For all the understandable attention devoted to removing the Confederate flag from the South Carolina statehouse grounds, a civil rights struggle with far more practical consequences is playing out one state away.
In a trial that just began in a federal courthouse in North Carolina last week, lawyers for the Justice Department and civil rights organizations are challenging a state law that limited the days for early voting, ended same-day registration and barred voters who turned up at the wrong precinct.
The case presents the stark question: 50 years after its passage, does the Voting Rights Act retain any teeth?
Two years ago in Shelby County v. Holder, the Supreme Court gutted a central aspect of the law, the “pre-clearance” provision requiring nine states and political subdivisions, mostly in the South, to submit proposed changes in voting procedures for federal approval.
“Our country has changed,” Chief Justice John G. Roberts Jr. wrote for the five-justice majority. In any event, he noted, another key provision of the law remained intact. “Our decision,” Roberts wrote, “in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2.”
The North Carolina case tests the effectiveness of Section 2 in an age when voting discrimination does not take the ugly, obvious form of literacy tests or poll taxes. Rather, it involves “second-generation barriers,” such as racial gerrymandering to dilute African American votes. And, increasingly, provisions such as those in North Carolina, including photo ID requirements (the state eased its voter ID rules, so that part of the dispute is postponed).
That these seemingly colorblind rules have racial underpinnings, and therefore Voting Rights Act implications, is clear from the unsubtle timeline of the North Carolina law. Weeks after the high court’s ruling on the pre-clearance provisions, the Republican-dominated legislature, which had been weighing a narrower voter identification measure, introduced an expanded version unlikely to survive the pre-clearance procedure.
We all know what’s going on here. It’s not about race in the sense of old-fashioned bigots who don’t think blacks should be allowed to vote; it’s about race entwined with partisan, racially polarized politics. Depressing the African American vote benefits Republicans.
And the evidence is clear that changes such as those at issue in North Carolina disproportionately harm African American voters, who tend to have less access to photo identification, hold jobs that give them less flexibility to get to the polls on Election Day, move more frequently and have lower voter-registration rates.
As the Justice Department sets out in its pre-trial brief, “Black voters in North Carolina have consistently used early voting at higher rates than white voters in every federal general election since 2008.”
In particular, ending the first week of early voting eliminated a Sunday on which African American voters tended to go from church to polling places. In 2012, 43 percent of voters who cast ballots that day were African American. Coincidence? I think not.
The alleged justifications for these changes, preventing fraud and saving money, are laughably bogus. As the Justice Department notes, eliminating early voting days while keeping polls open for the same number of hours will be more expensive.
So will the court — ultimately, in all likelihood, will the Supreme Court — find that these practices violate Section 2? The law does not only prohibit voting practices and procedures that are intentionally discriminatory, although the Justice Department argues that it can show such intent. Rather, as amended in 1982, the law also prohibits practices that, based on the “totality of circumstances,” result in “denial or abridgement” of minorities’ right to vote.
North Carolina argues that the new law did no such thing. It notes that in the 2014 election, after the law took effect, African American turnout actually increased, and the number of African American state legislators is at an all-time high. But accepting this argument would punish civil rights groups for their post-legislation organizing efforts.
Still, this case and similar ones present a difficult exercise in line-drawing. Do states without any early voting or same-day registration violate the Voting Rights Act? How heavily does a state’s history weigh in the calculus?
Exorcising the hurtful symbols of past oppression is an important and powerful enterprise. So is dealing with modern impediments that fuse the toxic socioeconomic legacy of that oppression with seemingly innocuous practices, perpetuating political disenfranchisement.
Unfettered access to the levers of democracy is of fundamental importance in eradicating the blight of racism. What happens in North Carolina will inform us whether the remaining legislative tools are sufficient for that essential task.