Ever since the Supreme Court gutted a key section of the 1965 Voting Rights Act, Attorney General Eric Holder’s Justice Department has been trying to patch it, using the sections of the law that the court left in place to reconstitute the checks on discrimination that had existed for decades.
Before the decision, the law obliged certain parts of the country with a history of racial discrimination to clear changes to electoral rules with the Justice Department or federal judges. The high court did not strike down the concept of pre-clearance, but it did throw out the formula that determined which places had to submit to the rule.
Immediately after the court’s decision, states such as North Carolina approved indefensible voting policies that will make it harder for many people to cast ballots, with disproportionate effects on minority voters. North Carolina lawmakers cut the number of days voters would have to cast early ballots, eliminating a full week from the early-voting schedule. They also banned voters who show up to the wrong polling place from casting provisional ballots. They added a requirement that would-be voters present one of a few forms of identification, without much recourse for people who lack the documents. All of these, the Justice Department argues in a complaint it filed last week, disproportionately impact African Americans in North Carolina.
To fully prevail, though, Obama administration lawyers don’t simply need to show that North Carolina’s law has the effect of disproportionately limiting African-Americans’ access to the ballot box; they also must demonstrate that state lawmakers intended to discriminate against black North Carolinians. Proving intent is difficult.
The easier and fairer way to revive pre-clearance would be for Congress to rewrite the formula for which places should be covered.
The Washington Post (Oct. 7)