Southern Discomfort? The Future of Voting Rights in the US

Supreme Court of the United States (Mark Wilson/Getty Images)
Supreme Court of the United States (Mark Wilson/Getty Images)

(The Root) — Like gleeful children released from detention, officials in Texas, Alabama, North Carolina and other states vowed to enact new voting restrictions just hours after the Supreme Court did their bidding and neutered the Voting Rights Act (pdf).

Free at last, they might as well have said.

"[Attorney General] Eric Holder can no longer deny Voter ID in Texas," tweeted Texas Attorney General Greg Abbott soon after Tuesday's decision.


Indeed, states like Texas and hundreds of communities nationwide now have unfettered authority to impose the kitchen sink of conservative-bred election changes that potentially disenfranchise minority voters, which is why the measures had been blocked by the Voting Rights Act before the court stripped the law of its key enforcement tool on Tuesday.

New voter-identification requirements, cuts in early balloting, the end of same-day registration and Sunday voting before Election Day ("souls to the polls"), gerrymandered districts, relocated polling places and more are now all in play.It's all happening in this open season on minority voting power.

How did America's greatest civil rights achievement, a law that had never lost a court challenge in 48 years, become vulnerable?

It began in June 2009. While many of us were still distracted by the wonderment of America's first black president, the Supreme Court placed in the crosshairs the law that helped bring about his election. Ruling in favor of a tiny utility district in Austin, Texas, the court upheld Section 5 of the Voting Rights Act. The provision, which is the central tool used to enforce the law, mandates strict federal oversight of voting procedures in jurisdictions with a history of discrimination. But the justices affirmed Section 5 through clenched teeth, issuing a warning that escaped the attention of most Americans.


"In part due to the success of that legislation, we are now a very different Nation … Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today," Chief Justice John Roberts said in the majority opinion. Continued enforcement, he wrote, "must be justified by current needs."

Current needs, not historical needs. In other words, it would be unconstitutional to keep mandating federal oversight of jurisdictions that no longer discriminate.


Roberts had carefully signaled that the court might finally be open to striking down the law in a future decision. For the first time in four decades, opponents had renewed hope, and they redoubled their fight.

A wave of new cases arose challenging the constitutionality of the law, driven by states trying to enact voter-ID requirements that the Justice Department had blocked. More challenges were filed in the past three years than in the previous 45. A record five lawsuits targeting Section 5 were filed last year alone.


Now that the challengers have become the winners, they are moving quickly to retake control of their local election procedures. The court's decision freed nine mostly Southern states and parts of eight others from complying with Section 5, which required the jurisdictions to obtain federal "preclearance" for voting changes.

The ruling also sends the law back to Congress to revise the preclearance formula. But such a complex, politically charged task isn't likely to get done anytime soon, given the hyperpartisan gridlock on Capitol Hill. Until then, Section 5 will remain dormant.


In the meantime, former preclearance states are busily exercising their newfound authority, particularly on measures that had been rejected as discriminatory under the Voting Rights Act. Here's a list of some of the states that now have the ability to go forward with their ready-made restriction plans: 

Texas: The state's photo-ID law is regarded as the strictest of its kind because voters must prove their citizenship and state residency. The law was blocked by the Justice Department in 2011 and a federal court in 2012, the argument being that it would discriminate against Latinos and African Americans. Attorney General Abbott also plans to enact redistricting maps that had been blocked by a court as a "deliberate" attempt to marginalize Democratic and Hispanic voters.


North Carolina: The Republican-controlled Legislature plans to pass an omnibus voting bill that would take effect in 2016 and impose a photo-ID requirement, reduce early voting, end Sunday voting before Election Day and same-day voter registration. Early and Sunday voting and same-day registration have been popular with black voters.

Alabama: A voter-ID law passed in 2011 wasn't submitted for preclearance, which is no longer necessary. The state plans to enact it for 2014.


Mississippi: The state plans to move ahead with a voter-ID law passed in 2012 that had been awaiting preclearance. The law would take effect in 2014. (Mississippi and North Carolina were the only preclearance states that signed on to an amicus brief in support of the Voting Rights Act.)

Arkansas: The Republican-controlled Legislature overrode a veto by the Democratic governor to pass a voter-ID bill, which will take effect in 2014. 


Corey Dade, an award-winning journalist based in Washington, D.C., is a former national correspondent at NPR and political reporter at the Wall Street Journal, the Boston Globe and other news organizations. Follow him on Twitter.

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