Backsliding to disenfranchisement: How Justice Ginsburg’s Shelby warning may come true


Justice Ginsburg warned of this in her famous Shelby County v. Holder dissent in 2013. Eliminating Section 4 of the 1965 Voting Rights Act, the pre-clearance requirement for states that had a history of suppressing minority votes, would result in a return to racial discrimination and disenfranchisement, Ginsburg said. Prior to Shelby, states with such records had to get approval from either the Department of Justice or the D.C. Circuit Court of Appeals before changing any voting laws under Section 5 of the VRA.

Was her warning heeded?

Not in North Carolina.

This is a state that didn’t even wait to read her dissent, or likely the entirety of the majority decision, as they radically changed voting laws on the same day Shelby was decided. The backsliding in North Carolina did not come in the forms of first-generation voter suppression pervasive during the pre-VRA era like poll taxes, literacy tests, or banning entry to polling places. HB589, passed swiftly by the NC legislature and signed by Governor McCrory, required strict forms of voter identification, shortened the early voting period from 17 to 10 days before election day, eliminated same-day registration, prevented out-of-precinct ballots from being counted, and ended a successful pre-registration program for 16 and 17-year olds.

Alas, the 5-4 majority focused only on the progress made since the VRA was created saying “history did not end in 1965.” The Section 4 formula used to determine whether a state needed pre-clearance before they could change any of their voting policies was deemed antiquated, despite a reauthorization of the Act in 2006 by a nearly unanimous Congress (98-0 in the Senate, 390-33 in the House). Congress could and should get to work recalculating appropriate formulas for the states to curb vestiges of disenfranchisement based on racial discrimination. As a remedy, the Chief Justice reminded voters that if they experienced such discrimination they could always file a Section 2 lawsuit “which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.”

Fast forward three years later, Congress did what they always do (nothing) and while Section 2 claims pop up around the country, for those without the means to sue, it feels a bit too much like 1965.

According to Allison Riggs, an attorney for the Southern Coalition for Social Justice, North Carolina “picked up right where history left off in 1965.” HB589 not only disenfranchised hundreds of voters, but the legislature knew the law would have a disparate impact on racial minority voters. Riggs, along with two other attorneys defending the NAACP and North Carolinian voters, appeared in the 4th Circuit Court of Appeals June 21, 2016 in the first significant challenge to Shelby by a state that was once subject to the pre-clearance requirement. In a highly technical 80+ minute oral argument, the three women challenged advocates for the state of North Carolina, Thomas Farr and Alexander Peters, before a three-judge panel.

Most of the questions for both sides came from Obama-appointee Judge James Wynn and Clinton-appointee Judge Diana Gribbon Motz. Judge Henry Floyd, a George W. Bush appointee, spoke the least but offered the shortest, most critical assessment of the case to Mr. Farr. He said, “There was a surge in African-American voter registration ten years prior. The law changed, adversely affecting them, which would be the motives to protect your own political interests. The Republican Party got control of the House, Senate, and the Governorship, and the opportunity came to change those pretty liberal voter registration provisions with Shelby, and it happened on the same day Shelby was decided. That looks pretty bad to me in terms of purposeful discrimination.

Thomas Farr’s response was “I hope that I can persuade you that it was not a nefarious thing” and he further challenged the premises of Judge Floyd’s assessment.

It was clear from the judges questions and the lawyers  answers that, as the first batch of post-Shelby cases move out of the states and into the federal courts, few if any similar precedents exist for the judges to defer to.

The timeline issue was of great concern to both sides during oral arguments. On the one hand, Ms. Riggs assured the judges “there’s ample time” for them to issue a ruling and for the NC Board of Elections to set up systems to provide voter education and new registration policies. Judge Motz asked Mr. Peters if there is any way the judges could issue an opinion that would do anything given the timeline? His response was “No, except for pre-registration.” Election official training is already set for August 8-9th and there are only seven weeks before those rules and materials are sent out.

The added pressure of the timeline and proximity to the elections makes this case ripe for a hasty decision that will no doubt accelerate the losing side’s request to appeal to the Supreme Court. Although, by the time the SCOTUS begins its next term, there will only be four weeks until the election.

The Supreme Court tossed the VRA back to Congress to rewrite in 2013, but that won’t happen with this (or seemingly any) Congress. States will always move much faster on such issues than Congress ever could, and let’s be honest, if they can’t reach a compromise on gun policies immediately after the worst terrorist attack/hate crime/shooting in more than a decade, I have zero faith.

I suppose giving some credit to Congress, a couple bipartisan bills to rewrite the Voting Rights Act (VRAA) have been proposed, but never materialized. Once again, House and Senate, thanks for nothing trying.

The only way we’ll know how much we’ve slid back to 1965 is if the justices tells us if/when this case is appealed to the Supreme Court.

This case is North Carolina State Conference of the NAACP v. Patrick McCroryA decision is expected in the coming weeks.