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Everything That’s Happened Since Supreme Court Ruled on Voting Rights Act

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Click a State

This map tracks state voting laws before and after Shelby County v. Holder on four key issues: photo ID, early voting, same-day registration and voter roll purging. For more details on methodology, see full methodology below

More restrictive voting policies →

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Last year, we wrote extensively about photo ID laws and the Supreme Court’s decision to strike a key section of the Voting Rights Act of 1965. Now, with gubernatorial elections in New Jersey and Virginia, and the debt ceiling and healthcare debates already shaping the 2014 midterms, we’re revisiting voting policies to see which states have enacted tougher restrictions since the Supreme Court ruling in June.

Remind me – what is Section 5 of the Voting Rights Act?

Under the Voting Rights Act, states and localities with a history of racial discrimination needed to get permission from the federal government to enact any changes to their voting laws, in a process called “preclearance.” As of June 2013, nine states, mostly in the South – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – needed to get any new voting laws pre-approved. Some counties and townships in California, Florida, New York, North Carolina, South Dakota and Michigan were also subject to preclearance.

Section 5 first applied to states that imposed literacy tests or other unfair devices, and had low voter registration or turnout. Congress later expanded the law to add jurisdictions with sizable minority populations and English-only election materials.

States and localities could “bailout,” or get off the preclearance list, after 10 years of elections without any problems. Several smaller jurisdictions bailed out over the years, including parts of Connecticut, Idaho, Maine, Massachusetts, Wyoming, Hawaii, and Colorado.

Of course, some of the biggest voting law battles of the 2012 election were in states not covered by Section 5 at all, such as Pennsylvania and Ohio.

What did the Supreme Court strike down in Shelby County v. Holder?

The Supreme Court decided, 5-4, that the preclearance formula was unconstitutional under the 10th  Amendment, which gives states the power to regulate elections. The Court ruled that the coverage formula was “based on 40-year-old facts having no logical relation to the present day.”

From the decision:

 

 

One important technical point: the Supreme Court actually left Section 5 of the Voting Rights Act – the part of the law that describes how preclearance works – intact. Instead, the Court struck down Section 4, which explains which states and localities are subject to preclearance. If Congress amends Section 4, the Justice Department can start enforcing Section 5 again.

Why does this matter?

While literacy tests are a thing of the past, voting rights advocates say that statutes that limit early voting and registration, require voters to show photo ID, and purge voter rolls still disproportionately affect poor and minority voters.

The Supreme Court’s June 2013 decision also effectively shifted the burden from states to citizens. Before, a state subject to preclearance had to demonstrate that a new voting law was not discriminatory and let voting law experts in the Justice Department evaluate it before it could be implemented. Now it is up to voters to challenge voting laws by filing lawsuits under Section 2 of the Voting Rights Act, which prohibits racial discrimination.

But most court cases involving Section 2 have been limited to redistricting, not other controversial voting measures, says Yale University law professor Heather Gerken.

“With redistricting, there’s always one very wealthy political party or another who can hire some very good lawyers and go into court and challenge it,” Gerken said. “But a lot of the types of things that were challenged under Section 5 were smaller questions, like, ‘Can you change a polling place? Can you shut down early voting hours in ways that might affect the black community?’ There are things smaller than redistricting that can fall through the cracks.”

What have preclearance states done since the Supreme Court ruling?

a NORTH CAROLINA: Two months after the Supreme Court decision, North Carolina passed a number of measures, including strict new photo ID requirements. The law also eliminates same-day voter registration, shortens the early voting period by seven days, and specifies that ballots cast at the wrong polling station will be thrown out. Some changes will be phased in starting in 2014, and the photo ID provision goes into effect in 2016.

The North Carolina NAACP and a civil rights group called the Advancement Project have filed a lawsuit challenging the changes. The Justice Department also filed a suit of its own. But the suits venture into some new legal territory.

“What North Carolina did was definitely at the extreme of practices in this country,” Gerken said. “So if anything is vulnerable to a suit, it’s likely to be the North Carolina law. But again, the case law was built around redistricting cases. It wasn’t built around this kind of work.”

q TEXAS: Last year, a federal court rejected Texas’ voter ID law, calling it “the most stringent in the country.” The panel also rejected the state’s redistricting maps, finding that they protected white incumbents while altering districts with minority incumbents.

But on the very day of the Supreme Court ruling, Texas Attorney General Greg Abbott said the state would “immediately” enact both measures.

The photo ID law requires voters to present an approved form of photo identification, where before they could present mail, utility bills or other proof of voter registration. The Justice Department had refused to approve the law based on the state’s findings that Hispanic registered voters were far less likely to have the approved photo IDs. The new law also requires the photo ID presented on voting day to match the state’s voter rolls — complicating voting for some married women and others with name changes.

The Justice Department has filed a lawsuit against the newly enacted photo ID requirements and joined an ongoing lawsuit against the disputed redistricting maps.

I FLORIDA: After the Supreme Court ruling, Florida resumed its plans to remove non-citizens from its voter rolls using the federal SAVE (Systematic Alien Verification for Entitlements) database. The Department of Homeland Security database helps government agencies check the immigration statuses of people applying for government benefits like drivers’ licenses, housing assistance, or Medicaid.

But opponents of Florida’s measure say that SAVE data is faulty and not meant for elections, and that using the database to verify voter rolls will disenfranchise eligible voters. (Colorado legislators rejected a bill to purge rolls based on SAVE data for this very reason, but that didn’t stop Secretary of State Scott Gessler from moving ahead with the plan.) The Miami Herald found that Florida voters flagged for verification were disproportionately Hispanic, and most turned out to be citizens. The Department of Justice has also said that SAVE is not meant to be “a comprehensive and definitive listing of U.S. citizens,” especially since it doesn’t include data about people born in the United States.

A nonprofit group has challenged the law, but a federal court dismissed the lawsuit after the Supreme Court ruled that Florida was no longer subject to preclearance. Another group has appealed a similar case to the 11th Circuit.

s VIRGINIA: Virginia passed a number of voting laws this spring that seem likely to go into effect in wake of the Supreme Court ruling.

The Virginia legislature passed a photo ID law last year (which the Justice Department approved), but the more recent measure goes further to limit what kinds of voter identification are acceptable. Voters can no longer show utility bills, bank statements, government checks or paychecks before they vote, but they can get an ID for freeif they don’t already have one.

The new laws also require the Virginia State Board of Elections to remove ineligible voters by comparing state voter rolls with the SAVE database and other states.The Democratic Party of Virginia has sued the state over the interstate crosschecks, contending that the database has erroneous information and the law will disenfranchise poor, elderly and minority voters, but a federal judge rejected the suit for lack of evidence. As of Oct. 17, the Board of Elections had already purged more than 38,000 voters.

n SOUTH CAROLINA: In October 2012, a federal court blocked the implementation of South Carolina’s photo ID law until 2013. The court found that although the law was not discriminatory, there was not enough time to implement changes before the 2012 election. South Carolina Attorney General Alan Wilson said the Supreme Court ruling now allows states to “implement reasonable election reforms, such as voter ID laws similar to South Carolina’s.”

Y MISSISSIPI: Secretary of State Delbert Hosemann said Mississippi will enact a strict photo ID law by 2014. The state says it will provide free transportation to government offices where voters will be able to obtain free photo IDs.

B ALABAMA: Secretary of State Beth Chapman said Alabama would also enact changes to its photo ID law by 2014. Like Virginia, Alabama used to accept other kinds of non-photo identification, such as utility bills and Social Security cards. But the new law requires voters to present photo IDs (the state will also provide free voter IDs to those who don’t have them). Legislators passed the measure in 2011, but Alabama stalled in submitting the law for preclearance.

D ARIZONA: The Supreme Court issued another significant ruling on voting laws this summer: In Arizona et al. v Intertribal Council of Arizona, Inc. et al., the Court ruled that Arizona, formerly a preclearance state, could not unilaterally require voters to show proof of citizenship before registering to vote in a federal election. But the Court said Arizona could sue the Election Assistance Commission to get the federal voter registration form amended to require proof of citizenship. Now, both Arizona and Kansas have sued the commission.

In case their legal challenges are unsuccessful, the states are setting up two-tiered systems of voter registration, requiring proof of citizenship for state and local races but not federal ones. So far, Kansas has suspended registration for about 17,500 voters until those they submit proof of citizenship.

o SOUTH DAKOTA: Four Directions Inc., a Native American voting rights group, has asked the Justice Department to investigate why Secretary of State Jason Grant has so far refused to use federal money to fund satellite voting centers for registration and early voting on some Native American reservations.

What about non-preclearance states?

The 35 states that were not subject to any kind of preclearance were unaffected by the Supreme Court decision. But several of those states have also moved to tighten voting rules this year.

C ARKANSAS: This spring, Republican legislators overrode the governor’s veto to pass a law requiring voters to show photo IDs. If voters don’t have them, they can cast provisional ballots and return with IDs by the Monday after the election. The state will also provide free IDs to people who do not already have them.

L IOWA: In late March, Iowa implemented an administrative rule allowing Secretary of State Matt Schultz to begin a voter roll purge using the SAVE database. Activists have sued Schultz in an attempt to stop the purge.

O INDIANA: In May, Indiana enacted a law requiring officials to check voter rolls for individuals registered to vote in other states. The advocacy group Project Vote worries that the measure could lead to voter purges.

Z MONTANA: After Democratic Gov. Steve Bullock vetoed a measure that would have eliminated same-day voter registration, the legislature decided to let the people decide. In 2014, Montana citizens will vote in a referendum on whether to keep same-day registration. Backers of the measure say it will cut down on lines at the polls.

c NEBRASKA: This spring, Nebraska shortened early voting by 10 days. Voters will still be able to vote in the 25 days leading up to an election.

b NORTH DAKOTA: North Dakota is the only state without voter registration. In April, the state strengthened its voter ID law to no longer allow people without photo ID to vote by affidavit.

p TENNESSEE: This spring, Tennessee passed a bill restricting the kinds of IDs that can be used to vote. Previously, voters could show student IDs, out-of-state IDs, library cards, or any other IDs issued by counties or municipalities. Now only photo IDs issued by the state of Tennessee or the federal government are acceptable. The Green Party of Tennessee has sued the state over the law.

So, where does all of this leave the Voting Rights Act?

The Supreme Court left it up to Congress to write new preclearance criteria. In a July hearing, House Republicans showed little interest in rewriting Section 4. But Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., says there’s actually quiet Republican support for the issue. Rep. Jim Sensenbrenner, R-Wis., made headlines when he publicly supported restoring the law.

“There is at least one Republican, and you’ll find out in the future a lot more, that is committing to putting life in this most important civil rights act that got a stab in the back from the Supreme Court,” Sensenbrenner said.

Gerken, the law professor, isn’t optimistic that Congress will come up with a new Section 4 formula. But she said there are other actions Congress could take. For example, she has advocated that Congress adopt an “opt-in” approach and allow civil rights groups to file simple complaints for the Justice Department to investigate. Then the agency could halt the implementation of discriminatory laws as necessary.

Yale law professor Travis Crum has also suggested a “bail-in” measure, by which Congress could instead strengthen Section 3 of the Voting Rights Act, letting courts put states under preclearance if their voting laws violate the 14th or 15th amendments.

As part of the Justice Department’s lawsuits against Texas and North Carolina, the federal agency has asked the courts to put those states back under preclearance.

This post will be kept up-to-date. Has your state or local government restricted voting rights since June 2013? Tweet at me, email me at kara.brandeisky@propublica.org or leave a comment below.

 

MAP METHODOLOGY: This map tracks state voting laws before and after Shelby County v. Holder on four key issues: photo ID, early voting, same-day registration and voter roll purging. States with the most restrictive voting measures involving these four issues are the darkest; each state earned one point per restrictive policy. So a state with restrictive policies in all four areas would have a score of four and appear the darkest. The “before” map reflects policies in place on June 24, 2013, the day before the Shelby County v. Holder ruling. The “after” map reflects policies in place as of Oct. 31, 2013, even if the changes are pending implementation. Details on scoring per issue follow.

Photo ID: States received a point if they will require photo ID in upcoming elections (even 2014 or 2016) as of Oct. 31, 2013. States that require ID but also accept non-photo IDs, such as paychecks or utility bills, didn’t receive a point. Likewise, states that have passed photo ID legislation but have been unable to enact the law because of a court order (such as Wisconsin and Pennsylvania), didn’t get a point.

Early voting: States received a point if they don’t allow in-person voting before Election Day, or require an excuse for absentee early voting. States that have shortened early voting didn’t get a point as long as they still allow some early voting.

Same-day registration: States received a point if they don’t allow registration on Election Day.

Voter roll purging: States received a point if they have asked for access to, or support using, the Systematic Alien Verification for Entitlements (SAVE)database to maintain state voter rolls. Not all states that have requested access have actively begun purging voter rolls.  

Alice Frazier

Nov. 1, 2013, 1:54 p.m.

Shadows of the Confederacy?

The problem, of course, is the possibility of someone voting who shouldn’t.  There’s no possible objection to preventing legitimate voters from voting.  There’s no possible objection to opaque, privatized counting of votes.  There’s no possible objection to candidates being pre-selected by big corporations (the parties) and funded by secretive sponsors who could well be ineligible to vote.

As long as we prevent the Russkies/terrorists/Mexicans from taking over the country by sneaking into voting booths, we will be set!  Because that’s totally how we’ll lose control of the country.  It’ll have nothing to do with companies getting tax breaks for exporting their profits overseas, ubiquitous military surveillance in violation of the Constitution, or a government that doesn’t understand its own laws or care to understand much of anything.

It’s like they’re trying to provoke a revolution…

The data map is well done. However, why is the contention of voting rights “advocates” that these rules are somehow discriminatory never challenged or questioned?  It’s 2013. All of us submit daily to presenting photo identification to get on airplanes, drive our cars, use our credit cards, buy booze, etc. As big boys and girls, we are even capable of planning things in advance. Black and white, young and old, male and female, gay and straight. The whole rainbow is somehow miraculously able to get their vehicle inspections, dental and hair appointments folded in to a busy life.

So why write a sentence like this one? “While literacy tests are a thing of the past, voting rights advocates say that statutes that limit early voting and registration, require voters to show photo ID, and purge voter rolls still disproportionately affect poor and minority voters.”

It’s condescending, old-fashioned and presumptuous. One could even call it worse, but I won’t go there.

Would suggest that future pieces include what “type” of photo id is acceptable to the states that require them, and what is required to get one.  Many of these states with the restrictions listed are also changing the type of acceptable id and the documentation required to get that id.

Anyone who thinks that everyone has an id on hand without it being any hardship, is completely ignoring the facts about how many registered voters in this country do not have a photo id. 

In person voter fraud is a boogie man myth to hide election rigging, period.  Facts matter, reality matters and the right to vote should never be lost to imagined fears drummed up by those who wish to control election outcomes.

Larry Kestenbaum

Nov. 2, 2013, 1:49 a.m.

Michigan’s very dark color on this map at least partly reflects a misunderstanding of our (fortunately watered down) voter ID law, which doesn’t actually require anyone to have an ID to vote.

In lieu of showing a photo ID, a voter can sign a pre-printed statement that he or she don’t have one, and proceed to vote without any further question.

Second, our lack of early voting, election-day voter registration, and the requirement of a “reason” on an application for an absentee ballot, show our lack of forward progress, not regression.

Michigan’s unusually decentralized election system, in which each individual city and township operates its own polling places, has been slow to adapt to newer developments.  Other states have county-based early voting; that is politically impossible here.  Every proposed innovation has to take account of how it would work in hundreds of small townships with only a few dozen voters each.

As a practical matter, any Michigan voter can easily obtain an absentee ballot, if they check a box to the effect that they “plan” to be out of the jurisdiction on Election Day.  It doesn’t matter, at all, if those plans change later, even the very moment the voter’s pen rises from the form.

In the 2012 election, unprecedented large numbers of Michigan voters, perhaps seeing early voting happening elsewhere, went to their local clerks’ offices and voted early (that is, absentee, but in person).  In this area, so many voters cast ballots early that, on Election Day, most precincts had a pretty quiet afternoon.

Along with many other county and local clerks, I have advocated in favor of early voting, no-reason absentee voting, election day registration (EDR), and against requiring photo ID.

But given our current set-up, only EDR would represent any fundamental change in what Michigan voters can already do.

Larry Kestenbaum
Washtenaw County Clerk
(Chief election official for the greater Ann Arbor/Ypsilanti area.)

Mexico requires an ID to vote so does Canada and several European countries.

I explained to a French friend of mine that Dems are against people showing an ID to vote and being no right winger he thought I was joking, To him and most reasonable people around the world it only makes sense.

So apparently most of the world is racist since that is the only reason why one would require an ID to vote.

I also enjoy that ProPublica has just become an arm of the Democratic Party. This might as well be the talking points of the Dem Party. Heaven forfend that ProPublica tell the whole truth. The fact is the minority voter participation in southern states is on par with or ahead of white voter participation even with voter ID laws. What state has the worst minority voter participation, Massachusetts. If this is such a important issue for ProPublica why aren’t they leading the charge for the DOJ to address the problem in Massachusetts? Might as well change your name to ProHypocrisy.

@Joe D:

Millions of adult US citizens never board airliners, drive cars, use credit cards, or buy booze (at least, in states where photo ID is required to do so).  And most of these are poor.  Urban poor are more likely to have never driven automobiles.

One group of people who don’t do things needing photo IDs—and for whom getting an ID can be a very hard burden—are elderly folks, especially those who are not able to live independently.  Even if they had official IDs earlier in life, these may have expired years ago.

In Texas, an elderly person of limited mobility might be required to assemble other ID documents which are difficult for her to gather, and make the trip to appear in person at the nearest DPS office, perhaps dozens of miles away.

@Mark H

I do understand that there are elderly people who no longer drive, poor people who do not fly, etc. But, as has been noted here and elsewhere, other countries have found ways around this, and there do seem to be solutions available. States such as Virginia where I live offered free of charge voter identification cards as part of the legislation that “restricted” in-person voting.

My questions are meant to learn whether such options are effective in equipping willing voters with the photo ID necessary for them to vote in person. If they can get to the polls, surely it’s not too much to ask that they make it to the local DMV, town hall or other government office to get their identity cards?

Too often in these stories, the pathos of lonely, elderly or poor people is used as a show-stopper to kill the idea of requiring photo identification. But before glumly agreeing to that, where is the census data on the real scope of the problem (not surveys by groups such as ACLU with a vested interest) that we need? I’ve discovered single-state research that is sample-based, questionnaires that are issued by advocacy groups and a general lack of rigor in coming to the real numbers. This is true whether you’re looking at states subject to the Voting Rights Act or not.

Larry Kestenbaum

Nov. 4, 2013, 12:34 p.m.

I see a number of people asking, about photo ID laws, “why not?”

The larger question is WHY?  Requiring photo ID for voting is a solution in search of a problem.

How many people attempt to vote in person by pretending to be someone else?  All available evidence points to that number being zero, or extremely close to zero.

To require voters to show photo ID (and election workers to examine and validate it) is not cost-free.  It means that the voting process takes incrementally more time, that waiting lines are incrementally longer, that voting precincts will require incrementally more workers to function efficiently.

Your signature (backed by perjury penalties) is generally considered sufficient for things like contracts and credit cards.  It has always been sufficient for voting—until now.

Speaking as an election official, requiring photo ID for voters is an unnecessary rigamarole—a politically inspired waste of resources.

Larry Kestenbaum
Washtenaw County Clerk
(Chief election official for the greater Ann Arbor/Ypsilanti area.)

Legislatures, governors, or any politicians need someone to watch over them, they need to be regulated. Their not to be trusted as their number one concern is themselves. They will do anything to get re-elected. When I look at how Philadelphia’s districts are made up I just laugh. They will block any voter that gets in the way. As the article reported the Cogress has little in making up to date laws to fix Section 5. What we really is a new Boston tea party because we are paying taxes without representation.

Brian H
As a Canadian I can assure you we do not require photo ID. In fact we allow same day registration with a utility bill. In fact all of our elections our monitored by an independent federal agency Elections Canada I have worked on political campaigns and in poll locations. In a single riding there would be poll locations in every neighbourhood. In the riding I worked in there were close to 200 polls.You never experience lines waiting to vote. All the ballots are therefore counted by hand with a representative from each campaign office and representatives of elections Canada. There are very few recounts and a lot fewer voters disenfranchised. As an avid observer of American politics I have been shocked at the lengths to which the GOP has gone over the last ten years to delay the tide of democratic changes that will eventually will come as the younger generation take the reigns of power. Its deliberate and its anti- democratic.

Jane, I love Canadian elections lwhere campaigns last one month as opposed to a two-year process. The US elections can never be simple it feeds the news media and there is too much money involved.

Stan, you are so right about that. Campaigning is by law only allowed to go on for 40 days. We also have much stricter laws on campaign financing so corporate interests are much more restricted.One problem we have is being a country with 5 parties it splits the progressive vote and a minority of the public who are right leaning ( 30 percent right now and dropping) can end up in charge. Are own right wing prime minister is a control freak and the majority of Canadians (70%) can’t wait to get him out of office.

While other countries require an ID to vote, many also make it a civic requirement at the federal level, and finable violation, to vote (you can go and vote for ‘None’). Instead, we leave voter registration to the States and are surprised when historical prejudices creep in and suppress voter registration. While the Voting Rights Act did a great job of legislating both African American voter registration as well as representation, the same undercurrents exist in the South to this day. One only needs to look at voter polarization in the South between candidates, even when controlling for party identification.

If we were serious about this issue, every US citizen who is eligible would be enrolled and required to vote. Australia uses this model and has 95% + turnout.