Today marks the first Presidential election since the Supreme Court struck down two key elements of the Voting Rights Act in Shelby County v. Holder. The Voting Rights Act — which was developed in the 1960s to protect the sanctity of electoral privileges — included a coverage formula that subjected states and counties with a history of voter disenfranchisement to federal oversight. In addition to Section 4(b)’s coverage formula, Section 5 stipulated that states and counties under federal auspices were required to receive federal preclearance to any proposed changes.
Although the Voting Rights Act was created to protect citizens’ constitutional rights to “equal protection of the law” and from having their rights “denied or abridged,” the provisions of the Voting Rights Act were applied to states that demonstrated voter discrimination based on 1960s and 70s standards. In Shelby v. Holder, Shelby County, Alabama, argued that the historical basis for the uneven application constituted outdated oversight in violation of the 10th Amendment.
In 2013, the Supreme Court declared the coverage formula and pre-clearance requirements outdated remedies, and held that the uneven oversight was unconstitutional. Thanks to Shelby v. Holder, states are in control over their own electoral affairs, adopting legislation without justification.
Perhaps, ironically, although the Court’s decision suggested that states did the time for their crimes and that it was time to move forward, we are witnessing a dissolution of our progressive values through the implementation of vituperative voting policies.
In its report, “Why Is It So Hard to Vote in America?,” the Brennan Center parsed the ways that the Supreme Court’s decision in Shelby v. Holder could affect the 2016 presidential election, and identified the truly ostensible nature of voter disenfranchisement.
The Brennan Center study juxtaposed subjective measures of electoral freedom with current conditions to highlight the disparity. By polling 1006 Americans over the age of 18, researcher Craig Newmark showed the dichotomy between our perception of freedom, and the movements to underpin it.
Since 2010, 21 states have adopted restrictive regulations — which can manifest in the form of Voter Identification laws, closed primaries, and limited early voting — to suppress voter turnout. The draconian developments largely affect minority populations, particularly Hispanics and African-Americans. As a result, the many successful efforts to mobilize the Latino vote in the 2016 election are mired by the fact that 8 out of 12 states with the largest Hispanic populations have adopted restrictive measures to complicate the procedures.
The Brennan Center found that, in total, 16 million American voters will be affected by voter suppression efforts; the National Association of Latino Elected and Appointed Officers (NALEO), determined that 875,000 of disenfranchised voters will be of Latino/a descent.
Today, we are witnessing the greatest setback to voting rights in 50 years, as millions of Americans are actively deprived of their constitutional right to vote.
In GOP vice presidential nominee Mike Pence’s home state of Indiana, State Police are investigating two alleged instances of voter fraud. The first claim accuses the Democratic Party of disseminating false information about polling places in a deliberate attempt to mislead voters. Although the State Democratic Party has attributed the erroneous information to technical error, the State Police are also investigating another Democratic group for claiming that voters can cast their ballot by text.
In Virginia — which boasts lenient open carry laws — a “Trump Election Observer” was spotted standing outside a polling station with a gun. The unidentified man, who donned a Trump t-shirt and a legal gun permit, was reported for using electoral coercion to discourage votes for “Crooked Hillary.” Despite claims of voter intimidation and threat to child safety, Virginian authorities determined that the man’s actions were not “illegal” per se because his cordiality paired with his respect for both Virginia’s open carrying laws and the 40-feet-no-canvassing zone did not constitute a legal violation.
In Maine, Republican Governor, Paul LePage, stands accused of disseminating fake fliers on the Bates College Campus in an attempt at voter discouragement. The signs from the Bates Election Legal Advisory featured false information that claimed voter eligibility was contingent on driver’s license and vehicle payments. In addition to discouraging voters with the prospects of exorbitant fines for non-compliance, the Governor proclaimed that students could only vote upon establishing permanent residency in Maine. The Governor’s erroneous application of the law was compounded by threats to pursue violations with every extent of the law.
In North Carolina, GOP officials stand accused of active minority voter suppression. Although the Fourth Circuit Court of Appeals overturned parts of the HB-589 law that allowed race-based voter information requests, banned early voting, and implemented strict voter ID laws, the GOP found legal loopholes to actively suppress the minority vote. Republican controlled Board of Elections conformed to the minimum legal requirements by opening one polling place for early voting. The “one-stop-shop” for early voting resulted in long-lines, and many voters without the ability to stand in line were left behind. In addition to the HB-589 legal loophole, North Carolina legislatures in three counties invalidated thousands of ballots based on an antediluvian law that allows individual voters to challenge one another based on returned mail. It is no surprise that these areas are home to the state’s largest African-American communities, but it is quite shocking that the GOP officials have actively bragged about their successful voter suppression efforts.
In addition to individual state voter suppression efforts, the Department of Justice is currently responding to numerous claims of voter coercion and suppression from the Donald Trump campaign.
In five states — including swing states Ohio, and Pennsylvania — Presidential candidate, Donald Trump, and his supporters are facing federal lawsuits for alleged coercion and minority voter suppression. In addition to citing inflammatory statements from various “Trump rallies,” the plaintiffs corroborate their case by mentioning the campaign’s commission of the vigilante group “Trump Election Observers.”
In the wake of Shelby v. Holder, the Department of Justice was left virtually powerless to condemn state judicial decisions that ruled in Trump’s favor. Acknowledging the complaints, however, the Department of Justice responded to accusations against the Trump campaign by deploying over 500 election monitors to protect polling places in 28 states.
The Department of Justice deployment constitutes an interesting compromise between the “outdated” provisions of the Voting Rights Act, and the current demand for oversight. The Supreme Court’s decision in Shelby v. Holder suggested that the states had reached an equalizing point, which justified the judicial drawback.
In Shelby v. Holder, the states claimed that the unnecessary compromised the delicate balance between federal and state powers in the 10th Amendment. Given the Court’s decision in Shelby County, it appears that the federal intervention constitutes a violation of federal and state separation; however, the state’s vituperation and flagrant violation of the 14th and 15th Amendments constitutes federal involvement vis-a-vis the Necessary and Proper Clause.
The federal intervention and growing demand for national voting laws creates an interesting legal question for Congress, which must adjudicate on the balance between federal and state. The outcome, however, is dependent on the results of today’s election, which features elections for 469 congressional seats.
If the states-rights Republicans win, it is very unlikely that federal pre-clearance will pass; however, if the Democrats win, we could be on the brink of federal action.
IMAGE: Reed Saxon/Associated Press