By RTV Guest Blogger Dale Ho, ACLU Voting Rights Project (see bio below)
In a continuation of trends from previous elections, voters under the age of 30 turned out in record numbers in last year’s election, leading many analysts to suggest that they played a decisive role in the presidential race. But many of those young voters might not have been able to participate at all if the Supreme Court’s recent ruling striking down a crucial part of the federal Voting Rights Act (“VRA”) had been in effect last year.
The Supreme Court in the Shelby County case, however, eliminated that crucial protection. The Court declared that the part of the VRA that determines which states are subject to the preclearance requirement is out-of-date, and therefore unconstitutional, striking down the law. First, some background. Earlier this week, the Supreme Court’s decision in Shelby County v. Holder struck down a key provision of the VRA. The provision of the VRA in question related to what’s known as federal “preclearance” of voting laws: the VRA required certain states and counties that have a history of voting discrimination – places like Alabama, Mississippi, Texas, and Florida – to get approval or preclearance from the federal government before making any changes to their voting laws. Over the past three decades, this provision of the VRA blocked over 700 discriminatory voting laws from going into effect.
That decision could prove devastating for the voting rights of all citizens, particularly young voters. In last year’s presidential election alone, the VRA’s preclearance requirement enabled thousands of voters to cast a ballot free from discrimination or other interference. For example, in one case being litigated by the ACLU, Texas attempted to implement a law that would have, among other things, prohibited voters from using student ID cards to verify their identities at the polls (but would have permitted the use of concealed handgun licenses).
Thankfully, the VRA blocked that discriminatory law, and several others, in advance of the election. But had the Supreme Court’s decision in Shelby County been in effect, an estimated 600,000 registered voters in Texas – who do not own the type of ID that Texas demanded at the polls – could have been denied their right to vote. In addition to young voters, poor and elderly voters – who are less generally less likely to own a car (and thus, a driver’s license) – would also have been disproportionately affected.
So why did the Supreme Court strike down this essential provision of the VRA? The plaintiff in the case, Shelby County, Alabama, argued that it is unfair to require some states but not others to seek approval from the federal government before changing their voting laws. A majority of the Court agreed.
But that’s hardly a reason for scrapping a law that has and continues to do so much good. If anything, the last election showed that we need more, rather than fewer, protections for our right to vote. And, as Justice Sonia Sotomayor noted during the oral argument in Shelby County, the state of Alabama was found to have violated the Voting Rights Act over 100 times since 1982. The fact that other states like Ohio or Pennsylvania have also engaged in bad behavior hardly seems like a reason for giving Alabama a free pass.
Moreover, what was crucial about the VRA is that it blocked discriminatory voting laws before they went into effect. Outside of the voting context, most anti-discrimination laws operate after discrimination has already occurred – say, if your employer pays you less because you’re a woman or you’re gay, you often sue afterwards, and then, if you prove your case, you then get awarded backpay.
But that kind of process doesn’t work in the elections context – you can’t re-do a discriminatory election after the fact, which is why it is so crucial to prevent discriminatory voting laws before they are implemented. But now, after the Supreme Court’s decision, voters who suffer discrimination will generally only be able to sue after their voting rights have been infringed – and, even if they prove their case, we all will still have to live with the results of an unfair and unlawful election.
The Supreme Court ignored that fact. It also ignored its own precedent, as the Court had previously upheld the preclearance requirement as constitutional in four separate decisions spanning four decades. And, the Court ignored the fact that strong bipartisan majorities in Congress – voted in favor of Section 5 and its geographic scope in 2006. Young voters – like all Americans – have expressed profound disappointment about the inability of Democrats and Republicans to come together in Washington, but the near-unanimity about the continuing need for the VRA from both sides is remarkable. In determining what to do next, we hope Congress will approach this issue with the same bipartisan spirit that it did when it last reauthorized the VRA seven years ago.
Safeguarding the fundamental right to vote of all Americans – young and old alike – demands no less.
Mr. Dale Ho’s Biography: Dale Ho is the director of the ACLU’s Voting Rights Project, where he supervises the ACLU’s docket of voting rights litigation. His work includes litigation under the Voting Rights Act; combating barriers to voter registration and ballot access; and expanding access to the franchise. Dale has testified on election reforms in various state legislatures around the country, and is a frequent commentator on voting rights issues, appearing on television programs including Hardball with Chris Matthews, Up with Chris Hayes, and ViewPoint with Elliot Spitzer. He is an adjunct professor of law at Brooklyn Law School and New York Law School, and has published over half a dozen academic articles in law reviews including the Florida Law Review, the Richmond Law Review, the Harvard BlackLetter Law Journal, and the Stanford Law & Policy Review. Prior to joining the ACLU, he was Assistant Counsel at the NAACP Legal Defense Fund; an associate at Fried, Frank, Harris, Shriver & Jacobson LLP; and a judicial law clerk, first to Judge Barbara S. Jones, U.S. District Court for the Southern District of New York, and then to Judge Robert S. Smith, New York Court of Appeals. Dale is a graduate of Yale Law School and Princeton University.