If there were any doubt the Supreme Court erred badly in the term just ended by striking down a key provision of the Voting Rights Act designed to protect minorities' access to the polls in states with a history of voter discrimination, it's been dispelled by the swift reaction in states formerly covered by the law's pre-clearance requirement. Officials there have lost no time in using the ruling as a license to start discriminating again.
Barely two hours after the court declared unconstitutional Section 4 of the act, which determined which states were required to get Justice Department approval before changing election laws in ways that disproportionately affected minority voters, Texas' attorney general announced that a 2011 voter-ID law a lower court had blocked as discriminatory would go into effect "immediately." Over the next week, four more former pre-clearance states moved to tighten restrictions on voting.
Alabama and Mississippi now feel free to go ahead with plans to require voters to present a photo identification card before they are allowed to cast ballots in the states' 2014 primary elections. Officials there say they will issue photo IDs to voters who don't have them, but such a promise is easier made than fulfilled, and both states had earlier been blocked by the Justice Department from making the change because of concerns it had the potential to disenfranchise thousands of poor, minority and elderly voters.
In Virginia, a law passed by the legislature making driver's licenses, voter ID cards, student IDs and gun permits the only acceptable forms of voter identification is now slated to go into effect in July 2014. And North Carolina lawmakers are in the process of overhauling existing voting laws to mandate similar ID requirements and to cancel or curtail both Sunday and early voting. Moreover, these statewide requirements are coming on top of dozens of modifications of voting rules that local county and municipal elections officials are now free to enact.
Virtually all of these changes were previously challenged by the Justice Department as having a disproportionate impact on minority voters' ability to cast ballots, especially photo ID requirements and curbs on early voting.
The Brennan Center for Justice at New York University Law School, for example, estimates that some 21 million U.S. citizens, including a quarter of African-Americans, 18 percent of Americans over 65 and 16 percent of Hispanics do not have government-issued photo IDs. And according to the United States Elections Project at George Mason University, 27.4 percent of all early voters in North Carolina during the last election were African-Americans.
In striking down Section 4 of the Voting Rights Act, the Supreme Court's conservative majority said much has changed in the country and in the Deep South since 1965, when the law was first passed. The states designated for special federal oversight at that time clearly intentionally discriminated against African-American voters in order to deny them representation, and there were virtually no black elected officials in the states covered by the law. Since then, thousands of African-Americans have been elected to local, state and federal office throughout the South.
But Congress clearly felt minority voters still needed the Voting Right Act's protections when it renewed the law for another 25 years as recently as 2006. The court said the data the law was based on, which date back 50 years, do not reflect the realities of today, and that may be true to an extent. But it doesn't mean that discrimination against minority voters, in the South and elsewhere, is no longer a problem. Old habits die hard, and despite the election of the country's first black president, we are still a long way from achieving the colorblind society the civil rights laws sought to bring about.
The court left open the possibility that Congress could still act to protect minority voting rights by basing the government's power to intervene in cases where discrimination is suspected on more recent data. It's hard to imagine lawmakers being able to agree on much of anything, given the partisan gridlock in Congress today, but allowing states to turn back the clock on voting rights would represent a moral, legal and ethical failure that transcends politics because it goes to the heart of who we are as a nation and a people. We've been down that road and know where it leads. We don't want to go there again.