Vot­ing rights on trial

The Washington Post Sunday - - OPINION SUNDAY - ruth­mar­cus@wash­post.com

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 old­fash­ioned 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 voter­reg­is­tra­tion 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.

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