Without the Voting Rights Act, Will the South Welcome Back Jim Crow?


Last month, the Supreme Court struck down Section 4 of the historic Voting Rights Act, which required that certain states with a history of racial discrimination get approval from the Justice Department prior to making any changes to their voting laws. Critics of the decision have decried it as a move towards disenfranchising minority voters, while supporters seem to fall into two categories: those who argue that racism is by and large a thing of the past in America, and the VRA itself unjustly discriminates against states with a history of discrimination; and those who argue that we need to update how we decide what states merit greater scrutiny from the federal government.

States previously covered by the VRA are wasting no time in changing their voting laws. Texas moved first, with an announcement that a voter ID law that the state legislature had previously passed but was then blocked by the federal government would take effect immediately.

The Justice Department had previously stated that Texas had not proved that the voter ID law would do more to prevent voter fraud than existing laws, and furthermore that the law would disproportionately impact Hispanic voters. The state did not provide data on how the law would affect minorities such as African American or Asian voters. The VRA decision may also lead to redistricting in Texas along lines that critics have called discriminatory.

Texas is not alone. North Carolina has also several potential new voting laws, including redistricting that packs black voters into one district. Activists say it is a calculated move to prevent African American voters from having a larger impact on state policies.

Then of course there is that state's own voter ID law in the works. Republican lawmakers are planning to end early voting, Sunday voting, and same-day voter registration, all of which have been very popular with black voters.

Alaska, which was required under the VRA to get preclearance for voting law changes due to past discrimination against Native Americans, has also jumped on the bandwagon with a proposed voter ID law, and Virginia, Mississippi, and Alabama are all moving quickly to do the same. 

If the link between voter ID laws and attempts to discriminate against minority voters is not immediately apparent, consider that 21 million Americans don’t have photo identification. That number includes a quarter of all African Americans and 16% of Hispanics.

Compared to that, a five-year effort to find and crack down on voter fraud across the country from 2002-2007 found a total of 120 cases of voter fraud at the polling place, the only kind that would be prevented by voter ID laws. In some cases, the fraud was the result of a mistake, such as a released felon who did not know that their conviction rendered them ineligible to vote.

But I can agree that there is some merit to arguments posed by the second group of VRA critics, who say not that we don’t need the kind of voter protections embodied in the VRA, but rather that we need to update how we decide where to focus greater scrutiny. After all, Pennsylvania and Wisconsin have also passed voter ID laws, although they are currently being blocked from implementation by the courts.

My problem with that argument in defense of the Court’s decision, however, is that it is content to leave people without greater voting protections indefinitely. The Court has shifted the burden of ensuring one of the most fundamental rights of our country to a Congress that has been exceptionally gridlocked.  

Although its structure may have been flawed, the VRA was doing what it was supposed to do in the states it covered. The very arguments against it in the majority opinion showed that it had made a tremendous difference to minority voters. Arguing that the VRA hasn’t stopped all voting discrimination everywhere is letting the perfect be the enemy of the good.