The first, Arizona v. ITCA, will decide whether this rogue state can require more proof of citizenship to register to vote than that which is already required by the National Voter Registration Act (“NVRA”).
The second, Shelby v. Holder, will decide whether Section 5 of the Voting Rights Act (“VRA”) is constitutional, or whether this important protection against discrimination in voting will be overturned.
Millions of African-American voters could be negatively impacted by both.
Misleading reports about voter participation
Some argue that protections against discrimination in voting are no longer needed, because in 2012, for the first time, African-Americans voted at a higher rate than non-Hispanic whites. This is a superficial argument that is contradicted by the facts, the law, and fundamental American principles of democracy. Latinos and Asian-Americans also increased their participation in 2012, but it was due to population growth.
In fact, their turnout was only 48 percent—which is a full 10 percent lower than the 58 percent voting rate of African-Americans in 1964 presidential election, the year before the VRA was passed in order to alleviate racial disparities in voting. Moreover, the increase in black voter turnout in 2012 was in defiance of an unprecedented wave of state voter suppression laws which were similar to the poll taxes which the 1965 VRA was originally enacted to prevent.
In 2012, many of these modern-day poll taxes were blocked by the very section of the VRA that the Supreme Court may overturn in the Shelby case. Section 5 of the VRA is perhaps the greatest legal protection for voters of color by requiring covered jurisdictions to submit voting changes for pre-clearance before they can be implemented.
More than 1,500 discriminatory voting laws have been blocked from going into effect due to Section 5 since its inception. Its continued relevance was clear in 2012, when it prevented Texas’ voter ID law that was found to be intentionally discriminatory, Florida’s restrictions on third party voter registration groups, and South Carolina and Mississippi’s strict photo ID proposals which could not be implemented due to Section 5’s pre-clearance procedures.
More than 9 million voters of color are registered in those four states alone.
Why section 5 matters
Section 5 applies in 15 states, mostly in the South and Southwest, and 12 of these states (80 percent) are considering restrictive voting laws this year. The main legal question before the Supreme Court is whether Section 5 is no longer constitutional because it is no longer needed.
However, the wave of discriminatory voter suppression in 2012, as well as ongoing voter suppression laws being considered in Section 5 states in 2013, clearly demonstrate its continued necessity. If we lose it, it could impact the majority of voters of color, as 66.7 percent of people of color who voted last year live in Section 5 states.
Moreover, even though the increasing demographic power of voters of color is clear, Section 5 states continue to trail the rest of the country in overall voter registration and turnout for black, Latino and Asian-American communities.
‘Racial entitlement’ myth
The other pending Supreme Court case, regarding Arizona’s requiring proof of citizenship in the form of a birth certificate, passport or naturalization papers, in order to register to vote, is equally concerning. Over 2 million African-Americans lack access to a birth certificate, which is why photo ID laws have a negative impact on their voting rights.
Arizona law not only contravenes the National Voter Registration Act, it would also make it harder for citizens without birth certificates or other papers to register and vote. Over 11 million American citizens lack access to these documents, and if Arizona’s show-me-your-papers-to-vote-law is upheld, other states may follow suit and disenfranchise them as well.
During the Shelby oral argument, Justice Scalia called the Voting Rights Act a “racial entitlement.” Nothing could be further from the truth. Our nation’s voting rights laws were hard won and they protect our most fundamental right. The ballot box is the one place where we are all supposed to be equal, and so we hope the majority of Justices do the right thing and rule in favor of voting rights in these two critical cases.