Section Five of the Voting Rights Act required states with a history of discrimination to get ‘pre-clearance’ from the government before changing voting laws. Last year, the Supreme Court struck down key provisions of the Act, including Section Five. Since then, 22 states have passed laws restricting voting rights. Some are requiring photo IDs or proof of citizenship. Others are cutting back on early voting days or eliminating polling places. And last week, a federal judge rejected a challenge to North Carolina’s new voting laws, widely considered the most restrictive in the nation. An update on voting rights around the country and calls for congressional action.
- Devlin Barrett Reporter, security and law enforcement, The Wall Street Journal
- Sherrilyn Ifill President and director-counsel, NAACP Legal Defense Fund
- Stuart Taylor Author and journalist, senior fellow, The Brookings Institution; contributing editor, National Journal; co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It"
- Wendy Weiser Director, Democracy Program, Brennan Center for Justice
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Last year the Supreme Court declared key parts of the Voting Rights Act unconstitutional. Since then, 22 states have enacted new restrictions on voting. Many of these new laws require photo IDs or proof of citizenship and are in place for the upcoming November elections. Joining me to talk about states' efforts to restrict voting rights, Stuart Taylor of the Brookings Institution and Devlin Barrett of The Wall Street Journal.
MS. DIANE REHMJoining us by phone from Seattle, Sherrilyn Ifill of the Legal Defense and Education Fund, and from the NPR studio in New York City, Wendy Weiser of the Brennan Center for Justice. I invite you, as always, to be part of the program. Give us a call at 800-433-8850. Send us an email to firstname.lastname@example.org. Follow us on Facebook or Twitter. And thank you all for joining us.
MR. DEVLIN BARRETTThank you.
MR. STUART TAYLORNice to be with you.
MS. WENDY WEISERThanks.
MS. SHERRILYN IFILLThank you.
REHMAnd, Devlin Barrett, I'll start with you. Remind us of what the Supreme Court decided in the Shelby case last year.
BARRETTRight. So last year the Supreme Court knocked down a -- or essentially made unworkable a key part of the Voting Rights Act, which set aside nine states in total and six partial jurisdictions within other states that were essentially required to prove, before they made any election law changes, that those changes would not harm the ability of minorities to vote.
BARRETTSo what basically the Supreme Court said was it is unfair to hold these states, most of them in the South, to a sort of permanent parole on issues of voting rights because of sins of previous generations. Meaning you can't punish them forever or you can't hold them to a higher standard forever because of what they did in the '50s and '60s and earlier.
REHMAnd what about North Carolina? There's a new situation there.
BARRETTRight. And North Carolina was one of the states where some parts of the state were under Section 5 and some weren't. But right after the Shelby decision, North Carolina passed a series of changes in their voting laws that really got the attention of the Obama administration's Justice Department because they viewed the changes both individually and collectively as diminishing or adding barriers to the ability of minorities and poor people to vote.
BARRETTWhat we had earlier this month was a federal judge who looking at that and looked at the arguments, basically ruling on the -- in favor of the state and saying, actually, "No. I'm not going to give you a preliminary injunction. At least not for this coming election." And he's going to have a full trial next year, but for the coming election, this judge's ruling is that those voting law changes will stand.
REHMAnd it's interesting you mentioned Southern states. But now you have two high-profile cases in Wisconsin and Ohio, Devlin.
BARRETTRight. And this is part of why the voting rights fight has become so interesting and how it's changing even as we're still arguing about the Southern states to some degree. You've got a fight in Wisconsin over a voter ID law. In that decision a federal judge actually ruled in favor of the Justice Department. So they have a little bit of ammunition there. In Ohio, you have an ongoing case over their -- Ohio state officials were to scale back the early voting days within that state. And all of these cases are going to be hard fought and they go beyond the sort of what people tend to think of as the traditional battlegrounds of voting rights issues.
REHMWendy Weiser, I know the Brennan Center recently released a report on what's happening in various states on voting rules. How many states have you got now, acting to restrict voting? And how are they doing it?
WEISERWell, there's a range of different ways they're doing it. We have been, in many parts of the country, but largely in the Southern states and in the Midwestern states, seeing a real high-pitch battle over voting rights. Accumulatively, starting since the 2011 legislative cycle, we've seen 22 states put in place new restrictions to cut back on voting rights. And 15 of those of states will see them -- assuming courts don't block them -- in place for the first time in a major federal election this year.
WEISERThese requirements include new, strict voter ID requirements, proof of citizenship to register to vote, a range of cutbacks on voter registration opportunities, cutbacks on early voting opportunities that are going to make it much harder for many Americans -- and at this point in a significant part of the country -- to vote in 2014 than they did in -- then they had in 2010.
REHMAnd what or who is the source of these new voter restrictions, Wendy Weiser?
WEISERWell, we've seen this take place in a range of states. Where it has been most common is in states that saw significant increases in minority voter turnout in the 2008 election. The -- a recent study by political scientists at the University of Massachusetts found a significant effect. The more there was an increase in minority turnout, the more likely a state was to pass restrictive voting laws. This is true that in seven of the 11 states with the highest African-American turnout in 2008, we saw new voting restrictions.
WEISERAnd a majority of the states, 9 of the 12 states with the highest Hispanic population growth over the past decade, we've seen new voting restrictions. And in most of the states, two-thirds of the states that were previously covered by the Voting Rights Act, we see new restrictions.
REHMSo, as far as your report goes, what becomes the source of this movement toward greater restriction?
WEISERWell, this is taking place in state legislatures. And the other factor that's in place -- not just race -- is partisanship. We found that these laws have been passed almost exclusively in laws that were completely controlled by Republican governing bodies. So that both the legislature and the governorship were controlled by Republicans. So those are two of the most significant factors in play in where these laws are coming into effect.
REHMAnd turning to you, Sherrilyn Ifill. What's your reaction to what's happened with voting rights after the Shelby decision last June?
IFILLWell, Diane, thank you. We've now a year to assess what the effect of this decision has been. And it's pretty much what many of us predicted. The Brennan Center report that Wendy Weiser referred to is fairly comprehensive in describing and setting out the places and the locations where these new restrictions are happening. We've also been cataloging restrictions on voting since Shelby.
IFILLAnd one of the issues I raised I think even with you, Diane, last year was that we needed to focus on local jurisdictions. And that is precisely what we're seeing. We're seeing polling place closures, changes to -- and restrictions to early elections. We're seeing consolidation of districts at the school board and the town council level. Things that are really hard to keep up with and that don't make the national news.
IFILLAnd yet, at the same time, Diane, a study recently came out, conducted by Justin Levitt, a professor at Loyola Law School, that shows, for example, that the justification for voter ID simply doesn't exist. He assessed over a billion votes that have been cast between 2000 and 2014. And he found in that billion votes only 31 credible instances of in-person voter fraud. And that's credible instances, not prosecuted. And yet, at the same time, he also found that states that have voter ID laws don't have an increased confidence among the electorate in voting.
IFILLAnd so what we find is that these laws are being created without any real justification and yet, they're restricting the votes of African-Americans, restricting the votes of Latinos, burdening the poor, burdening the elderly, burdening rural voters, and frankly, this is shameful in 2014 that rather than moving towards expanding the opportunities to participate in the political process, we're seeing those restrictions increase.
REHMAnd I gather there have been a great number of polling places closed. For example, in Athens, Ga.
IFILLWell, Georgia's been a particularly interesting place as it relates to polling place changes. In Baker County, Ga., last summer, a plan was announced to close four out of the five polling places in the county, which would have required black voters to drive 25 miles to vote. Morgan County, Ga. closed a third of its polling places. And the city of Athens planned to close all but two of its 24 polling places and to place those two polling places in a police station.
IFILLIt required the action of community members, lawyers and so forth to begin to advocate and push to derail that effort. But that effort in Georgia that we're seeing in counties all over that state, is mirrored in Florida, North Carolina and other places where polling places are the under-the-radar way in which votes can be suppressed.
REHMStuart Taylor, what's your reaction to what you've heard from Sherrilyn and from Wendy?
TAYLORI think that a lot of that's generally true. And I'm not a supporter of these new laws. On the other hand, I'm not a huge critic of these new laws. I think they're, you know, they may or may not do some harm. I think the case that they are as important as critics of them say they are is not been made. And I think the case that they're racially motivated has definitely not been made. Sure, they're partisan motivated.
TAYLORRepublicans pass them, Democrats oppose them. So we know that Republicans thing they're going to help Republicans and Democrats think they're going to help, I mean, sorry, you know, the new laws are. And Democrats think they're going to hurt their side. But I think Judge Thomas Schroeder's decisions in the North Carolina case is worth a close look. Because he finds the complaints…
REHMAll right. And we'll take a close look at that decision after a short break. We will take your calls, questions, comments. I look forward to speaking with you.
REHMAnd welcome back. We're talking about new laws that restrict voting rights in places in the south, new laws in Ohio and Wisconsin. Stuart Taylor, just before the break, you were talking about Thomas Schroeder, a judge in North Carolina and his ruling.
TAYLORRight. This was the federal judge who on August 8, I think it was, upheld at least preliminarily the North Carolina laws that had been denounced by critics of all these new laws as particularly extreme. And as Devlin said, the North Carolina legislature, Republican dominated, did jump on the opportunity to pass these laws as soon as the Shelby County decision came down. But Judge Schroeder was not persuaded that they're really making it hard for minorities or Democrats to vote.
TAYLOROne-hundred-twenty-five pages praised as well-written and reasonable even by some critics who disagree with the bottom line. And on voter fraud, he said the evidence that it was going to make it harder for minorities to vote was not particularly strong. And as to reducing early voting, they reduced it in North Carolina from 17 days to 10. But the 10 days are longer than the 17 days, so the number of hours remains about the same. And he was not persuaded that this would be a big obstacle to minority voting.
TAYLOROn the voter ID fraud thing, it's worth adding, although I'm not a supporter of those laws, I'm a little agnostic about them, the American people are by broad majorities of the polls I've seen including black people. The commission, bipartisan commission in 2005 headed by Jimmy Carter and Jim Baker, strongly recommended that voter ID laws be passed to give people confidence that there wasn't fraud going on at the polls. Maybe there's not fraud going on at the polls but the people wanted -- the people seem to want these things. And I'm not convinced that they're bad.
REHMDevlin, can you tell us what we know about voter fraud? How much has in fact been documented?
BARRETTProsecutal (sic) proven voter fraud is extremely, extremely rare.
REHMWhat does that mean?
BARRETTIt means, for example, I covered a trial in Texas where -- Texas has been having these fights for years, actually long before last year's Supreme Court decision. And as I remember it, they put -- the Texas lawyers put forward essentially less than five cases of apparent voter fraud, including one in which a person was stopped from voting because the poll worker literally went to high school with the person and knew that person wasn't who they claimed to be.
BARRETTAnd it's just such an infinitesimally small percentage of the vote that Democrats argue that it's a knar, that it's basically a rouse to justify trying to tweak who comes out and who can vote.
BARRETTRepublican -- OK.
REHM...here is an email from Robert. He says, "ID requirements are not in place to restrict voting rights unless you mean restricting ineligible people from voting. ID requirements are to prevent voter fraud which contrary to the lefty urban legend to the contrary is widespread especially in the north." Wendy Weiser, what do you find?
WEISERWell, the evidence on voter fraud is exactly as we've just heard. It is an extraordinarily rare phenomenon. It is something that we should all oppose and there's really strong protectants in place against it. On voter ID, the fight isn't over whether voters should have to identify themselves. It's about this new species of highly restrictive and inflexible voter ID requirements that require Americans to show forms of ID that many don't have. So the real fight is over the particular voter ID requirements that are new.
WEISERWe've had ID requirements in much of the country for a long time but these new very restrictive ones are the ones that people are worried are keeping away large numbers of eligible voters, and particularly elderly voters, veterans, minority and low-income voters.
REHMAnd how are these laws more restrictive, Devlin?
BARRETTHow are the laws restricting of people coming out?
BARRETTBecause what they'll do, a lot of them reduce the amount of early voting period. A lot of them...
REHMNo. But the voter ID, how are those laws more restrictive?
BARRETTWell, the argument against those is that what you're -- there's a group of people who don't have ID. As inconceivable as that is to many Americans, there are, in fact, a lot of people who don't have ID. There are also a lot of people who don't have birth certificates. So the argument has long been, if you make everyone go back and get a voter -- get an ID to vote, it's fine if the state says that they will give those to you without charge. But oftentimes to get the underlying documentation can require a lot of time and expense, which is also a burden.
REHMSherrilyn, how difficult is that for people to get an ID?
IFILLWe've been involved in the litigation challenging the Texas voter ID law, which is one of the most stringent. And you ask the question, you know, how has it changed. We represent in that case students who, prior to the imposition of the new voter ID law, could use their university ID to vote. And now can no longer use that university ID. This is a state where of course you can use however a concealed gun carry permit as legitimate ID to vote but not your student ID.
IFILLWe deposed an elderly woman several weeks ago in Texas. She was born at home in Louisiana with a midwife. She's lived in Texas however her whole life. She has voted for 50 years. She does not have a birth certificate. She does not have any form of photo ID. And now she has to find some way to get some government-issued photo ID in order to vote in the State of Texas. And she literally had tears in her eyes talking about how she has voted for 50 years and how proud she has always been to vote.
IFILLSo this is not de minimis. You can be sanguine about it and say, you know, it doesn't seem to matter very much. But it does matter to individual citizens of this country who want to participate in the political process. And we've estimated that there are 800,000 people in Texas who do not have the kind of government-issued photo ID that is now required under the Texas photo ID law.
TAYLORI think the Texas provision may well be bad as a great judge in D.C. held a while back, David Tatel. I put a lot of stock in what he says about things like this. But again for perspective, A. a lot depends on the details. For example, in North Carolina you can cast a provisional vote if you don't have an ID. They can make it easy to get an ID that doesn't take effect until 2016. Texas may be tougher.
TAYLORAlso, just for perspective, the Obama Administration is now requiring just about everybody to get a social security check, not by check but by automatic deposit into a bank account. Well, it's not easy to open a bank account or to cash a check without a photo ID. It's not impossible, but it's not easy. Where is the clamor about that? I think there's a lot of partisan advantage here.
REHMSherrilyn Ifill, do you want to comment?
IFILLWell, I only want to say that, you know, the right to vote as the Supreme Court has said, is preservative of all rights. Comparing the right to vote to getting a check, to entering a federal building, all the comparisons that I've heard made simply don't hold up. This is the marker of citizenship. This is the way in which citizens in this country participate in the political process and exercise their principle right as citizens.
IFILLIt matters, it's different, it's of a different category, and I think the burden should be on those who want to create these ID laws to justify why. Why now when all of the data shows that this is de minimis? In fact, the voter fraud that happens usually happens through absentee ballot.
IFILLAnd that means that people who are upset about voter fraud should love early voting because that encourages people to come to the polls and not vote by absentee ballot. Why would we suddenly make this change now when it has this burden. Even if it's de minimis and it happens not to be de minimis, why would we make this change now?
REHMSo what is your belief, Sherrilyn? Is this about politics or is it about race?
IFILLI'm glad you asked that question, Diane, because I think people tend to say, you know, this is about Democrats and Republicans and it's partisan. And, you know, you'll hear these references to the Republicans and the Obama Administration. And I just want to say that having been a voting rights lawyer for 25 years, I have sued both Democrats and Republicans. And what we fight for is the ability of minority voters to participate in this political process. And that's what the Voting Rights Act is targeted at.
IFILLNow if it turns out that your partisan machinations actually coincide with the suppression of votes of African-Americans, you are not cleansed from the fact that you are suppressing minority votes merely because your principle desire was to become elected. Everyone knows because of our hyper segregated society the ways in which partisanship overlays with race. And so I don't think using the partisan, you know, label to describe this somehow cleanses it of its discriminatory effects as it relates to race.
WEISERI agree with what it is that Sherrilyn said. And I think that really the motive is important in some of these cases but it is not the only thing that's important. The right to vote, as our constitution protects, it cares about the burdens that these laws place on voters and whether or not they're sufficiently justified. And as we've heard, the justifications are de minimis at this point. And the burdens are fairly significant for certain classes of voters.
WEISERSo this is really what we should care about. We shouldn't be wasting our effort making it harder for people to vote in service of a goal that we've already accomplished. What we should be doing is modernizing our system so that it works well for everyone.
TAYLORI agree with all that but one thing. The premise of all of that was that voter ID laws are suppressing minority votes. I'm not persuaded that's true. Judge Schroeder found that he's not persuaded that it's true, and a pretty good opinion. Majority of the American people, including African-Americans, don't seem to be persuaded it's true. The presidential commission headed by Jimmy Carter and Jim Baker didn't think it was true. Maybe it's true. I think the burden of proof is on those who maintain that it is.
WEISERI just wanted to clarify that these judicial opinions and commission took place not looking at a law that's already been in place, but seeing whether or not the people challenging those laws have proved that they will have that impact. And that's a very hard thing to do. What we're going to see here in 2014, if the courts don't step in and block these laws, is the first large-scale experiment with some of these restrictions in place. And we're going to start seeing stronger effects than we've been able to see in the past.
BARRETTCan I -- I'm a little skeptical of that for one reason, because the coming election is a midterm election in which you will presumably have much lower turnout. I actually think the Republicans could come through this election cycle with a stronger argument for these laws not having a negative effect because it will likely be a quote unquote "low turnout election."
BARRETTYou know, a lot of the liberals like North Carolina opened its process over the last ten years in large part because of big lines at voting places. That was a problem you saw in lots of different places including North Carolina. So they opened the process and they added more voting. We're not likely to see long lines in 2014 because it's a midterm election. And I think that probably works strategically to the Republicans' advantage.
REHMAnd you're listening to "The Diane Rehm Show." Devlin, talk about what's going on in Ohio and Wisconsin. These are, are they not, so-called swing states?
BARRETTWell, they are and that's sort of -- it's the difference between frankly this election cycle and the next one because you could -- in the issues of voting rights you could think of this fight as sort of a preliminary round for the bigger fights that are likely to happen when a presidency is on the line. And one of the interesting dynamics is, for the last two presidential election cycles we have had a black candidate. And that has driven up black turnout.
BARRETTFor example, in North Carolina, part of what has happened is that black registration in North Carolina now exceeds white registration as a percentage of each group. So you're -- so it's to -- me one of the big questions about 2016 is, assume for the sake of argument you have two white candidates. What happens to the black vote in that election and how is that data used to argue the fairness or unfairness of these laws? And will it have really been because of those laws at all or will it be because there is, in theory, no black candidate in the race that year?
IFILLI think it's important to do two things. One is to clarify what the judge said in North Carolina. The North Carolina decision that came out last week was about the effort of the parties to the plaintiffs to get a preliminary injunction, meaning to stop the ID law from being put into place this year. What the judge said was that, I haven't seen enough to show me that you're likely to win the case and that you're likely to suffer irreparable harm if we allow the voter ID law to go on. So we're going to allow it to go on.
IFILLBut he also said the plaintiffs have created -- have presented a plausible claim that is entitled to being reviewed. And this case will go to a full trial next year. So we should be very careful about describing that case as somehow a judge having suggested that there's no effective voter ID.
IFILLI do agree with what I just heard about the midterm elections in 2014. And we don't know yet what we're going to see. We don't know whether we're going to see long lines. We know that turnout is generally low in midterms so it's going to be difficult to figure out and to gauge how we assess what happens in this midterm election. Obviously we'll all be on the scene trying to collect that data and evidence, but it's not the same of course as a presidential year when turnout tends to be incredibly high and you see the kinds of terrible long lines that we saw in 2012.
IFILLSo this requires judges, I think, to have a measure of humility and to listen to the evidence that's presented to them. You heard that Judge Posner from the 7th circuit talk about the way in which judges really don't understand the electoral process. And what I think we would like to see, those of us who litigate these cases would like to see from the Supreme Court on down for judges to have a little bit more humility and to really listen to the evidence that's presented, make the proper inferences and be very, very careful before dismissing claims of what may happen with these voter ID laws.
TAYLORWell, yes, what Judge Posner said, cuts both ways. If judges should have humility and they don't understand the process, maybe they should defer more to the Democratic process rather than set themselves up to veto everything. Bob Bauer, former council to President Obama and one of the leading voting lawyers and one of the most smartest (sic) in my opinion in the country said the following, law is proposed, made and litigated on speculation about its effects on the political process that is often ideologically grounded.
TAYLORNow I think that's true. I think it's a problem that all of us have in coming to confident conclusions about this. That's one reason I'm less confident of these conclusions that we've heard today than others are.
BARRETTAnd I would just make a point to Sherryl's point about the North Carolina decision. She's right that it's a preliminary injunction ruling, but it is also a 125-page preliminary injunction ruling. And from my conversations with the folks who work on this issue on the government side, they really feel that if they can't win in North Carolina they have a very stiffer climber in the other cases.
REHMDevlin Barrett of The Wall Street Journal. When we come back, you weigh in with questions, comments. I look forward to hearing from you.
REHMAnd welcome back. We'll go right to the phones, first to Orlando, Fla. Hi, Craig. You're on the air.
CRAIGHi, Diane. Thanks for taking my call. I really appreciate it.
CRAIGI really don't find it unreasonable -- and I know that voter ID is only one part of this equation. But I really don't find it unreasonable to require people to have some sort of identification. And I really think one of the problems with the restrictions of ID is that it can be really hard to get identification. And my wife does a lot of work with the homeless.
CRAIGAnd for them, getting identification is a real challenge with certificates, with all the forms, everything you have to do to get identification. Has there been any talk of making identification easier to get for people who have a hard time getting identification? Kind of changing the narrative instead of it being something about a restriction of identification...
REHMYeah. Gotcha. Gotcha. Devlin.
BARRETTThere has been a lot of talk of that, and there are -- states vary greatly in terms of how they structure that ID requirement, which is why, you know, some states have ID requirements that the federal government is fine with essentially. The challenge becomes, you know, do you make an ID requirement that is so loose that it essentially becomes not an ID requirement? I think one of the odd sort of dynamics of the public discussion of this is that, for most Americans, it's sort of inconceivable that you don't have ID.
BARRETTAnd that's a normal thing to think for most Americans.
BARRETTBut, look, it's simply a fact. There's a significant percentage of the population that doesn't have ID, and it's hard for them to get it.
REHMWe have an email from Douglas who lives in a part of North Carolina where he says, "Minority population is incredibly poor. Many can travel only by bike, and even sometimes lawnmowers. But most walk. Few have cars, much less money to pay for gas for travel. They're required to pay for a photo ID at the DMV if they don't happen to be wealthy enough to have any other form of ID. I question whether the men and women who died over the years to keep us free to vote did so in order to protect a poll tax for a voter ID." Sherrilyn Ifill, do you think this is -- does it fall into the realm of poll tax?
IFILLWell, I think it does, and I -- I'm so happy that this email came in because, you know, we've been having this discussion without any reference to the Voting Rights Act and without any reference to how this whole conversation really begins. And it begins with the Constitution of the United States, which in the 14th and 15th Amendment gives to Congress the sole enforcement power to protect against discrimination in voting.
IFILLAnd Congress chose to exercise that enforcement power through the passage of the Voting Rights Act in 1965 and its subsequent reauthorizations based on Congress' assessment of the relevant evidence available to it, including the reauthorization in 2006 in which Congress looked at all of the evidence of what's happening in voting. And it looked at the period between 1982 and 2006, and overwhelmingly, you know, 98-to-0 in the Senate, 396-to-33 in the House, Congress decided to reauthorize the Voting Rights Act based on the evidence that was before it of all of the voting restrictions and problems that minority voters faced in the prior 25 years.
IFILLAnd the Supreme Court has upended that because of its own view, its own hunch that things have changed sufficiently not to need the Voting Rights Act. This is not an abstract discussion, nor, frankly, is it a discussion about politics, which unfortunately it defends into too often. It's a discussion about the requirement within the United States' Constitution that there be no discrimination in voting, the delegation of the authority to enforce that to the Congress of the United States, and the decision of Congress to authorize the Voting Rights Act. So if there could be any deference, particularly deference in the judicial realm, that deference should be to Congress.
IFILLAnd the decision Congress made was to enact and reauthorize the Voting Rights Act, and that's what the Supreme Court upended last year.
BARRETTWell, but they reauthorized it without updating it which the Supreme Court had previously basically begged them to do. I mean, I would argue that part of the history of this process has been Congress sort of walking away from the Voting Rights Act and doing what some people would call the easy task of reauthorizing without giving the Supreme Court any sort of updates that the Supreme Court could hang their hat on and say, OK, you are at least acknowledging that the South won't forever be the South as it was in 1950.
TAYLORI actually agree with Sherrilyn that the Supreme Court should have deferred to Congress in that Shelby County decision and therefore that I think it was an unwise decision. I think it's a close call though because I think the court was properly concerned both about the point that Devlin just made but also that the Justice Department's Civil Rights Division hasn't been exactly a fount of neutral law enforcement. The Supreme Court has criticized the Civil Rights Division harshly for forcing states to adopt -- under Section 5 to adopt race-based redistricting.
TAYLORThe inspector general of the Justice Department found that it was riven with deep ideological polarization, disappointing lack of professionalism, and the harassment and then marginalization of employees and managers by both liberal and conservative factions. So I think it's a close call, but, bottom line, I wish they hadn't done what they did in Shelby County.
REHMAll right. Let's take a caller in Fort Myers, Fla. Richard, you're on the air.
RICHARDYes, ma'am. I'm interested in knowing about ALEC and what role they are playing in this process. I think the governor of Wisconsin mentioned that the way that they were going to defeat or win the day was going to be to divide and conquer. And I see this as a process of instilling fear that there's something amiss in this country and that a voter ID law would help that.
REHMAll right. Wendy Weiser, did the Brennan Center find any indication of ALEC's involvement? And you might just spell that out.
WEISERYes, ALEC is the American Legislative Exchange Council. It is a trade association of businesses and legislators that do lobbying in state legislatures, a conservative association. They have been through public reporting, not through any investigation by the Brennan Center, determined to have been involved in the voter ID legislative efforts in the states, pushing a model legislation and providing assistance to state legislators, moving it. That is all that we know from the public reporting on this. They don't make their activities public.
IFILLYeah. I'd have to say the same and defer to Wendy on this. I don't think, however, that the idea of these voter ID laws comes just, you know, that everyone just suddenly had the same idea at the same time, so, you know, of course it's worrisome to think about, you know, a concerted effort of some kind to impose these laws, you know, throughout various jurisdictions.
IFILLThe -- it's an interesting question because it goes back to my point about Congress, and that's the good news, is that, you know, the ball is back in Congress's court. And I hope that, you know, Stuart is not right about, you know, Congress walking away from the Voting Rights Act because, right now, there is a piece of legislation, the Voting Rights Act Amendment. It is not perfect. It is not, you know, perfect in all the ways that a voting rights advocate, like myself, would like.
IFILLBut it is a fix to the Shelby County decision. It is nationwide, so it does not focus and target the Southern states. It does constantly update itself in the kind of way that the Supreme Court suggested that they wanted. It does have 22 Republican co-sponsors. I testified when there was a hearing on the bill before the Senate Judiciary Committee last month. But we can't get a hearing in the House. And I fail to understand why the House is not willing to even have a...
IFILL...hearing on an updated Voting Rights Act on an issue that's this important that goes to the very heart of our democracy and to the public's confidence in that department.
REHMStuart Taylor, she's talking about the Sensenbrenner Bill. And why isn't it going anywhere?
TAYLORWell, it's a complicated bill, and I'm not expert on its detailed provisions. And there are objections to some provisions of it that may or may not be valid. One objection I've heard is that all the -- is that it treats people of different races differently on its face unlike previous laws. But I think there are other proposals around that have less momentum in Congress that may have more chance of being passed.
REHMHere is the question though. Is Congress willing to do anything about this now?
BARRETTI think if the question is, is a majority of Congress willing to do anything, I'd say no.
REHMNo. Is anybody?
BARRETTOh, sure. There are people -- look, the sponsors of these bills believe in this stuff. I take them at their word that they do. But I think, one, you have larger forces at play that resist certainly in an election year any kind of work being done. Frankly, I'm -- maybe I'm just a cynical old reporter, but I sort of feel like, even in a non-election year, this is a tough lift.
REHMWhat about the so-called secret weapon of the Voting Rights Act? Can you use Section 3, Sherrilyn Ifill, to enforce voting rights?
IFILLWell, Section 3 of the Voting Rights Act includes a bail-in provision, and it's -- but it's a remedy. So it -- what it does is if you file a Voting Rights Act suit and you prevail in that Voting Rights Act suit, then a judge, based on what the judge has found in that case, can require a jurisdiction to be subjected to pre-clearance.
IFILLThis just happened in the city of Evergreen in Alabama last year where the judge found that the actions taken around municipal elections were so egregious that, at the remedy, the judge chose to what we call bail-in the city of Evergreen, requiring the city to pre-clear any voting changes that it would make related to city elections. So it's a remedy that happens only after you have prevailed in litigation. So it is not a substitute for Section 5 because, remember, what we had with Section 5, Diane, is we had, number one, notification of every voting change. You know, so when I describe to you all these polling place changes, this is what we've been able to run down...
IFILL...you know, intensely talking with people in communities and having to do kind of on the ground education about monitoring voting changes. And the second thing we lost with Section 5 is being able to stop a discriminatory voting change before it happens. Now we have to litigate it all the way through to the end, which is costly, which is incredibly time consuming, and which Congress didn't want, which is why it passed Section 5, to avoid litigation as the only tool to deal with voting discrimination.
REHMSo, Stuart Taylor, why shouldn't the Justice Department get involved here?
TAYLOROh, they can, and they should bring lawsuits under Section 2 or Section 3 of the Voting Rights Act, which are still quite valid. Now, that long litigation and process that was being denounced is the way the legal system works. It's the way voting litigation works in the vast majority states of the Union. It's the way it...
REHMBut if it keeps people from voting because it takes such a long time, aren't basic constitutional rights being denied?
TAYLORI don't think you have to upend the traditional legal system to protect voting rights. Voting is not very difficult in this country. And, for example, Ohio is widely seen as at least as likely to act improperly on voting rights than most of the states that used to be covered by the Voting Rights Act. It's not covered.
REHMAnd you're listening to "The Diane Rehm Show." Talk about Ohio, Devlin.
BARRETTWell, Ohio to me brings up, just to his point, a great issue which I think is sort of a weakness of the Justice Department's case here. And that is Ohio, which the Justice Department is arguing is doing the wrong thing, has more than three weeks of early voting, even in its scaled-back version. New York State, which was a former Section 5 -- partially a former Section 5 state, has zero early days of voting.
BARRETTBut no one in the government is making any argument that what New York State's doing is unfair to minority voters. I think one of the issues that, frankly, the Shelby decision sort of raises is what is equal opportunity among the states, not just inside the states? And one of the things that the North Carolina judge points is, you know, you're saying this reduction of early voting is unfair, yet you have -- yet it's apparently, by your own logic, completely fair for lots of other states to have no early voting.
WEISERYou know, I think that comparing states is not really appropriate in the circumstance. In Florida, where there was some early voting, we had extraordinarily long lines in both the 2008 and 2012 elections. And in New York, where there is no early voting, the lines were not nearly as long on -- except in the hurricane-ravaged areas.
WEISERThat's, you know, there's a lot of particular aspects with the state's election system that will determine what is reasonable access in that state. And in Ohio, the days that have been cut out of the early voting system, as in North Carolina and in Wisconsin, the allegation and the evidence we've seen so far is that those are the day that African-American voters used much more frequently than white voters to vote.
WEISERYou know, in North Carolina, it was a quarter of African-American voters who voted in 2008, voted on that -- the days that were eliminated.
REHMAnd, Wendy, tell us about the presidential commission that recently weighed in on these issues. How influential was that on the states?
WEISERWell, I think it's a little too early to tell, but it is good to say that the news isn't all bad. We have been, in many states, in a battle over voting rights. But at the same time, there is a growing consensus around reforms, a bipartisan consensus that was reflected in the recommendations of a presidential commission, co-chaired by two very prominent partisans, that was issued earlier this year, calling for modernizing the voter registration system, expanding early voting nationwide and implementing some other minimum polling place standards to ensure that no voter has to wait in line more than 30 minutes.
WEISERThese are things that enjoy widespread support, and we're actually seeing a lot of momentum in many states across the country towards putting in place these reforms.
REHMAll right. We'll have to leave it there. Wendy Weiser, Sherrilyn Ifill, Devlin Barrett, Stuart Taylor, thank you all so much.
REHMAnd thanks for listening, all. I'm Diane Rehm.
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