Act, originally enacted in 1965, required that certain states with a history of racial discrimination obtain prior approval – “preclearance,” in the terms of the law – before those states would be permitted to change their voting laws. The U.S. Supreme Court, in 2013, in a case called Shelby County v. Holder, decided that there was no longer a need for “preclearance” under constitutional law, and invalidated that part of the Voting Rights Act. The SCOTUS specifically rejected the argument that “preclearance” served an important deterrent effect:
Respondents do not deny that there have been improvements on the ground, but argue that much of this can be attributed to the deterrent effect of §5, which dissuades covered jurisdictions from engaging in discrimination that they would resume should §5 be struck down. Under this theory, however, §5 would be effectively immune from scrutiny; no matter how “clean” the record of covered jurisdictions, the argument could always be made that it was deterrence that accounted for the good behavior.
So, beginning in 2013, states like, say, Texas and North Carolina, with a long history of Jim Crow laws, were free to change their voting laws without the prior approval of the U.S. Department of Justice. Because, the majority of the SCOTUS said, the deterrent effect of “preclearance” was no longer necessary.
Less than two years later, several states, including North Carolina and Texas, put Jim Crow laws back on their books. The laws restricted voter registration, required very burdensome identification requirements, and cut back on early voting and out-of-precinct voting. All in the name of preventing voter fraud. It was just a coincidence, said the North Carolina Legislature, that all those “anti-fraud” requirements overwhelmingly impacted African-Americans who might, you know, vote Democratic.
The North Carolina statute was challenged by a small army of folks, including the U.S. Department of Justice. On June 25, 2016, the 4th Circuit Court of Appeals, where North Carolina is located, pitched the statute out. The Fourth Circuit said,
Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation. “In essence,” as in League of United Latin American Citizens v. Perry (LULAC), 548 U.S. 399, 440 (2006), “the State took away [minority voters’] opportunity because [they] were about to exercise it.” As in LULAC, “[t]his bears the mark of intentional discrimination.”
The decision in North Carolina v. Doe, is an item-by-item dismantling of North Carolina’s flimsy excuses.
Texas adopted a similar law, SB 14, imposing rigorous voter identification requirements in the name of preventing voter fraud. The Fifth Circuit in Veasey v. Abbot, found that minority voters “faced an almost impossible bureaucratic morass when they tried to get the required underlying documentation.” The Fifth Circuit concluded, “[T] district court did not clearly err in determining that SB 14 has a discriminatory effect on minorities’ voting rights in violation of Section 2 of the Voting Rights Act.” In all probability, the State of Texas will be barred from attempting to enforce SB 14’s discriminatory intent in the November 2016.
There’s a clear lesson from North Carolina v. Doe and Veasey v. Abbott: Section 5 of the Voting Rights Act, the requirement of federal preclearance before changes in voting laws of states like North Carolina and Texas, absolute did operate as a deterrent and remains as necessary today as in 1964. The U.S. Supreme Court got it wrong in Shelby County. The SCOTUS, if Veasey or North Carolina end up there, needs to admit its error and reverse Shelby County.