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How has voting changed since Shelby County v. Holder?

Author: Jaime Fuller for the Washington Post

In June 2013, the Supreme Court struck down Section 4 of the Voting Rights Act.

Activists attend a Voting Rights Amendment Act rally on Capitol Hill on June 25, 2014. The rally marked the one-year anniversary of the Supreme Court decision in Shelby County v. Holder which held a section of the Voting Rights Act of 1965 is unconstitutional. (Photo by Win McNamee/Getty Images)

Here's a rundown of what you need to know about what's happened sinceShelby County.

What did Shelby County v. Holder do again?

The Supreme Court ruled 5-4 that Section 4 of the Voting Rights Act of 1965 was unconstitutional. Section 4 lays out the formulas for how the Justice Department enforces Section 5 of the Voting Rights Act. Section 5 requires that the states identified with a history of discrimination obtain approval from the federal government before they can make changes to their election law. Section 4 formulas as of 2013 mandated that "Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia in their entirety; and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota" ask for preclearance for electoral law changes. After Shelby County v. Holder, these states are free to make changes to election law or district maps without approval from the Justice Department.

Without Section 4, the Justice Department has fewer legal resources for challenging election law it finds discriminatory.

The Supreme Court found Section 4 unconstitutional because of the age of the coverage formulas. The Supreme Court's opinion notes: "voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements. As we put it a short time ago, 'the Act imposes current burdens and must be justified by current needs.'

In other words, the Supreme Court is telling Congress, "if you want to keep Section 5, you better make new rules."

Has Congress made any moves on amending the Voting Rights Act?

If Congress wants to keep it, they need to update the framework that decides which states require the Justice Department to sign off on election law changes. A year later, Congress hasn't decided whether they want to keep it yet. The proposed amendment to the Voting Rights Act is stuck in legislative purgatory.

What's happening in those states?

State legislatures have been far more active since Shelby County v. Holder. Some of the laws passed since the ruling were unquestionably beneficial to voters -- like online voter registration, which 20 states now have. Many of these election changes were prompted by suggestions made by the Presidential Commission on Election Administration, which released a comprehensive evaluation of America's electoral systems this January. The Brennan Center for Justice counts 16 states that have passed laws that improve access to the vote in the past two years.

Other laws have seen their support split on partisan lines. These new changes, mostly passed in conservative state legislatures, were designed to counter voter fraud or help shrink budgets. There have been changes that shift early voting and voter registration times, and new voter-ID requirements. The opponents of these laws say that their only effect will be limiting the right to vote -- mostly among low-income and minority voters who may not own government identification or have enough flexibility with their employment to vote on Election Day.

Since 2010, new voting legislation that curtails the options available for voters to cast ballots is in place in 22 states, according to the Brennan Center for Justice.

The 2014 midterms will be the first test for this legislation in 15 states, some of which have already given the laws a trial run during the primaries. But some of the new legislation may not survive until Election Day. In seven states -- Arizona, Arkansas, Kansas, North Carolina, Ohio, Texas and Wisconsin -- the new election legislation is currently facing legal action.

How are people responding to these laws?

For those who support the new laws, polling shows that much of the country thinks voter ID is a good idea -- although not much new polling has happened since the 2012 election. Seventy-four percent of respondents in a 2012 Washington Post poll said that voters should be required to show a government ID when casting a ballot. Voters were split on whether voter suppression or voter fraud was a bigger concern. A year later, however, voters still generally disapprove of the Supreme Court's decision to strike down part of the Voting Rights Act.

There hasn't been enough time -- or enough elections -- for voters to decide what they think of the election changes that have been passed since.

Voting rights advocates who oppose these new laws are fighting them in four different ways. Before November 5, 2014, we'll have a good idea of how well these efforts are working by the number of new voting provisions actually in effect.

First, advocates are marketing the issue. If you've heard of Moral Mondays, that means the North Carolina NAACP has been successful in this regard. Since April 2013, people have regularly gathered outside the statehouse in Raleigh to protest the state legislature's changes to voting, education, health care and other policy areas since 2010. Although many conservatives in North Carolina have dismissed the protests, calling the participants extremists, the national media has covered the events and the idea has spread. Other states with new voting legislation -- South Carolina, Florida and Georgia, for example -- have started their own Moral Monday-esque movements. Reverend Dr. William Barber, president of the North Carolina NAACP and face of Moral Mondays, says that he has received many requests from states all around the country for advice on how to borrow the tactics of his "faith-based moral movement." But in each state, the movement looks different.

"When we share our experiences with these states," he said in an interview in March, "we make it clear with them that they need to do their own thing. You can't cookie-cut the movement. But framing public policy in our deepest moral values has resonance beyond North Carolina."

"The North Carolina model took eight years to create," says Tim Franzen, who helped start Moral Mondays in Georgia. North Carolina's Forward Together moral movement began in 2006. "They were the trailblazers. We've been able to fast-track because of the work they did."

Second, there's Section 2 of the Voting Rights Act, which the Justice Department has begun to use to challenge some of the new voting laws. However, it is far harder to challenge a law with Section 2 -- whichprohibits discriminatory voting practices -- than it was with Section 5. With Section 5, legislation could not be enacted until the Justice Department approved it. Section 2 can only challenge already existing law, and undoing the status quo is far harder than preventing it from becoming so. And the burden of proof is on the plaintiff in Section 2 lawsuits, which means the suits are far more expensive.

Currently there are Section 2 lawsuits pending in North Carolina and Texas, another former Section 5 state that passed a voter-ID requirement. The Texas trial is scheduled to happen before this year's election, and North Carolina's voter-ID requirement -- which is scheduled to go into effect before the 2016 election -- will face a court test in 2015.

Third, there is the possibility of pausing the new election changes. Today, voting activists in North Carolina will take part in a preliminary hearing that will decide whether some of the provisions in the state's new voting law will be in effect this November. The group, which includes the Advancement Project and the NAACP, are asking the court to reinstate the 17 days of early voting that have been available since 2008, as well as same-day registration. Another lawsuit joining this one is on behalf of teenagers, who say their 26th Amendment rights -- which gave the right to vote to 18 year olds -- are being infringed by the new voting law. North Carolina used to provide paperwork to 17 year olds so they would be able to vote upon turning 18.

The state senate has asked the court to dismiss the lawsuit -- the legislators who supported this legislation across the country are defending its effectiveness and necessity. In many of the primaries where this legislation first saw action this year, there were seemingly few complaints, although the sample size happened to include the most active and reliable voters.

Lastly, the voting rights groups are focused on long-term ways of achieving their aims -- voting out the people they disagree with. If their efforts to challenge the election legislation prove ineffective, educating voters about the changes -- which are often confusing -- is also a priority. The NAACP and its partners have begun making voter registration a priority of their efforts. Forty organizers are currently registering new voters in 40 counties in North Carolina. Across the South, organizers are planning voter registration drives in conjunction with the 50th anniversary of Freedom Summer.

What about other states?

Former Section 5 states aren't the only places that have seen election changes since Shelby County. One of the bigger electoral changes happened in Ohio, which has seen many election battles over the years due to its importance in presidential elections. The state recently cut down on early voting, and eliminated "Golden Week," when voters could register and vote at the same time before Election Day. Election officials in the state, Republican and Democrat, were complaining to Secretary of State Jon Husted about areas of electoral policy they wanted to change, either for budgetary or voting rights reasons. Husted says his response was, "Fine then, we'll set one standard." As with most political compromises, this one left everyone less than happy, and a Section 2 lawsuit is now pending in federal district court.

"When you're a swing state," Husted says, "people are always going to complain."

What's going to happen after the 2014 midterms?

After November, the legislation that remains in effect will be unpacked thoroughly by its supporters and detractors. Those who worked to pass the legislation will hope to see a decrease in voter fraud. Those who oppose the laws will try to quantify how many people were barred from voting or had difficulties voting this year.

Both sides of the issues will have difficulties: substantial proof of widespread voter fraud has been hard to find -- and disproved by many election experts -- and the depressed turnout that always comes with midterms will make it harder to tally how the vote may have been altered by the electoral changes.

David Becker, director of election initiatives at Pew Charitable Trusts, cites the implementation of the Georgia voter-ID law in 2008 as an example of how hard it is to measure the effect of changes in electoral law. In 2008, African-American turnout in Georgia went up despite the voter-ID law, thanks in great part to Barack Obama's presidential campaign. The great improvements in election technology since 2000 have also made voting easier, so it's very easy for both sides of the voting rights campaign to find data to support their side.

"It's difficult to assess how any one change affects turnout," Becker says. "It's impossible to control for all the things that affect turnout."

Because of these challenges, this fight will definitely continue in 2016 -- regardless of how the many legal challenges turn out in the upcoming year. And politicians and political groups are going to continue to campaign on the issue as well. Outside of the activists working to change election law, there are partisans who see the electoral benefit of waging war on voter fraud or protecting voting rights.

"No party has a monopoly on this," says Dale Ho, the director of the ACLU's Voting Rights Project. "When parties are in power they try to use election administration to their advantage."

No party has a monopoly on capitalizing on this issue for political benefit either, according to election officials and observers.

In Ohio, the current secretary of state and his predecessor both dealt with those who turned voting rights or voter fraud into fundraising opportunities. Jennifer Brunner, who was Ohio's secretary of state during the 2008 election, went to a secretaries of state dinner in early 2014 where at least four candidates were talking about voting rights. "Only one of them was running for secretary of state," she said. "That's gotta tell you something right there."

"Partisans -- they don't want this to be resolved," says Husted. "They want to rally their base. People can raise money off this, don't want peace, they want to stir people up. So that's what they do."

Becker also sees election fights as an unwinnable political battle. "Almost entirely all of the election officials we deal with, Democrats, Republicans, elected or appointed, are all incredibly good at what they do," he says. "Ohio is a great example of that. Husted is attacked from the left and right pretty consistently. His office, and Democrats in purple states, all do a remarkably good job considering. I think they carry out elections as fairly as they possibly can."

Jaime Fuller reports on national politics for "The Fix" and Post Politics. She worked previously as an associate editor at the American Prospect, a political magazine based in Washington, D.C.

DMU Timestamp: December 10, 2014 22:41

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