A voter holds their voting permit and ID card at the Washington Mill Elementary School near Mount Vernon, Va., in 2012.
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ATLANTA — Across the South, Republicans are working to take advantage of a new political landscape after a divided U.S. Supreme Court freed all or part of 15 states, many of them in the old Confederacy, from having to ask Washington’s permission before changing election procedures in jurisdictions with histories of discrimination.
After the high court announced its momentous ruling Tuesday, officials in Texas and Mississippi pledged to immediately implement laws requiring voters to show photo identification before getting a ballot. North Carolina Republicans promised they would quickly try to adopt a similar law. Florida now appears free to set its early voting hours however Gov. Rick Scott and the GOP Legislature please. And Georgia’s most populous county likely will use county commission districts that Republican state legislators drew over the objections of local Democrats.
Chief Justice John Roberts wrote the 5-4 opinion that struck down as outdated a key provision of the landmark 1965 law credited with ensuring ballot access to millions of black Americans, American Indians and other minorities. Roberts’ opinion gives Congress an opportunity to retool the law’s so-called preclearance sections that give the U.S. Justice Department veto power over local elections. But the prospects of a quick fix seem uncertain, at best, given stark ideological divides on Capitol Hill on a host of matters.
Southern Republicans largely hailed Roberts’ opinion as recognition of racial progress since President Lyndon Johnson signed the law at the apex of the civil rights movement.
“Over the last half-century, Georgia has reformed, and our state is a proud symbol of progress,” Gov. Nathan Deal said. “Today’s decision guarantees that Georgia will be treated like every other state — a right we have earned.” In neighboring Alabama, where the case originated, Gov. Robert Bentley said, “We have long lived up to what happened” in the Jim Crow era, “and we have made sure it’s not going to happen again.”
Democrats and civil rights attorneys lambasted the ruling as a setback for the very advancement Republicans highlighted, and the dissenters predicted a proliferation of laws designed to curtail minority participation in elections.
Rep. John Lewis, an Atlanta Democrat and civil rights activist who was beaten as he advocated for voting rights in the 1960s, called the ruling a “dagger.”
President Barack Obama said he was “deeply disappointed” in the court overturning “well-established practices that help make sure voting is fair.”
At Obama’s Justice Department, officials opted for caution. They said the agency, which enforces federal voting laws, has in hand 276 submissions from state and local governments seeking preclearance. The department will issue guidance on those pending laws and procedures in the next few days, they said.
For five decades, the law required that certain states and localities with a history of discrimination submit all of their election laws — from new congressional district maps to the precinct locations and voting hours — to Justice Department lawyers for approval. Congress reauthorized the law multiple times, the latest in 2006 with overwhelming bipartisanship capped by a 98-0 Senate vote.
Election officials in Alabama’s Shelby County, a suburban enclave nestled between civil rights hot spots Birmingham and Selma, brought suit asking the courts to invalidate Sections 4 and 5, which set preclearance parameters.
The Roberts majority, which included conservatives Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas, sidestepped whether the advance approval requirement is constitutional, ostensibly leaving Section 5 on the books. But the justices, all appointed by Republican presidents, threw out the Section 4 formula that determined what jurisdictions must have the advance federal oversight. Roberts reasoned that the original formula — extended through reauthorizations — is obsolete because Congress based it on 1960s voter registration and turnout data. The chief justice emphasized, however, that Congress can rewrite the formula to reflect “current conditions,” though he didn’t offer recommendations or acknowledge the inherent political challenges involved.
Justice Ruth Bader Ginsburg dissented on behalf of the court’s liberal bloc, all of them Democratic appointees. Ginsburg argued that continued discrimination, which Roberts himself noted in the majority opinion, demands continued federal oversight.
Critics of the majority also chided court conservatives for striking down congressional action, given that the 14th and 15th amendments authorize Congress to enact laws enforcing the amendments’ protections against discrimination.
Before the ruling, the formula required reviews for all of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia; and parts of California, Florida, Michigan, New York, North Carolina and South Dakota.
Justice Department attorneys have used Section 5 in multiple cases to block voter identification laws, saying they discriminate against minority and poor voters who are less likely to have the required government-issued documents. Over the law’s existence, many Southern states have ended up watching courts drawing legislative and congressional district lines after federal authorities used Section 5 to invalidate what state lawmakers did.
South Carolina has successfully implemented a voter identification law, but only after revising its preferred policy after Gov. Nikki Haley and other Republicans negotiated with the Obama administration. Under the court’s ruling, no negotiations would’ve been necessary.
Within hours of Tuesday’s decision, Texas Attorney General Greg Abbott declared on Twitter, “(U.S. Attorney General) Eric Holder can no longer deny VoterID in Texas.” The Texas Department of Public Safety announced later in the day that on Thursday it would begin distributing photo IDs under a 2011 law that Holder’s lawyers had blocked under Section 5.
In Mississippi, the secretary of state said her office would begin enforcing a pending voter ID law for primaries in June 2014. North Carolina Republicans said they plan swift action on a pending voter ID bill.
Laughlin McDonald, who heads the American Civil Liberties Union’s voting rights office, said he agrees that pending submissions to the Justice Department are now moot. It’s less clear what happens to scores of laws that the feds have already denied since the 2006 reauthorization. McDonald said he believes a state or other covered jurisdiction would have a strong case to argue that it could implement any affected law it has passed since the reauthorization.
That could be an issue in some disputes over at-large voting districts. The Justice Department denied some proposals where the population of an entire county or city would elect all representatives of a governing body, potentially diluting the influence of a minority that would otherwise be able to influence outcomes within single districts.
The case does not affect the act’s Section 2 prohibition against voter discrimination based on race, color or other minority status. Still, the burden shifts to a citizen who must prove discrimination, whereas the preclearance process required state and local governments to prove in advance that a policy wouldn’t harm minority voters. Also untouched is Section 3, which allows the government to require preclearance based on more recent discrimination. The Justice Department has used that provision to extend oversight in Arkansas and New Mexico.
Georgia Secretary of State Brian Kemp, a Republican who supports the court’s finding, said Section 2 gives citizens a legal recourse, while Section 3 gives the government a tool to police wayward local officials. He noted that Holder used Section 2 to go after Pennsylvania’s voter ID law in a state not covered by preclearance.
“Look,” he said, “this is already happening in other states and nobody is screaming and hollering about it.”
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