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What You Should Know About DOJ’s Lawsuit Against America’s Worst Voter Suppression Law

What You Should Know About DOJ’s Lawsuit Against America’s Worst Voter Suppression Law

Written by Ian Millhiser

The Justice Department will filed a lawsuit challenging four parts of North Carolina’s recently enacted voter suppression law, invoking what remains of the Voting Rights Act since the five Republicans on the Supreme Court killed a key prong of the law last June. DOJ’s lawsuit alleges that four parts of the voter suppression law — North Carolina’s decision to cut early voting days, to require a photo ID to vote, to end same-day voter registration for early voters and to make it harder for voters who show up at the wrong polling place to vote — all justify placing the state under federal supervision to prevent it from disenfranchising voters.

Prior to the Supreme Court’s decision last June, many parts of the country that had historically engaged in race-based voter suppression — including much of North Carolina — were required to “preclear” any changes to their voting laws with the Justice Department or with a federal court in D.C. Almost immediately after the Court’s five Republicans tossed out this longstanding provision, lawmakers in the covered states began pushing voter suppression plans. Texas waited all of two hours to announce its plans to make it harder for many people of color to vote or to have their vote matter.

Yet, while the GOP justices’ decision did eliminate the existing formula for determining which parts of the country are subject to federal supervision, it did not disturb another part of the Voting Rights Act that could potentially bring many areas back under the federal umbrella. Under Section 3 of the Voting Rights Act, a state can be brought under the preclearance regime if a court finds that “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision” — thus states with a recent record of race-based voter suppression can be subject to federal supervision. DOJ’s lawsuit will allege that North Carolina’s voter suppression law fits this bill.

There is no question that North Carolina’s law will impact minority voters, in addition to other left-leaning constituencies. Take voter ID, for example. Voter ID’s defenders claim that these laws are necessary to prevent voter fraud at the polls, but such fraud is virtually non-existent. What voter ID does do is disproportionately disenfranchise many low-income voters, student voters and voters of color. Similarly, cuts to early voting limit longstanding get out the vote efforts in African American communities, in addition to preventing lower income voters who tend to have less job flexibility on election day from voting.

The challenge facing DOJ, however, is that it is probably not enough for DOJ to show that North Carolina’s law disenfranchises voters, or even that it intentionally disenfranchises some voters. Although there is very little precedent governing lawsuits brought under Section 3 of the Voting Rights Act, most informed observers believe that Section 3 requires DOJ to prove that North Carolina lawmakers enacted its voter suppression law with the intention of disenfranchising voters because of their race. Proving discriminatory intent, as opposed to discriminatory effects, is notoriously difficult.

In July, DOJ announced a similar lawsuit against the state of Texas, noting a recent federal court decision finding that Texas drew its legislative maps with discriminatory racial intent. Among other things, this lawsuit determined that Texas replaced “many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district's] Anglo citizens.” This will make it easy for DOJ to show intent to discriminate on the basis of race in Texas, but the Justice Department faces a different problem with that lawsuit. The Texas lawsuit will appeal to the notoriously conservative Fifth Circuit, a court whose former chief judge is currently under investigation due to allegations of racism. DOJ could have the strongest possible case against Texas, but it is still likely to face a skeptical panel of Fifth Circuit judges.

The North Carolina case, by contrast, will appeal to the Fourth Circuit, which is currently dominated by Clinton and Obama appointees.

Ultimately, however, any decision bringing Texas or North Carolina back under federal supervision runs the risk of reaching the Supreme Court’s bench. Unless a member of the conservative bloc retires before the case reaches that level, that means that the same five justices who gutted the Voting Rights Act will have the opportunity to decide whether their work should be undone in two key states.

UPDATE
The Justice Department’s complaint can be read here.

This post was originally published in ThinkProgress

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Photo Credit: Thinkstock

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93 comments

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3:29AM PDT on Oct 19, 2013

Why is our DOJ suing states? What about state's rights? That's what the civil war was really fought over.

10:16PM PDT on Oct 5, 2013

Thank you Ian for a good article and thanks to the 91 care 2 members that commented on this subject, I am enjoying reading all of them, This is very important. We can not let the Reptile Party get away with taking our voters rights away from us. They are closing voting locations, they are reducing days to vote, they are purging the rolls of democratic voters and that is illegal....THe lawyers and the supreme court has got to make them stop NOW....NOT LATER....IT will be too late in 2014 or 2016...we need good laws now....period.

10:26AM PDT on Oct 5, 2013

ty

4:17PM PDT on Oct 4, 2013

RECALL ALL REPUBLICANS!

2:28PM PDT on Oct 3, 2013

The GOP is Evil the GOP is Crazy the GOP has got to go VOTE 2014 & 2016 Bye Bye GOP !!!

12:33PM PDT on Oct 3, 2013

That is s legitimate concern Kimberlee. If there is anyone without a legal picture id, then the state should provide them a photo voter registration card, instead of the paper one. There should be no obstacles to bring allowed go vote. We should ensure that everyone has the opportunity to vote once, and only once, in any election.

8:45AM PDT on Oct 3, 2013

Some people will comment that it's not a big deal to provide identification.
But here's something that's not being discussed - WHAT qualifies to get identification?

Something else occurred to me - I wonder how many black folks were permillted to give birth in a Southern hospital in the 1950's? How about the '40's? '30's?
How many people in rural areas got the advantage of a birth certificate at the hospital back then? And I can't tell you how often someone loses their original papers. How difficult it might be to get identification replaced if lost without properly filed paperwork in the first place?
And if you're elderly? Sometimes it's easier to get confused than it used to.

Just some thoughts to consider when taking some things in Your life for-granted.

4:04AM PDT on Oct 3, 2013

TY Neil

3:16AM PDT on Oct 3, 2013

Dan B you are so right & Julie D & others if only peop;e stopvoting for the T party nutcases!

9:30PM PDT on Oct 2, 2013

LOVELY! Let's insure that we can never be proven to be disenfranchising anyone while we really are.

You know the old saying, "If it looks like a duck, smells like a duck, quacks like a duck it's not a pig.

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