A recent ruling by a federal judge in North Carolina offers a perfect case study of just what was lost when the Supreme Court badly weakened the Voting Rights Act last year in Shelby County v. Holder. Judge Thomas Schroeder on Friday rejected an effort by civil rights groups and the U.S. Justice Department to put North Carolina’s voting law on hold in advance of a full trial next year. The decision means the law—called the strictest voting measure in the country—will be in effect this November, when North Carolina will host a tight Senate race that could determine control of the chamber. Politics aside, the ruling’s logic appears to validate the concerns of voting rights advocates that, post-Shelby, the Voting Rights Act is no longer strong enough to protect minorities’ access to the polls—especially in the face of a concerted Republican effort to make voting harder. Meanwhile, a bipartisan congressional effort to pass legislation re-invigorating the landmark civil rights law is stalled in the Republican-controlled House. “This really is a result of the Supreme Court’s weakening of the Voting Rights Act a year ago,” Daniel Donovan, a lawyer for the groups challenging the law, told reporters Monday.
North Carolina moved ahead with its law only after the Shelby ruling last June, which ended the system under which most southern states had to have their voting laws cleared by the federal government before they went into effect—a part of the VRA known as Section 5.
Section 5 used what lawyers call a “non-retrogression” standard. That means that if a voting change might hurt minorities, it could be blocked. In other words, courts were supposed to compare minorities’ ability to participate before and after the law. Since North Carolina’s law ends same-day voter registration, cuts early voting, disqualifies ballots cast in the wrong precinct, and, come 2016, will require voters to show a photo ID—all moves that, the evidence suggests, will disproportionately affect blacks and Hispanics—it likely would not have survived Section 5.
Without Section 5, voting rights lawyers have had to rely on Section 2 of the VRA, which works very differently. It’s not just that Section 2 requires victims of racial discrimination in voting to sue after the law has gone into effect, and puts the burden of proof on them. It’s also that Section 5’s non-retrogression standard doesn’t apply. Instead, plaintiffs have to show, essentially, that under the law, minorities now have less ability to participate than do whites, and that that’s the result of racial discrimination, either past or present.