Hillary Clinton, the former secretary of state and Democratic frontrunner, called in June for universal voter registration and national early voting, arguing that such measures are necessary to counteract a tide of laws aimed at making it more difficult for some people to vote. Her proposals are in stark contrast to the positions taken by most of the Republican candidates, although Senator Rand Paul of Kentucky has bucked his party by favoring the restoration of voting rights for felons. President Barack Obama has called for Congress to renew the Voting Rights Act, but few expect action on what has become a polarized partisan issue. In the wake of strong Republican victories in the 2014 midterm elections, one analysis suggested that the changes in voting rights laws had not made much effect on turnout. But they are likely to remain contested. In August 2015, a federal appeals court ruled that Texas’s strict voter-identification law discriminates against minority voters. It returned the case to the lower court to consider how to fix the law. In October 2014, the U.S. Supreme Court allowed restrictions on early voting in Ohio and on same-day registration in North Carolina. It blocked a Wisconsin law requiring voters to have photo identification, but in 2015 the law was upheld. The Justice Department and voter advocacy groups filed the court challenges in response to a surge in new voting restrictions passed by state governments controlled by Republicans, a number of which, like the laws in Texas and North Carolina, came after the Supreme Court stripped the federal government of the right to block them preemptively.
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. The bipartisan bill to amend the act would address Roberts’s objections by updating the criteria used to single out states and counties.
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. Both parties agree that fraud is more common in absentee ballots, but none of the new laws addressed that subject. Beyond the specific cases lies a broader debate over how potent a force discrimination still is in American life, and how to separate race and politics when minorities increasingly identify with one party. In one particularly bold assertion, Texas responded to Justice Department complaints about redistricting maps produced by Republicans in 2011 by saying that the changes weren’t aimed at minorities but were purely partisan moves “designed to increase the Republican Party’s electoral prospects at the expense of the Democrats” — something the Supreme Court has already found to be constitutional.
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.
- ProPublica’s map of changes in state voting laws since the court’s decision.
(This QuickTake includes a corrected reference to Supreme Court rulings on voting laws of Ohio, North Carolina and Wisconsin.)