Read the first part of this column here.
In June 2013, in a case called Shelby County vs. Holder, the U.S. Supreme Court overturned a key provision of the Voting Rights Act. Section 5 of the landmark law, passed in 1965, required that states with a history of voting discrimination get preclearance from the Justice Department before making changes to their election laws. Congress had reauthorized the VRA regularly since its original passage, most recently in 2006, when a bipartisan majority re-upped it for 25 years, and President George W. Bush signed it into law.
But writing for the court in a 5–4 decision, Chief Justice John Roberts argued for the conservative bloc that preclearance was outdated, both because the problems that animated the VRA had been greatly ameliorated and because changes since 1965 would require a new preclearance coverage formula, which Congress was welcome to try its hand at (it hasn’t).
In her dissent, Justice Ruth Bader Ginsburg observed that “throwing out preclearance when it has worked and continues to work … is like throwing away your umbrella in a rainstorm because you’re not getting wet.”
As sure as day follows night, a deluge of new laws began appearing within days of the removal of that umbrella. In Texas, North Carolina, Wisconsin, and elsewhere, legislators approved new impediments to voter registration, making it easier to purge voter rolls, and, of course, imposing new photo ID requirements.
North Carolina passed one of the furthest-reaching of those laws. Its provisions included more limited early voting, elimination of same-day registration, and new voter photo ID requirements that excluded those for students at state universities (college students, for obvious reasons, are a common target of such legislation), government workers, and those on public assistance.
In 2016, the Fourth Circuit Court of Appeals invalidated the law, ruling that it tried to “target African-Americans with almost surgical precision.” The court noted that the law’s backers had “failed to identify even a single individual who has ever been charged with committing in-person voter fraud in North Carolina.”
These bills aren’t the only means by which Republican officeholders are trying to winnow and cull the electorate.
In 2018, by a two-thirds majority, Floridians approved a ballot measure to restore voting rights to state residents who had completed felony sentences. Florida was one of a handful of states that permanently barred convicted felons from voting even after they did their time. It’s also the largest such state by far, meaning it has the most such disenfranchised individuals, over a million people, a disproportionate share of whom are black.
In an attempt to overturn the referendum results, the Republican-controlled legislature passed a law that would deny people the right to vote until they paid all “restitution,” including court fees accrued during their imprisonment. As of now, the law has been invalidated—a federal judge ruled earlier this year that it amounted to a poll tax since it made voting rights dependent on one’s ability to pay. Florida is, of course, appealing.
All of this is arguably a prelude to an even more insidious development.
Since the 2016 election, President Trump has insisted—without evidence, naturally—that the only reason he didn’t win the popular vote (he lost by nearly 3 million votes) was that “millions” of non-citizens voted illegally. He has also repeatedly denounced the “birthright citizenship” clause of the 14th Amendment, which stipulates that any person born in the United States, essentially regardless of their parents’ status, is a citizen.
Two failed Trump efforts are noteworthy in this context. One was his attempt to put a citizenship question on the 2020 census, which, because its insidious political motivations were so obvious that even a clearly sympathetic Roberts Court couldn’t ignore them, ended in a legal defeat. The other was the “election integrity” commission he convened and filled with voting fraud conspiracy theorists, which collapsed under the weight of its own bad faith and incompetence last year.
These efforts, whatever their immediate effects on election outcomes, sow mistrust about the integrity of American elections. Whether or not they fail, what motivates them is clear—to cast doubt on the validity of claims to citizenship, including the right to vote, by certain kinds of people.
This is a standing threat to our democracy.
JONATHAN WEILER is a teaching professor in global studies at UNC-Chapel Hill and co-author of Prius or Pickup? How the Answers to Four Simple Questions Explain America’s Great Divide and Authoritarianism and Polarization in American Politics.
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