Over the course of two weeks, voting restrictions passed in the wake of the 2013 Shelby County v. Holder decision have been struck down in three different states — Texas, North Carolina and Wisconsin.
The Fourth Circuit Court of Appeals, which heard the case from North Carolina, ruled that the law was unconstitutional because it was “passed with racially discriminatory intent.” The decision, in N.C. State Conference of the NAACP v. Patrick McCrory, was handed down on Friday, July 29.
The appeals court reversed a lower ruling by the district court, based in Winston-Salem, NC, which failed to find the racially discriminatory intent necessary to block the law. The lower court, reasons the appeals court majority, missed the forest for the trees. Race and politics are inextricably tied in North Carolina; race highly correlates with one’s choice for elected office. Thus, most voting laws contain more than a kernel of intent to discriminate on the basis of race.
North Carolina achieved near parity between races with voter registration by 2013. But that year’s Shelby County v. Holder, a Supreme Court decision that dismantled much of the ability of the federal government, under the 1965 Voting Rights Act, to prevent changes in electoral law in states with histories of racial discrimination, reversed much of the state’s progress. Specifically, a member of the legislature called for an election bill to change much of the state’s voting policies, while the legislature itself called for population and race data from across the state.
Among the electoral changes passed, the most pronounced and controversial was changing the types of identification required to vote. The law eliminated all forms of ID that African Americans tend to have and only retained forms of ID that African Americans tend to lack. Take one example: because there are large concentrations of African Americans in urban centers where public transit supplants driving, substantially fewer African Americans have driver’s licenses, a form of ID that still qualifies.
The election law also curbed certain methods of voting access, like same-day registration and early voting, which are used more often by African Americans.
North Carolina, with a growing minority population, has become a swing state in the last few election cycles. But in the 2014 midterm election, after the Supreme Court intervened to keep the election laws in place, the state swung right, indicating the law had been a success for the mostly white Republican party that enacted it.
The state, which defended the policy, can appeal the decision to the entire Court of Appeals for a rehearing or directly to the Supreme Court.
Just last week, on July 20, the full Fifth Circuit Court of Appeals reached a similar — but not the same — conclusion after examining a similar Texan law, allegedly the “strictest in the nation,” which mandated showing photo identification at the polls in order to vote. The law, argued the majority opinion, violated the Voting Rights Act and the 14th and 15th Amendments by adversely impacting minorities’ ability to vote. Specifically, the law would prevent over 600,000 individuals from voting, a large portion of which being minorities.
But unlike the North Carolina case, in Veasey v. Abbott, the lower court ruled against the law and found it was drafted with an intent to discriminate along racial lines.
The appeals court disagreed with that reading — in other words, they did not find the lawmakers intended to discriminate based on race — but did agree that the law disproportionately prevented minorities from voting.
The appeals court sent the case back down to the trial court, directing them to strengthen their case that the lawmakers intended to discriminate on race after concluding that the evidence used previously was “infirm.” Specifically, the lower court had used the state’s long history of discrimination to prove they had discriminated in drafting the law a few years ago. But, for the appeals court, that wasn’t sufficient to discern present-day motivations.
The appeals court also directed the lower court to find a quick remedy to the problem in advance of the 2016 election. While the majority of Texans have the relevant forms of identification, a significant number lack them, and the lower court has been charged with finding an acceptable alternative.
The decision came with a mess of concurring and dissenting votes, including a dissenting opinion written with a flair for the dramatic, likening the majority to Area 51 enthusiasts who accuse the state of vast conspiratorial plots without a lick of evidence. And while such rhetorical flourish can often attract the attention of the Supreme Court to review — in fact that may often be the sole intent — a weakened Court, down one justice after the death of the late Justice Scalia last February, is unlikely to intervene and immediately decide before the November election.
While the overall swing of Texas in the presidential election is not likely to be affected — it is still a reliably red state — many urban areas are now dominated by Democratic voters, including Dallas-Ft. Worth, San Antonio and the state’s capital, Austin.
The Fifth Circuit decision is surprising because it’s the nation’s most conservative federal appeals court and the decision would empower substantially more Democratic, rather than Republican, voters.
A U.S. District Court based in Madison, WI, struck down on Friday portions of the state’s voter ID law signed by Republican Governor and one-time presidential hopeful Scott Walker. The Republican Attorney General of the state has said he intends to appeal the decision to the Seventh Circuit Court of Appeals in Chicago, which has recently split evenly on Wisconsin’s election laws.
The ruling came only one week after a judge in Milwaukee, the state’s largest city, loosened the requirements on showing photo identification to vote: If a voter failed to bring such ID, they could submit a statement testifying they could not obtain relevant ID.
Friday’s ruling goes further than the Milwaukee decision. Provisions of the law that have been struck down include limits on ID that can be used; limits on early voting, including the time frame and the amount of locations; requirements that dictated how long someone must have lived in a precinct in order to vote; and methods to provide voters with absentee ballots.
James Peterson, the author of the decision, argued that the laws discriminated on the basis of race, but his rationale was less concrete than the decisions in Texas and especially North Carolina.
Wisconsin, a swing state with a strong history of white labor politics, is especially crucial in the 2016 election. Like Pennsylvania, elections often hinge on the balance between more diverse urban centers, like Philadelphia and Milwaukee, and white disaffected voters in rural areas. Donald Trump was defeated soundly by Ted Cruz in the Republican primary in the state, in large part due to the strongly anti-Trump Charlie Sykes, a highly influential conservative radio host in the state. But Sykes has been equally critical of Hillary Clinton, so the state’s electoral future remains in the balance. Easing the access of the polls to urban populations on Election Day could be crucial for a Clinton win in November.