This week is the 5th anniversary of the U.S. Supreme Court’s Shelby v. Holder ruling, which gutted key provisions of the Voting Rights Act. At Advancement Project we have fought tooth and nail against discriminatory policies and practices that disproportionately limit the access of people of color to the polls — and which only increased after the unfavorable ruling on Shelby. As part of these efforts, our executive director, Judith Browne Dianis, gave remarks during a panel on Shelby in the U.S. House of Representatives on June 27, 2018. It was coordinated by the Congressional Black Caucus.
Remarks as prepared:
Thank you for the opportunity to give remarks on the anniversary of the Shelby v Holder decision and the state of voting rights in America today. My name is Judith Browne Dianis and I am the Executive Director of Advancement Project’s National Office. Advancement Project is a national racial justice organization that proudly works in deep partnership with grassroots organizations on the ground to inspire and develop community-based solutions based on the tactics and courage that produced the landmark civil rights victories of earlier eras.
The Supreme Court’s ruling in Shelby v. Holder decimated a key provision of the Voting Rights Act that blocked discriminatory voting practices before they could be implemented in states with a history of discriminatory voting practices, by striking the formula for determining what jurisdictions were covered. Since then, inclusive democracy is under attack in ways that dangerously and disproportionately imperil voters of color. Not only did Shelby open the door to discriminatory practices that would have been halted at the outset under the preclearance provisions, but it made it more difficult to challenge such laws, placing the burden on already under-represented voters of color and their advocates.
Within hours of the Shelby decision, the State of Texas announced implementation of a restrictive photo ID law that had been blocked under the preclearance provisions because of its discriminatory impact on African American and Latino voters – the court found that over 600,000 people lacked the ID needed to vote. Weeks later, North Carolina – where the DOJ had objected to more than 150 voting practices under the pre-Shelby provisions of the Voting Rights Act – passed the nation’s most wide-sweeping voter suppression law, eliminating positive measures responsible for expanding access to voters of color.[1] Alabama and Mississippi both moved to implement restrictive photo ID laws that had been lying in wait due to the VRA’s preclearance requirements. Within one year of Shelby, nearly three-fourths of the VRA’s previously covered states introduced restrictive measures targeting voters of color.
Amid these attacks on our humanity and our voice, we are fighting the same battle that the freedom fighters led during the civil rights movement. The attack on the right to vote is as vigorous as it has been in generations – at stake is our very voice, and indeed our very dignity.
It didn’t stop there. Republican controlled legislatures and secretaries of state have tried to make it harder to register, harder to vote and easier to be purged. For example, heading into 2016 presidential elections, states like Arizona and Georgia began moving and closing polling places. A study by The Leadership Conference Education Fund found that, since Shelby, voters in jurisdictions that would have been subject to the VRA’s preclearance provisions had nearly 900 fewer polling places in which to cast ballots during the 2016 elections. And states like Ohio purged thousands of voters from the rolls for not voting – a practice OK’d by the Supreme Court just two weeks ago in APRI v Husted. The Majority’s decision in the Husted case is alarming in its adoption of anti-voter rhetoric, offering a quasi-endorsement of the more aggressive voter purge systems in places like South Carolina that could extend to states that have similar removal procedures to Ohio’s – places like Wisconsin, Pennsylvania, Georgia – states that are, unsurprisingly, key electoral players. As we pointed out in our amicus brief to the Supreme Court on behalf of the NAACP in this case, purge practices like Ohio’s disproportionately impact voters of color. In her dissent, Justice Sotomayor acknowledged the disparities between the removal of African-American voters and White voters that we identified in our amicus brief: for example, in downtown Cincinnati, 10% of African American voters were removed under Ohio’s purge program compared to only 4% of voters in a white suburban neighborhood. Indeed, voters in Ohio’s three most populous – and racially diverse – counties (Cuyahoga, Franklin, Hamilton) were 200% more likely to be removed from the voter rolls due to lack of participation. This attack on the National Voter Registration Act list maintenance procedures that landed in the Supreme Court is no one off. Right wing groups like Judicial Watch and the Public Interest Legal Foundation have been going from state-to-state advocating for aggressive purging. Unfortunately, they have a friend in power at the Department of Justice, Attorney General Jefferson Beauregard Sessions, who the day after the Supreme Court made purging easier, filed a lawsuit against Kentucky to purge their rolls. The case was filed along with Judicial Watch. This is the state of the civil rights division at the Dept. of Justice.
In the last two years, at least five states, Arkansas, Iowa, Missouri (where we are currently in litigation), North Dakota and Texas have passed photo ID laws, which make voting more difficult disproportionately for communities of color. Such laws had a direct impact on turnout during the 2016 elections – one study found that but for Wisconsin’s strict voter ID law, an estimated 200,000 more Wisconsin citizens would have voted in 2016. In Milwaukee County, which houses state’s largest African-American population, sixty thousand (60,000) fewer ballots were cast in 2016 than in 2012.
Judith Browne Dianis of Advancement Project speaking in front of the U.S. Supreme Court
Post-Shelby, states like North Carolina, Wisconsin, Pennsylvania, Texas and Virginia sought to redraw district lines in ways that made it more difficult for voters of color to elect candidates of their choice. Just two days ago – on the 5th Anniversary of the Shelby ruling – the Supreme Court in Abbott v. Perez gave further latitude to Texas – and other states – to continue to rig the district lines against voters of color, all in the name of politics.
Under the current administration, the Justice Department has retreated on its legal oversight of discriminatory voting laws – in some cases, even switching sides. They have sought to fan the flames of ignorance, fear, hate and racism by lying about voters of color, portraying Latinos and Black people as those who are not entitled to the franchise, but deserve investigations in “urban areas” and phony integrity panels instead.
The last five years have shown that we cannot trust that discriminatory voting measures can be effectively challenged after the fact. A lost vote can never be reclaimed, and the collective legacy of these lost votes leaves a lasting scar on democracy for generations.
These attacks – in states around the country and at the highest levels of our federal government – show that Congress must take affirmative steps to protect the right to vote. The full protections of the Voting Rights Act are necessary to ensure that the promises of the Reconstruction Amendments are kept. The last five years have shown that we cannot trust that discriminatory voting measures can be effectively challenged after the fact. A lost vote can never be reclaimed, and the collective legacy of these lost votes leaves a lasting scar on democracy for generations.
More than half a century after hard fought civil rights struggles lead to the passage of the Voting Rights Act, the urgency of that movement today could not be clearer. Communities of color are resisting all-out assaults on our lives, dignity and freedom on multiple fronts. Black and Brown people are fighting back against police brutality in our streets and in our schools. Our immigrant neighbors are profiled, criminalized, thrown in cages and kicked out of the country as if they were less than human. Amid these attacks on our humanity and our voice, we are fighting the same battle that the freedom fighters led during the civil rights movement. The attack on the right to vote is as vigorous as it has been in generations – at stake is our very voice, and indeed our very dignity.
The Shelby decision emboldened these attacks on the right to vote – assaults designed to curtail the growing political power of voters of color as they emerge into the new American majority. Today nearly a third of eligible voters are voters of color, and those numbers are only growing – producing a backlash against the growing American electorate. Sometimes the courts see through the ruse, but in the post-Shelby world, the protections may be short lived. In our lawsuit against North Carolina’s post-Shelby monster voter suppression law, the 4th Circuit Court of Appeals said that North Carolina’s voter suppression law targeted African American voters “with almost surgical precision.” Yet, earlier this month, North Carolina Republicans introduced a measure in support of a state constitutional amendment to require a photo ID to vote – a measure that could land on the November 2018 ballot. Yesterday, [Tuesday June 26] the North Carolina state house of representatives voted to put the amendment on the ballot in November – now it goes to the state senate. Riding the wave of this administration’s anti-voter rhetoric, lawmakers feel they can pass the measure in spite of its documented impact on low income voters and voters of color.
We must enshrine an explicit right to vote at the federal level. Legal protection for voting is needed now more than ever, both to safeguard hard-fought progress and to defeat persistent and ongoing attempts to narrow the franchise.
The lack of an explicit right to vote in the U.S. Constitution is inextricably tied to the history of racism in America. This legacy has taken different forms, but it remains alive today. For example, today more than 6 million people cannot vote due to a felony conviction in their past. More than three-fourths of these disenfranchised people are not incarcerated. They live, work, and pay taxes in our communities. Thirteen percent of African Americans cannot vote due to a felony conviction – seven times higher than the general population. And in states like Florida, Kentucky, Tennessee and Virginia, one in five Black people can’t vote due to a felony conviction. That is why we are supporting the efforts of the Florida Rights Restoration Coalition to restore voting rights to the state’s 1.6 million citizens – 10 percent of the state’s population – who cannot vote due to a criminal record. And in Louisiana, we are litigating on behalf of Voice of the Experienced because one in 33 residents cannot vote due to a criminal record. We hope to restore voting rights for 71,000 parolees and probationers who live and work in their communities but cannot vote. And to places like Missouri where in the wake of the Movement for Black Lives, catalyzed in the state after the killing of Mike Brown, lawmakers have worked to restrict access to the ballot by passing a restrictive photo I.D. requirement. Like the current effort in North Carolina, after the courts found Missouri’s photo ID would infringe on the state’s fundamental right to vote, lawmakers lobbied to change the constitution itself, weakening the right to vote to allow the photo ID law. Now, with our partners, we are in court again, challenging the law.
We know most Americans believe that elections should be free and fair. People want to be able to have a just and common-sense process to elect our leaders. Instead of being a partner in that work, the current administration fans unfounded fears of “voter fraud” in order to demonize the growing American majority. These efforts to delegitimize voters of color are paving the way for further restrictions on voting. Without the pre-clearance provisions in the Voting Rights Act that were gutted by the Shelby ruling, and without explicit protection in the U.S. Constitution, voting still largely remains the province of state and local election authorities, where it is more vulnerable to attack by politicians and courts. The Supreme Court’s gutting of the Voting Rights Act in Shelby – and the ensuing decisions in its wake – makes challenging these laws’ discriminatory effects more difficult.
As we brace for more assaults on the voting rights of people of color in the days ahead, and the need for affirmative protections for the right to vote is more urgent than ever. Thank you Congresswoman Sewell for modeling what action can look like by reintroducing the Voting Rights Advancement Act. And of course, thank you Congressman Butterfield for your leadership and for shining a light on voting rights. It is time for Congress to act by reinstating the pre-clearance provisions of the Voting Rights Act. Moreover, we must enshrine an explicit right to vote at the federal level. The right to vote protects all other rights. Legal protection for voting is needed now more than ever, both to safeguard hard-fought progress and to defeat persistent and ongoing attempts to narrow the franchise. If we find ourselves clamoring to include it in the Constitution in 2018, it is not by accident, but by design.