Editor’s Note: Kristen Clarke is president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, which leads the Election Protection Coalition, the nation’s largest nonpartisan voter protection program, anchored by the 866-OUR-VOTE hotline. Follow her at @KristenClarkeJD. Ezra Rosenberg is co-director of the Voting Rights Project for the Lawyers’ Committee. The views expressed here are solely hers. View more opinion articles on CNN.
As we celebrate the 53rd anniversary of the Voting Rights Act, which vastly improved voter turnout, this country is at a crucial juncture in the centuries-long struggle to create, maintain, preserve, and ensure true equality of voting rights for members of minority populations. That we are still concerned about this well into the 21st century is incredible. That we, especially those of us who work to make voting readily accessible to all, are even more concerned than we were five years ago – when the Supreme Court gutted a key provision of the Voting Rights Act in Shelby v. Holder – is frightening.
On August 6, 1965, President Lyndon Johnson signed the Voting Rights Act, which took critical action against literacy tests and poll taxes and provided for federal oversight of voter registration in places where less than 50% of the nonwhite population had not registered to vote. Martin Luther King Jr. and other civil rights leaders were present for the enactment of this legislation that gave African-American voters the legal means to challenge voting restrictions.
Only 12 years ago, in 2006, a unanimous Senate and a nearly unanimous House of Representatives re-authorized Section 5 of the Voting Rights Act, the crucial provision that prevented jurisdictions with a history of discriminatory voting practices from implementing any changes in voting without federal preclearance.
Nevertheless, a scant seven years later, a deeply divided Supreme Court handed down a decision that, in the words of Congressman John Lewis, “put a dagger in the heart of the Voting Rights Act of 1965.” Shelby County v. Holder overturned Section 5. This left Section 2 as the Voting Rights Act’s sole remaining prohibition of racial discrimination in voting. But since January 20, 2017, the DOJ has not filed a single suit under Section 2 of the Voting Rights Act.
Of equal concern, today we have an administration partnering with those who have used the myth of voter fraud to further the passage of laws aimed at suppressing the votes of minority voters. Just recently, the President exhorted a Florida rally that “the time has come for voter identification,” ignoring that 34 states – including Florida – require some form of voter identification.
The President’s fixation with the myth of millions of fraudulent votes manifested itself in the creation of the ill-conceived Presidential Commission on Election Integrity, run and peopled with the leading purveyors of the canard of voter fraud as a means to further voter suppressive laws. The early termination of the commission was one of the few bright spots in this administration’s voting rights activities. Not surprisingly, documents produced last week in litigation brought against the commission by one of its members, Maine Secretary of State Matthew Dunlap, showed that the commission had no proof of widespread voter fraud.
Meanwhile, voting rights for minority groups have faced sustained assault. After Shelby, a myriad of discriminatory voting practices have been implemented both in jurisdictions previously covered by Section 5 and those that were not. Many of these practices are subtle and occur at the local level, allowing them to fly under the radar now that the advance notice protections of Section 5 are gone. These practices range from the consolidation of polling places to make it less convenient for minority voters to vote (black voters, nationally, wait twice as long as white voters to vote), to the curtailing of early voting hours that makes it more difficult for hourly-wage workers to vote, to the disproportionate purging of minority voters from voting lists under the pretext of “list maintenance.”
Before and for three years after Shelby, the Department of Justice was at least an engaged partner in the fight for civil rights, and one with capacity and resources which civil rights organizations could not match. Times are different now.
While the DOJ’s more recent inactivity is troubling, its few recent affirmative steps in the voting rights arena during this period are more so. Since Donald Trump’s inauguration, the Department of Justice has reversed or retreated from prior positions in at least three significant voting rights matters, including two in which it abandoned claims of intentional discrimination.
The DOJ’s reversal of positions signals to lawmakers that there is a degree of tolerance for voting discrimination. It runs the risk of being perceived as a wink-of-the-eye to those who would push the limits of discriminatory tactics, and a cold shoulder to those vulnerable populations who have counted on the federal government to have their backs.
What the President is really pushing for with his comments about voter identification and voter fraud are the sort of more stringent voter ID statutes that courts have found to be racially and ethnically discriminatory. Most of these statutes require photo IDs, less likely to be possessed by minority voters, and exclude those – like public employment and public university IDs – more likely to be possessed by minority voters. And what the President was also pushing was the discredited myth of voter fraud. Texas’s voter ID law, for instance, has now been declared unlawfully discriminatory. In the 10 years leading up to the law’s original passage, there were only two known instances of in-person voter fraud out of 20 million votes cast.
Similarly, allegations of widespread noncitizen voting have been grossly overstated in the past, as the Ohio secretary of state’s study of recent elections proved. The placement of any noncitizens on the rolls is usually the result not of intentional fraud, but of administrative error. The remedy to this is not restrictive requirements, such as proof of citizenship documentation, which impacts minority groups disproportionately, but rather better training and oversight of the administrative process.
The combination of the effective elimination of Section 5 of the Voting Rights Act, the DOJ’s actions and inaction, and the administration’s touting the mantras of voter suppression presents a perfect storm not seen since the days preceding the enactment of the momentous civil rights legislation in the 1960s. As we observe the anniversary of the Voting Rights act, we must rededicate ourselves to a simple proposition: do everything possible to help people vote, not stop them from voting.