Business & Practice

Voting Rights: New Laws, New Cases After U.S. Supreme Court Ruling

Oct. 18, 2016, 6:26 PM

By Mark Niquette, Bloomberg News

Some court rulings end fights. Others rev them up. Courts and legislatures across the U.S. continue to grapple with a big question the Supreme Court tossed onto the political battlefield in 2013: Has the country overcome its history of racial discrimination enough to justify relaxing laws against it? Since the court voted to throw out a core element of the 1965Voting Rights Act , many of the states that until then had faced restrictions on election-law changes pushed forward with measures to tighten eligibility requirements for casting a ballot. The states that took action, all with Republican governors at the time, said they were cracking down on voter fraud. Opponents said their real purpose was to make it harder for blacks and Hispanics to vote. As the 2016 election approached, a growing number of courts agreed — but Republican presidential candidate Donald Trump increasingly focused his campaign on the prospect of fraud and a “rigged” election.

The Situation

Shortly after the Republican convention, Trump began towarn that without strict ID laws, people “are going to vote 10 times.” As his poll numbers fell, he escalated his questioning of the U.S. electoral system’s integrity, asserting large-scale “voter fraud” was already underway, and he called for supporters to monitor polls incertain areas” on Election Day. By contrast, Hillary Clinton, the Democratic presidential candidate, has called for universal voter registration and national early voting. In the courts, federal judges pushed back against laws imposing new voting requirements or limits in Texas, North Carolina, Wisconsin, Kansas, North Dakota and Ohio. In the North Carolina case, a federal appeals court ruled that the Republican-controlled legislature had targeted black voterswith almost surgical precision.” The laws had been part of a surge in new voting restrictions passed by state governments controlled by Republicans after the Supreme Court stripped the federal government of the right to block them preemptively. After its loss in court, Texas agreed to allow voters to use more kinds of documents to prove their identity. But even with the latest rulings, 15 states will have new voting restrictions for the first time in a presidential election this year.

The Background

The 1965 Voting Rights Act enfranchised millions of black people in the South who had been barred from voting by poll taxes, literacy tests and other such laws. One of its key provisions, Section 5 , required that changes in district lines or other matters related to voting be pre-approved by the Justice Department in areas determined by a formula that looked at voter registration rates, turnout and ballot-box rules in the 1960s and early 1970s. The pre-clearance provisions were applied to most of the South along with Alaska and Arizona and small pockets of states including California, Michigan and New York. Over the years, Congress used Section 5 to block thousands of proposed changes. The act was renewed in 2006 by large bipartisan majorities and signed into law by President George W. Bush, a Republican. In June 2013, writing in a 5-4 decision , Chief Justice John Roberts ruled that Congress had erred in leaving the list of covered areas unchanged for decades despite progress in reducing racial discrimination. The law still allows for challenges to voting rules on the basis of discrimination under another provision, Section 2 — but those challenges can only come after a law has been enacted, and plaintiffs carry the burden of proof. A bipartisan bill to amend the act would address Roberts’s objections by updating the criteria used to single out states and counties, but has failed to gain enough support to move forward.

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The Argument

Supporters of the Supreme Court ruling say the Voting Rights Act has served its purpose and that if any state is sanctioned with federal oversight, all states should be. Republicans say the new election laws are meant to ensure election integrity by imposing reasonable requirements, similar to those for boarding an airplane or cashing a check. Democrats respond by pointing to studies showing that voter fraud is extremely rare. Evidence in the Texas trial suggested that only two instances of in-person voter fraud had been found among the 62 million ballots cast in the state in the previous 14 years and the judge in the Wisconsin case called it a “mostly phantom” problem. Both parties agree that fraud is more common in absentee ballots, but none of the new laws addressed that subject. While more court rulings are expected before the November election, the decisions handed down in July could be an indication that the courts are moving to rein in efforts to tighten voting requirements even under a weakened Voting Rights Act.

The Reference Shelf

  • Read the U.S. Supreme Court ruling on the Voting Rights Act of 1965 here.

  • A chart by Bloomberg Visual Data on the history of enforcement of the Voting Rights law.

  • The National Conference of State Legislatures has a database of changes in state election laws and a breakdown of state voter identification requirements.

  • The Brennan Center for Justice has compiled a list of studies on the impact of voter ID laws.

(This QuickTake includes a corrected reference to Supreme Court rulings on voting laws of Ohio, North Carolina and Wisconsin.)

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To contact the writer of this QuickTake: Mark Niquette in Columbus atmniquette@bloomberg.net

To contact the editor responsible for this QuickTake: John O’Neil atjoneil18@bloomberg.net

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