To say that the last few weeks have been good for challengers to voting restriction laws across the country would be an understatement.
“It’s been like Christmas Day,” said Liz Kennedy of the liberal Center for American Progress.
Kennedy points to a cascade of rulings from several states that she says “stood up for the basic principle that all Americans deserve to have their voices heard at the ballot box without manipulation or suppression.”
The rulings include a federal appeals court opinion that invalidated key parts of a North Carolina law, a different appeals court decision softening a Texas photo ID law, a state district court in Kansas that temporarily enjoined a proof of citizenship requirement for state and local elections and another federal ruling that softened Wisconsin’s voter ID law.
The latest opinion came down on Monday when a federal judge in North Dakota granted a preliminary injunction requiring North Dakota to institute fail safe provisions in its voter ID law.
In some ways, the North Carolina ruling was the most expansive and powerful for liberal groups because the law was the first passed after the Supreme Court struck a key provision of the Voting Rights Act in 2013. That opinion sent liberals into despair and motivated Republican-led legislatures to pass new restrictive laws that they said would protect fair elections and combat voter fraud.
In an 83-page opinion, Judge Diana Gribbon Motz, writing for a three-judge panel of judges on the Fourth Circuit Court of Appeals, referenced the fact that “immediately after” the Supreme Court issued the Shelby County decision, North Carolina’s General Assembly “vastly expanded an earlier photo ID bill and and rushed through the legislative process the most restrictive voting legislation seen in North Carolina since enactment of the Voting Rights Act of 1965.”
Motz said the new provisions of the law targeted “African-Americans with almost surgical precision.”
As soon as Motz’s opinion was released, GOP Gov. Pat McCrory, along with other supporters of the law, vowed to appeal either to a larger panel of judges on the appeals court or to the Supreme Court.
State Senate Leader Phil Berger and state House Speaker Tim Moore, both Republicans, said the opinion had been issued “by three partisan Democrats” and said that it “ignores legal precedent.”
For advocates of voting rights, however, the opinion symbolizes the work they’ve done in the years since the Supreme Court ruled in Shelby County v. Holder.
In that 5-4 case, the Supreme Court said that the coverage formula used to determine which states would be required to have the federal government review their voting changes was outdated and that Congress needed to act.
“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” wrote Chief Justice John Roberts in the court’s opinion.
But critics immediately (and correctly) predicted said that the deeply divided Congress would never act, and they said the true effect of the decision would be to essentially gut the provision that required the federal government to “preclear” – or approve –any voting changes in certain states.
Justice Ruth Bader Ginsburg, writing a dissent on behalf of herself and her three liberal colleagues, lamented the majority’s opinion back in 2013.
“Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote.
Allison Riggs, a senior attorney at the Southern Coalition for Social Justice, says the North Carolina ruling and some of the other ones undermine Shelby.
“The majority’s opinion in Shelby stood for the proposition that things were much better, that we were practically in a post-racial society,” she said. “And now you’ve got federal judges saying that they are seeing a spate of laws that are racially discriminatory and have racially discriminatory effect.”
But supporters of the Shelby County decision see things differently.
The conservative Heritage Foundation’s Hans von Spakovsky says the North Carolina decision reflects that “pre-clearance was not necessary, that voting rights could be handled by traditional litigation.”
He also stressed that he believes the North Carolina decision was wrongly decided.
“There is no evidence of a discriminatory intent or effect on the part of the legislature,” he said.
Riggs dismisses the notion that so called “traditional litigation” is enough. While pleased with the recent opinions she believes Congress should act to restore the full Voting Rights Act.
“These challenges have come at a cost to the litigants, and to our democracy,” she said.