Tomorrow, and the early voting leading up to it, mark the first presidential election since the Supreme Court clipped the protective wings of the Voting Rights Act. In 2013, speaking for a conservative majority of five, Chief Justice John Roberts effectively eliminated the safeguards created by a provision of the law called Section 5, saying that Congress could no longer require states and counties with a history of racial discrimination to get the approval of the Department of Justice before changing local voting rules and practices. Roberts said things had “changed dramatically” since the 1960s, and these jurisdictions, which are mostly in the South, didn’t need oversight from the D.O.J. anymore. They could be trusted to treat minority voters fairly on their own. As evidence of change, Roberts pointed to the end of the literacy test and other methods of barring voter registration, which included the poll tax. But his conservative majority didn’t account for the hassle tax — the new price that minority voters disproportionately pay. In North Carolina over the weekend, people stood in line for hours in counties with large black and student populations. In a study of 381 counties covered by Section 5, about half the total number, the Leadership Conference Education Fund found 868 fewer places to vote than existed in 2012.
There are legitimate reasons to close a polling place, like saving money, while increasing access to voting by mail and early voting. But before the Supreme Court’s 2013 ruling, the D.O.J. had the power to ensure that state and local voting boards did not use “budget cuts or voter modernization as cover to disenfranchise people of color,” the L.C.E.F. study points out. “In a world without Section 5, that process — that protection for minority voters — has ceased.”
And so voters of color are once again fighting for access to the most basic right of citizenship. When the Supreme Court heard arguments in the 2013 case, Shelby County v. Holder, experts predicted that the biggest impact of striking down Section 5 would be the cumulative effect of all the small stuff — “under the radar” local tinkering to district lines and polling locations and hours, as Heather Gerken, a Yale Law School professor, put it. When Section 5 was enforced, state and county officials chafed at submitting every alteration for federal approval. But the alternative is to resort to after-the-fact remedies. People are turned away from the polls, or purged from the rolls, or refused ID, and then these violations of their rights can be challenged.
Left to their own devices by the Supreme Court, some states and counties appear to be testing how far they can go with voter suppression. North Carolina is a case in point. Following the court’s decision in Shelby County, the Republican-led Legislature passed a law stuffed with voting restrictions, including voter ID requirements and reductions in early voting. Last summer, the United States Court of Appeals for the Fourth Circuit struck down most of the law, finding that it targeted Democratic African-American voters “with almost surgical precision.” Justifying a plan to end Sunday voting, the state said that counties allowing it in 2014 were “disproportionately black” and “disproportionately Democratic.” The appeals court judges correctly called this “as close to a smoking gun as we are likely to see in modern times.” The Republicans running the state wanted to change a voting practice out of concern that “African-Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.”