The racism behind American voter ID laws
Last week, a federal appeals court struck down North Carolina's omnibus voter suppression law — a law so jam-packed with voting restrictions targeted at poor, minority communities that its moniker was the “monster law”.
The decision was handed down alongside a spate of other federal decisions in the past two weeks blocking voter restrictions and voter ID requirements in Wisconsin, Texas, North Dakota and Kansas. Some of these laws had been rushed through and passed after the United States Supreme Court's devastating 2013 blow to the Voting Rights Act, which for 50 years had protected voters from discriminatory laws such as poll taxes, literacy tests and the like.
Congress has refused to do anything to restore the law's protections, so litigation has remained the only real recourse for advocates trying to stop these voter suppression tactics that more and more state legislatures have been adopting.
Our organisation, the Campaign Legal Centre, has been fighting the Texas voter ID law in court alongside several civil rights groups. And after tireless years of lawsuits, and millions of dollars shouldered by the victims of discrimination, advocates are finally achieving what they set out to do: show that today's cleverly masked voting laws — passed under false pretences of stopping nonexistent in-person voter fraud — are no different from the tactics used during the Jim Crow era to maintain white political power.
In North Carolina, notably, the federal appeals court directly took on the underlying issue in voting rights today. The decision should be required reading for all state legislatures that are targeting black and Hispanic voters with onerous restrictions because of minority voters' well-known propensity to vote for Democrats. Their goal is to protect their own political power, but the legislators' method is racial discrimination.
The US Court of Appeals for the 4th Circuit, in its decision last week, held that the North Carolina state legislature acted to entrench itself and “it did so by targeting voters who, based on race, were unlikely to vote for the majority party. Even if done for partisan ends, that constituted racial discrimination”.
The court called this strategy what it is: racist. The panel wrote that “using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race's access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics”.
But outside of the courts, the public discussion around these laws has focused on politics, not race. After all, the partisan motive of the recent wave of voter restrictions is a poorly kept secret.
Several legislators, such as House Speaker Mike Turzai, from Pennsylvania, and the Wisconsin Republican Glenn Grothman, have slipped from the usual Republican line that voter ID laws are about preventing voter fraud and acknowledged that the goal is to give the GOP an edge on election day.
But given the demographic patterns of who votes for which party, the easiest way for them to gain that edge is by putting bureaucratic hurdles in place that make it harder for poor and elderly minority voters to cast ballots. Thus, race and politics are necessarily intertwined.
This racial strategy is just barely below the surface of many of these laws — they pick and choose voting restrictions that benefit whites while harming blacks and other minorities.
In North Carolina, the legislature requested racial data on the use of electoral mechanisms, then restricted all those disproportionately used by blacks, such as early voting, same-day registration and out-of-precinct voting. Absentee ballots, disproportionately used by white voters, were exempted from the voter ID requirement. The legislative record actually justified the elimination of one of the two days of Sunday voting because “counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic”.
The documents acceptable for proving voters' identity in North Carolina were the ones disproportionately held by whites, such as driver's licences, US passports and veteran and military IDs, and the ones that were left out were the ones often held by poor minority voters, such as student IDs, government employee IDs and public assistance IDs.
The Texas voter ID law was designed the same way: there, officials accepted concealed-weapon licences but not student or state employee IDs. The Texas legislature was repeatedly advised of the likely effect on minority voters, but rebuffed nearly all amendments that would have eased its harsh impact.
Because of the strong link between race and party, some defenders of the laws have argued that the restrictions are nothing but “politics as usual” — that they are not motivated by racial animus and are therefore lawful. For example, 5th Circuit Judge Edith Jones, dissenting in the Texas voter ID decision, wrote: “The law reflects party politics, not racism, and the majority of this court — in their hearts — know this.”
In North Carolina's legislature, Republican senators vigorously denied that the law was racially discriminatory. But at the same time, they admitted that the Bill rolled back voting expansions that, they believed, “Democrats passed to favour themselves”.
In other words, Republicans admitted that they wanted to limit how easy it is for people to vote because more access to the ballot box for black voters is bad for GOP candidates. The district court judge in the North Carolina case, who originally upheld the “monster law”, apparently held the same view; his opinion noted that the law largely removed voting expansions passed by Democrats when they controlled the legislature.
Lawmakers often use this “politics, not racism” line in redistricting cases, as well. In the recent past, Republican legislatures have packed black voters at unnecessarily high levels into a few districts, hoping to limit black voters' impact on the partisan balance in the rest of the state. When challenged, they claim politics made them do it. In Virginia, a three-judge federal court held that legislators racially gerrymandered the Democratic Republican Robert C. “Bobby” Scott's district, purposefully packing far more blacks into it than necessary. On appeal to the Supreme Court, prominent conservative lawyer Mike Carvin argued repeatedly that the legislators packed black voters for partisan reasons, not racial ones, as if that makes a difference.
But for the hundreds of thousands of black voters harmed by these discriminatory laws, the effect is the same, whether they were singled out as black voters to reduce their power at the ballot box because of direct racial animus or partisan objectives.
No doubt many Southern politicians supported Jim Crow before the civil rights movement as much because restrictions on black voters helped them to stay in power as because of any personal racism. The intent and the effect are the same: purposeful suppression of black voters' rights.
On the same day as the North Carolina decision, a Wisconsin federal court echoed this exact point. The court struck down restrictions on in-person absentee voting hours that were aimed specifically at limiting voting access in Milwaukee because of its large black population.
The court wrote: “Republicans sought to maintain control of the state government. But the methods that the legislature chose to achieve that result involved suppressing the votes of Milwaukee's residents, who are disproportionately African-American and Latino ... that, too, constitutes race discrimination.”
Excluding minority voters because they tend to vote for one party over another is nothing more than an attempt to remove minority voices from vital policy debates and to avoid addressing the political needs and demands of those communities.
With this recent wave of court decisions, federal judges, at long last, have signalled a strong message to states: seeking to target black and other minority voters for exclusion, regardless of motive, is unconstitutional and undemocratic, and it will not be tolerated.
To survive judicial scrutiny, state legislatures should now understand that they must consider and respond to the needs of our most vulnerable voters when crafting electoral procedures. This should foster more participation in politics at a time when voter apathy is high. That's good news for democracy.
•J. Gerald Hebert is executive director and director of litigation at Campaign Legal Centre and Danielle Lang, a voting rights counsel at Campaign Legal Centre, is a 2012 graduate of Yale Law School