Will the Supreme Court Open the Door to Voter Discrimination?

In Shelby v. Holder, conservatives justices may seize an opportunity to scale back the Voting Rights Act, a 1965 law safeguarding Americans from discrimination at the ballot box

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Daniel Acker / Bloomberg / Getty Images

Voters wait in line outside a polling station during U.S. presidential election day in Chicago, Nov. 6, 2012.

Our election system is a mess. Voters wait more than seven hours to vote in some places and minority voters wait twice as long on average as whites. In some states, voter ID laws are so tough that elderly nuns are turned away at the polls because they lack drivers’ licenses or other official ID.

In another era, the Supreme Court might have stepped up and done something to fix our democracy. But this Supreme Court left the voters standing in the sun for hours and the nuns to fend for themselves. Other than vindicating the right of corporations to spend unlimited amounts of money on elections in 2010’s Citizens United v. FEC, the court has not had a lot to say about how elections should be run.

Now, the Supreme Court appears to be poised to make a major change in American democracy by gutting the Voting Rights Act. The court will hear arguments Wednesday in Shelby County v. Holder, which challenges section 5 of the Act – a key provision that allows the Justice Department to block state election practices that make it difficult for minorities to vote.

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It is hard to believe the court is really considering striking down section 5. The Voting Rights Act has been a revered part of American law since 1965, when Congress passed it to end the systematic disenfranchisement of blacks in the South. For decades, it enjoyed bipartisan support. The last two laws reauthorizing it were signed by Ronald Reagan and George W. Bush. The Supreme Court has upheld it four times.

Section 5 contains the Act’s famous “pre-clearance” requirement. Jurisdictions in all or part of 16 states – most, though not all, in the South – have to “pre-clear” changes in voting procedures with the federal government. The Justice Department must determine that the proposed changes will not deny or abridge the voting rights of minorities.

Section 5 protects voters – including, indirectly, white voters – from all sorts of schemes. If election officials try to change the location of a polling place at the last minute to confuse voters, the Justice Department can stop it. District lines that are drawn to stop minorities from being elected; ballots that are difficult to understand; last-minute changes in voter ID or voting hours – all of these can be challenged under the Voting Rights Act.

(MORE: How We Can Reform Our Elections)

Despite its bipartisan support in Congress and the White House, conservatives on the Supreme Court have reservations about section 5. In a 2009 ruling, Chief Justice John Roberts warned that the “pre-clearance” requirement raises “serious constitutional questions.” The court dodged the question of whether section 5 is constitutional in 2009, but this week’s case is likely to squarely address that question.

Shelby County – the largely white Alabama county bringing this challenge – and other jurisdictions want to get the Justice Department out of their elections. As a constitutional matter, they are arguing that Congress did not have the power to pass Section 5. In recent years, the Supreme Court has held that for Congress to enact civil rights laws under the 14th Amendment there must be “congruence and proportionality” between the harm it is addressing and the methods it is using. The court has used this dubious rule to strike down congressional laws protecting Americans from a wide variety of harms, including age discrimination and gender-based violence.

This is the first problem with this challenge to the Voting Rights Act: It is another dangerous attempt to prevent Congress from doing its job. The Constitution gives Congress broad power to pass civil rights laws. But the court’s conservative justices refuse to recognize that. At his confirmation hearings, Chief Justice Roberts told the Senate that he saw his role as being an “umpire,” calling balls and strikes. If he and his fellow conservatives strike down Section 5, they would be taking Congress’s place in the batter’s box and swinging for the bleachers.

(MORE: How to Solve the Voter ID Debate)

The second problem with this challenge is what it could mean for how elections work. If section 5 is struck down, it will free up majority-white legislatures to draw district lines making it difficult or impossible for minorities to elect representatives. And it would make it harder to challenge last-minute changes in polling places, intentionally confusing ballots, and a wide variety of other campaign dirty tricks that people in power often resort to when they want to win.

In its campaign finance rulings, the Supreme Court has made it far easier for corporations to influence elections with their money. It would be a terrible thing for democracy if the court used this case to make it harder for actual voters to influence elections with their ballots.

35 comments
kjeroh
kjeroh

@maryellen116 I believe every citizen should have a photo ID. In these times, they are a necessity. Some balance has to be struck in allowing some ease and affordability in obtaining one, without it being too easy. (Identity theft is already easy enough.) But if the proffered answer results in thousands of eligible voters denied access, then another route has to be found. As someone trying to make it on Social Security Disability and as embarrassing as it is, I can assure you that an extra $20 can be a burden.

kjeroh
kjeroh

@rohit57 I never said that people should be able to vote without ID. I agreed that if a state is going to make only its own photo ID acceptable, that it put the apparatus in place to handle the surge in applications. However, if a set of regulations would make it impossible for thousands of eligible voters unable to do so, then those regulations should be struck down. What I believe more than anything is that voting should be encouraged, not suppressed; that massive turnout with each election – from school board to president – is the only way to have the will of the people affirmed. Voter fraud only helps the political parties and not the people, the locality, municipality, state or nation. Organized voter fraud, when found, should be prosecuted as a treason.

rohit57
rohit57

There is a joke that Lyndon Johnson used to tell ont himself. 

A little black boy is sitting on the stoop of his house and crying his heart out. 

"Why are you crying?" asks a neighbour.

"My Dad was in town and did not come to see me."

"But your Dad has been dead for five years!"

"No, my Dad was in town and voted for Lyndon Johnson and did not come to see me" says the boy.

ErnieKaputnik
ErnieKaputnik

Appears the professional progressive establishment is preparing their official argument as follows:


1.  National ID = Good

2. Voter ID = Bad


Does not compute.

MichellePastor
MichellePastor

ID's are required for everything in this country, except voting? There is no other civilized country that does not require identification. This is a case study in journalistic spin. Google "2012 election voter fraud", and see the thousands of articles that come up. In every swing state there were thousand of cases of dead voters, people voting numerous times, felons voting, missing absentee ballots, etc. The fraud has never been so rampant, and the media silence doesn't make it dissapear. There are still pending lawsuits. It is a major problem.

IrwinBusk
IrwinBusk

Why do so very many people seem to think the US is a democracy ?   It is not.  Our founding fathers never meant for it to be.  The US is a Representative Republic.   There is a large difference.     

mbhposter
mbhposter

The problem is that the law that is meant to prevent discrimincation in fact at this point is now arbitrary and discriminatory in and of itself. It singles out localities and states that had issues 50 years ago! It wastes federal money. If you believe in the law, you should want a vote to have it include ALL states. And nothing prevents anyone from challenging any policy that they believe is discriminatory. You don't need this law. Its superfulous.

mickey66049
mickey66049

I think that the reason the five conservative justices want to strike down the 1965 Voting Rights Act is to limi the number of voters who tend to vote for Democrats. Why? Because they are hoping for a Republican president who will nominate more conservatives to join them. It's a shame to think that the Court has become so political, but between them the two Presidents Bush have managed to turn it into an arm of the GOP. Witness the fact that Justices Scalia and Thomas are frequent guests of the Koch Brothers, who spend millions on their efforts to buy elections for Republicans. They certainly have those two justices in their pocket.

JohnDoeman
JohnDoeman

Cohen, like most jews, should learn that America is not a democracy.

“The Democracy will cease to exist when you take away from those who are willing to work and give to those who would not.” 
― Thomas Jefferson

“A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.” 
― Thomas Jefferson

“Democracy never lasts long. It soon wastes, exhausts and murders itself. There was never a democracy that did not commit suicide.” 
― John Adams

“A democracy cannot exist as a permanent form of government. It can only exist until the majority discovers it can vote itself largess out of the public treasury. After that, the majority always votes for the candidate promising the most benefits with the result the democracy collapses because of the loose fiscal policy ensuing, always to be followed by a dictatorship, then a monarchy.” 
― Elmer T Peterson

“You don't spread democracy with a barrel of a gun.” 
― Helen Thomas

EQ8Rhomes
EQ8Rhomes

Democracy is more than the act of voting. Voter suppression is  anti-democratic and infringes upon a citizen's freedom to elect government. Voter fraud is NOT a reason to suppress voters on the grounds of ethnicity, poverty, or geographical location.

ANYONE who advocates voter discrimination in the USA is either racist, undemocratic, or just power hungry. Replacing one form of voting fraud with another is NOT DEMOCRATIC! canadian Conservatives have Robocall tactics to confuse and  suppress non-Con voters. USA has Cons allowing legislated voter suppression. Way to spread democracy to  other nations by waging  war! 

kjeroh
kjeroh

@rohit57 

I agree completely that if a state is going to demand photo IDs that they can't make the process so difficult that it will more likely restrict than encourage voting. The more who participate in each and every election (not just the one for the finger on the button) the more likely grassroots concerns will be addressed. I'm hardcore independent since 1984 and view Democrat and Republican the way George Washington painted political parties in his farewell address: they seek to divide on minor differences rather than unite on our many similarities. They strive more for power of their party than the strength of the nation. Voter fraud benefits a party rather than the people and I believe it should be stamped out wherever it appears. However, when the proposed method could make it impossible for tens of thousands to be kept from voting -- another avenue must be explored. 

And if organized voter fraud is discovered, I wouldn't be adverse to the organizers being charged and tried with treason.

kjeroh
kjeroh

You still have to have fraud to prevent it. State officials were challenged to present examples to justify these measures and all failed to do so. And it is disenfranchising if it will hit a certain voting public particularly hard. As I said, until you have tried to get a state issued photo ID, you cannot talk about how easy it is. Some of the states that imposed the measures made no effort to increase the apparatus to handle the extra applications, guaranteeing that the elderly, the young, the disabled, in particular would be hard set to vote.

Robert2011GB
Robert2011GB

Clarence Thomas will be remembered as the worst ever Supreme Court judge and a traitor to the black community. How fitting that that Uncle should have Thomas as his surname.

kjeroh
kjeroh

You can only prove fraud by cases brought. Saying it must be happening because your favorites lose is no argument for imposing measures that actually cause voter suppression. If voter fraud were so widespread, where are the cases challenging the fraud? Republicans were challenged repeatedly to provide examples that would justify such weighty measures as state issued photo IDs and they failed to do so. Saying it is happening does not make it so.

LorettaSigenthaler
LorettaSigenthaler

RE: "they are arguing that Congress did not have the power to pass Section 5"

On the contrary.  Their argument is that the emergency situation (ongoing discrimination preventing blacks from fully exercising their voting rights in some states) that caused the U.S. Supreme Court to rule Section 5 constitutional in the 1960s no longer exists, and, in deed, it is difficult to argue that it still exists.  Seen any southern governors at schoolhouse doors lately?

jhimmimartel
jhimmimartel

Section 5 of the VRA is an anachronism and violates equal protection. If you want states to require pre-clearance, require all states to get it. Section 5 doesn't prohibit California from removing all checks and controls at the ballot box, or Illinois from only opening polls in downtown Chicago. But it prevents Texas from trying to make sure voters are who they say they are? Really?

rohit57
rohit57

I think requiring IDs so you can vote is a perfectly rational requirement and Democrats are just acting like fools.  Long waits to vote are a different matter.  People should be able to vote in 15 minutes.   But you should not tie the two issues together.  And as for Citizens United, I agree also that it was a bad decision, but I do not see the relevance here.

ralphwiggummm
ralphwiggummm

Funny how when the voting districts are drawn in favor of democrats it is characterized as a triumph, but when they are drawn in favor of republicans it becomes a voting rights issue. I have no problem voting. If I fill out forms I can vote early from my home with absentee ballots. If my drivers license is needed for identification I bring it. And if voting is so important to me, I would get a state id and use that to identify myself. It seems that providing for someone else to cast my ballot fraudulently is a more important issue than making me plan ahead to cast my own ballot. These fulminations by democrats in this article are just an example of a bunch sore-heads trying to hijack our system of government so they can maintain power. 

JPFredette
JPFredette

How about you stop letting politicians decide anything about how an election proceeds. Most democracies have non political commissions do this.

eagle11772
eagle11772

I agree.  There is NO federal constitutional "right to vote".  Many states did not even allow their citizens to vote for electors for POTUS until 50 years AFTER the U.S. Constitution was ratified.  And since The Obamaniac has been bypassing the Republican-majority House, which U.S. citizens elected, and is simply ruling by decree, while murdering Americans overseas by "drone strike", apparently The Obamaniac doesn't believe that voting is of any consequence either.

rohit57
rohit57

@famulla5 The decrease in capital gains tax from 29% to 21% took place under Bill Clinton.

I too criticize some things about Republicans, but many people posting here tend to assume that everything bad comes from the Republicans.  The world is not so simple.  Sometimes something bad happens from other factors, and sometimes it comes from the actions of Democrats.

The particular crop of Republicans is not particularly inspiring.  But there is an enormous reluctance on the part of Democrats to face up to facts or even find them out.   We cannot solve our problems if we thing that Republican bashing solves everything.  Greece is in deep trouble and one third of the population is jobless.  This was NOT done by Republicans.

maryellen116
maryellen116

@kjeroh I can absolutely see the reasoning behind requiring ID to vote. It's kind of obvious. BUT, you're also correct that the process should not restrict voting, especially when it seems to restrict certain groups more than others. 


Just my own experience- Most of the people I saw who had problems with voter ID rules here in TN were elderly people who haven't driven a car in years, use debit cards for everything, and simply saw no need to have a state ID. These were the people who had trouble getting to a DMV office, because they don't drive, and also were more likely to be lacking documents like birth certificates or social security cards. I went through a Kafka-esque nightmare a couple years ago when I lost my wallet and realized that my birth certificate had gone missing over the years- you can't get a birth certificate without a state-issued photo ID, which you can't get without a birth certificate. I straightened this out, but it was a major hassle, and I'm a lot more accustomed to using computers, scanners and fax machines than the average senior citizen. Also, the birth certificate (from NY) cost me 70 bucks, which might be a lot to someone on a fixed income.

rohit57
rohit57

@kjeroh The library where I teach routinely requires IDs even to enter the library let alone take books out.  And they DID NOT WAIT FOR ORGANIZED FRAUD TO BE DISCOVERED.

You are making an unreasonable demand that people should be able to elect the man with his finger on the nuclear button, which could wipe us all out, and without even showing an ID.

It is likely that the Republicans believe that non-ID voters would tend to vote Democratic and there is some truth to that.  But it could also be that the so called white trash also do not have IDs and tend to vote Republican.

Asking for an ID is a totally rational requirement and Democrats making a fuss about it are merely politicking.

rohit57
rohit57

@LorettaSigenthaler Loretta you are right.  The two governors of Louisiana and South Carolina are neither of them white and Nikki Haley just nominated a black man to be senator until 2014.

To pretend that nothing has changed over the last fifty years is simply dishonest and proves to me that Democrats play games just like the other party.

sixtymile
sixtymile

@LorettaSigenthaler If true that would still be a legislative matter not judicial. Courts do not get to decide which laws are wise or unnecessary, only that they are Constitutionally justified and fairly applied. Discrimination by race and class still exists and likely always will in various devious forms not so obvious as blocking doors and throwing rocks.

kjeroh
kjeroh

@rohit57 The question is not requiring ID. The question is requiring state issued photo ID to solve a problem that doesn't exist. Less than one tenth of one percent of votes cast over the past decade constituted an attempt at voter fraud. The conditions under which the attempts were made can be solved at the polls. Why create a solution where there is no problem? State issued non-driver's license are not easy to obtain. (Remember, state issued. That means military ID doesn't count.) It took me over a year to obtain my NYS photo ID. After being disabled by a spinal injury I had to get one to open a banking account. (I had used a thin piece of cardboard to cash my checks at a bank, but couldn't use it keep money at the bank!) The number of supporting documents proved impossible to meet so only an appeal to the governor made it possible to receive one. Republican officials have admitted that the photo ID regulations are solely to disenfranchise. We should, each and every one of us, resist any measure designed to keep a single citizen from voting, and toss anyone who would attempt to do so.

sixtymile
sixtymile

@JPFredetteNice solution in theory I would say. Wha'tsa "non-political commission" look like? How do we get one? We are supposed to have that where I am but there were efforts to remove members, de-fund it, or throw out the results, all by political action, so it seems if there is a political outcome then it's political by nature. There are not many non-partisans out there who would be willing to do this, assuming there are any at all.

rohit57
rohit57

@kjeroh @rohit57 I would be in favor of the states subsidizing voter registration so that people would find it easy to get IDs.  Such IDs can then also be used for a lot of other purposes, to travel by air (even Amtrak requries an ID) or to open a bank account.  But I think that requiring IDs when deciding who will have his finger on the nuclear button makes rational sense.  

LorettaSigenthaler
LorettaSigenthaler

@kjeroh @rohit57 "Republican officials have admitted that the photo ID regulations are solely to disenfranchise."

Incorrect.  A Republican state senator in one state said it could help Romney win PA by reducing pro-Obama fraud.  Preventing fraud is not the same thing as disenfranchising.

jhimmimartel
jhimmimartel

@kjeroh 
@rohit57  How do you prove voter fraud when there's no check on who's actually voting? Or how the votes are counted and tallied? How do you think we get situations where more votes are cast than there are registered voters (see Philadelphia)? This is a really specious argument - if there are little or no controls on voting registration and at the ballot box, how would you ever catch fraud? That's like abolishing speed limits and then saying nobody speeds because there are no convictions for speeding.

maryellen116
maryellen116

@sixtymile @JPFredette 

Doesn't Iowa  have some sort of non-partisan election commission to decide rules and draw voting districts and stuff like that? I hear the pundits extol their system during every Iowa primary. It sounds very good in theory- anyone from Iowa have an opinion on how it's working in real life?

GarySteele
GarySteele

That would be quite acceptable and I would be in favor of such a subsidy.

sixtymile
sixtymile

@LorettaSigenthaler This implies the deciding votes were a fraud. Implies that the results of the last election were fraudulent merely because you dislike the result. Clearly an example of someone who wants to alter the vote where there is no actual evidence to support any significant claim of fraud.