The Battle To Protect The Vote

The right to vote is the cornerstone of American democracy. The free exercise of the franchise is essential to the preservation and protection of all other constitutional rights. It serves as a check on America’s political leaders and as a source of power for citizens. In this way, the vote is a tangible measure both of what we are as a nation and of what we aspire to be.

The question that every American should ask is: How can we collectively encourage more people to participate in the political process?

Instead of embracing this important principle of inclusion, however, too many states have recently sought to make it harder for Americans to vote in the 2014 elections through concerted legislative efforts or policy decisions. Today, the United States is experiencing an assault on voting rights that is historic in its scope and in its intensity.

Following the U.S. Supreme Court’s devastating 2013 decision in Shelby County, Alabama v. Holder —which invalidated core protections in the Voting Rights Act, or VRA—15 states launched attacks on voting rights in advance of the 2014 midterm elections. This report estimates the impact of this assault on the ability of communities of color to participate in the 2014 midterm elections in five of those states—Texas, Alabama, North Carolina, Virginia, and Georgia—each of which has seen a significant population increase in communities of color.

While the precise impact of strict voting laws on the results of the 2014 midterm elections is still unknown, it is clear that the number of people predicted to face increased difficulties in voting during this election either approaches or exceeds the margins of victory for competitive statewide races.

Moreover, consistent with a recent report from the U.S. Government Accountability Office, or GAO, finding that photo ID laws lower voter turnout, especially among voters of color, this report highlights the decreases in turnout from previous midterm elections in the three states—Texas, Alabama, and Virginia—that implemented such laws for the first time in 2014.

Thus, the available evidence from this election season strongly suggests that the new restrictions on the right to vote disfranchised large numbers of voters.

These concerted voter suppression efforts are a direct response to the country’s changing demographics and to the lack of federal oversight resulting from the Shelby County decision in jurisdictions with a virulent history of discrimination. The 2010 Census indicates that people of color will comprise a majority of the nation’s population by 2043. At the same time, voter participation by people of color reached record levels in the 2008 and 2012 presidential elections. These changing demographics and rates of voter participation foreshadow an emerging political landscape in which people of color will play a critical role—even in places where they will not make up a majority of the electorate. It is precisely because of this increased electoral strength that communities of color continue to face a backlash that is more intense than it has been in generations.

These changes also only came about in the aftermath of Shelby County v. Holder, the shameful June 2013 decision in which a narrow majority of justices on the U.S. Supreme Court struck down Section 4(b) of the VRA, thereby suspending Section 5 of the law. Known as the crown jewel of civil rights laws, Sections 4(b) and 5 together served as the nation’s discrimination checkpoint. Section 4(b) contained a coverage provision that identified states with a history of discrimination in voting, including Texas, Alabama, North Carolina, Virginia, and Georgia, among others. Section 5 required these covered states to submit all voting changes for a process known as “preclearance” before they went into effect.

Preclearance required the states discussed here—and certain other jurisdictions— to receive confirmation from a federal court in Washington, D.C., or the U.S. Department of Justice that any new proposed voting laws were nondiscriminatory before those laws could be implemented. For 50 years, Section 5 provided critical protection for millions of voters of color—African Americans, Latinos, Asian Americans, American Indians, and Alaskan Natives. However, by striking down Section 4(b), the Supreme Court immobilized the Section 5 preclearance process. The Shelby County decision is akin to letting someone keep their car but taking away the keys. The Court’s decision has left millions of Americans of color even more vulnerable to racial discrimination in places where discrimination has been the most persistent and adaptive.

Similar to the racially discriminatory Jim Crow laws of the early 20th century, these modern day iterations of past laws—which include strict photo identification laws, reductions to early voting and same-day registration, and limits on third-party registration—are direct responses to the nation’s recent demographic shift and changes to the legal landscape. Each of the five states analyzed in this report was formerly covered by Sections 4(b) and 5, experienced a relative increase in its minority population, and employed discriminatory voting laws in 2014.

This report focuses on the impact of voting restrictions in Texas, Alabama, North Carolina, Virginia, and Georgia, listed in order of the number of negatively affected voters, for the following reasons:

• Citizens of color in each of these states participated in the past two presidential elections in record numbers and comprised a larger share of the eligible voting population than ever before.
• The data provided by the 2010 Census demonstrate that communities of color in these states—and eligible voters within those populations—are expanding rapidly and are on track to continue this accelerated growth for the foreseeable future.
• Each state introduced at least one new restrictive voting law or voter suppression policy that applied in the 2014 elections and disproportionately affected people of color
• Four of these five states—with the exception of North Carolina—experienced sharp decreases in voter turnout from the 2010 midterm elections, likely due, at least in part, to these laws making it harder to vote in 2014.

To combat these challenges, this report proposes that Americans who value and seek to safeguard the fundamental right to vote for all citizens take the following actions:

• Urge lawmakers to repeal the various laws that suppress the vote
• Urge Congress to immediately restore Section 4(b) of the Voting Rights Act by passing the Voting Rights Amendment Act
• Closely monitor and report voter suppression to the appropriate authorities and groups, including the NAACP Legal Defense Fund
• Engage in massive voter registration as a potential antidote to massive voter suppression

The lawmakers and elected official who are passing laws and adopting polices to thwart the fundamental right to vote are organized. To effectively counter these attacks, those who value democracy must also launch an organized response to protect and advance the most sacred democratic right—the right to vote.

Effect of voter suppression in five states

This section examines five states—Texas, Alabama, North Carolina, Virginia, and Georgia— where new restrictive voting laws were in effect in 2014. In each state, the authors compare the estimated number of “affected” voters—in other words, the number of voters who may have been unable to vote as a direct result of a new law—with the margin of victory for competitive statewide elections held in 2014. In states that featured both contested senatorial and gubernatorial races, the authors cite the average margin of victory in each individual race.

While it is too early to identify exactly how many voters were unable to vote as a result of these restrictive new laws in 2014, the estimates presented here are based on court documents and analyses conducted by the state governments implementing these changes in the law. In addition, this report includes stories about real people who encountered barriers to voting on Election Day 2014.

Texas

Method: Strict photo identification law

Estimated number of eligible voters negatively affected: 1,200,000 people

Margin of victory in 2014 gubernatorial race: 957,973 votes

Margin of victory in 2014 Senate race: 1,260,816 votes

Average margin of victory in 2014 Senate and gubernatorial races: 1,107,561 votes

Percent change in the African American population between 2000 and 2010: 27.1 percent

Percent change in the Latino population between 2000 and 2010: 41.8 percent

In Texas, one of the most restrictive photo ID laws in the country was in effect during the 2014 midterm elections.

The Texas legislature passed a strict photo ID law in May 2011 that requires voters to show one of seven forms of identification in order to cast a ballot. In March 2012, the U.S. Department of Justice blocked the law under the Voting Rights Act, determining that hundreds of thousands of registered voters lacked the proper identification and that Hispanic-surnamed voters made up a disproportionate share of those who lacked the required photo ID. Before the 2012 elections, a panel of three federal court judges also rejected Texas’ law under Section 5 of the VRA, declaring it the most restrictive voter ID law in the country.

That decision was in place until June 25, 2013. That day, just hours after the Supreme Court released the decision in Shelby County v. Holder, Texas Attorney General Greg Abbott announced, “the State’s voter ID law will take effect immediately.”

Shortly after its implementation, the NAACP Legal Defense Fund, its co-counsel at the law firm WilmerHale, and other allies challenged Texas’ discriminatory law under Section 2 of the VRA and the U.S. Constitution. During a two-week trial, U.S. District Court Judge Nelva Gonzales Ramos heard the testimony of nearly 40 witnesses, including Sammie Louise Bates. Ms. Bates testified that Texas’ photo ID requires her to purchase a $42 birth certificate from her native Mississippi before she can vote. She said that because she lives on a modest fixed income of just a few hundred dollars per month, she had “to put the $42 where it would do the most good. We couldn’t eat the birth certificate.”

At trial, plaintiffs’ experts established that, incredibly, Ms. Bates was only one of more than 600,000 registered voters and 1.2 million eligible voters in Texas who did not have the ID that the state required.

On October 9, 2014, Judge Ramos issued a comprehensive, 147-page ruling finding that Texas’ law “was imposed with an unconstitutional discriminatory purpose,” violates the VRA, and constitutes an unconstitutional poll tax. No court had ever before found that a photo ID law was enacted with a discriminatory purpose. One week later, however, the Supreme Court permitted the law to go into effect temporarily for the 2014 elections while the case faces appeal. This means that African American and Latino voters participated in an election subject to a law that a federal district court found intentionally discriminates against them.

While the Supreme Court’s failure to block the intentionally discriminatory law that deprived up to 1 million citizens of their right to vote in the midterm election, the 2014 Texas races for U.S. Senate and governor were decided by an average of only 1,107,561 votes. Moreover, projected voter turnout in Texas was just 33.6 percent in 2014, down from 37.5 percent in 2010, which may be partly attributable to the photo ID requirement.

Imani Clark, an African American college student at Prairie View A&M University and a NAACP Legal Defense Fund client in the Texas photo ID case, was prevented from voting in Texas’ midterm election. Incredibly, while Texas’ photo ID law does not permit Ms. Clark to use her student ID to vote, as she has in past elections, Texas does allow a person to show a concealed handgun license to vote.

On Election Day, the NAACP Legal Defense Fund met other African American college students who had heard about Judge Ramos’ decision and came to the polling place to vote with student IDs. Unfortunately, because of the Supreme Court’s last-minute decision to allow the law to go into effect—ostensibly based on a desire to prevent voter confusion —many other students similar to Ms. Clark were turned away for lack of sufficient ID.

Ms. Clark and these students were not alone.

According to The New York Times, initial reports from election officials in eight of Texas’ 254 counties showed that more than 500 provisional ballots cast by voters who lacked the required photo ID went uncounted following the 2014 election. In Houston’s Harris County, 229 ballots went uncounted; 99 ballots were discarded in Dallas County, as were 27 ballots in San Antonio’s Bexar County. While determining the total number of provisional ballots left uncounted due to Texas’ ID law indicates part of the law’s negative impact on the 2014 elections, many voters without acceptable photo ID likely did not show up at the polls. This means their disenfranchisement was unrecorded.

Alabama

Method: Strict photo identification law

Estimated number of registered voters negatively affected: 250,000 to 500,000 people

Margin of victory in 2014 gubernatorial race: 320,139 votes

Percent change in the African American population between 2000 and 2010: 9.6 percent

Percent change in the Latino population between 2000 and 2010: 144.8 percent

In Alabama, a strict photo ID law was in effect for the first time during the 2014 midterm elections. Although Alabama already required identification at the polls, the new law passed in 2011 specifies that the identification must include a photograph. This photo ID law limits the types of identification allowed and invalidates formerly permissible forms of identification such as utility bills, Social Security cards, and birth certificates, among others.

Alabama was covered under Section 5 of the Voting Rights Act, which required state officials to submit this more rigorous photo ID requirement for preclearance under Section 5 before enforcing it. But Alabama never did so. Instead, Alabama’s attorney general and secretary of state avoided this legal question by waiting until the day after the U.S. Supreme Court’s Shelby County v. Holder decision to announce that the new photo ID law would go into effect for the 2014 elections.

A recent analysis conducted by Alabama Secretary of State Jim Bennett and the Alabama Department of Public Safety revealed that roughly 500,000 registered voters in Alabama lacked a driver’s license or state non-driver ID—the most common forms of photo ID of those acceptable for voting. That number represents 20 percent of registered voters in Alabama. Secretary Bennett estimates that half of those 500,000 adults own one of the other acceptable forms of photo ID under the state law, but even that assessment brings the total number of affected individuals to 250,000 people.

For instance, the NAACP Legal Defense Fund determined in September that at least 282 ballots in the state’s June 3 primary election were not counted because of this new law.46 Additionally, about 40 percent of those discarded ballots came from counties with majority African American populations, while election officials in two Alabama counties with overwhelmingly white populations illegally waived the photo ID requirement for absentee voters.

Alabama’s experience with implementing this law also exemplifies the difficulty of providing a nominally free voter ID card, which is often cited as a catchall solution to voter suppression. The Alabama secretary of state’s office sent out mobile ID-issuing units to 92 sites in all 67 Alabama counties to provide free photo ID cards. But only 5,070 people had received an ID through the program as of November 2014, according to Alabama Deputy Secretary of State Emily Marsal. In most instances, the secretary of state’s office chose to set up temporary mobile units during limited weekday hours that are inconvenient for hourly wage workers and at locations that are inaccessible to people who do not own a vehicle.

Furthermore, Secretary of State Bennett has repeatedly interpreted the voter ID law narrowly by limiting the effectiveness of the law’s fail-safe provision for voters who lack photo ID and prohibiting the use of photo ID issued by public housing authorities.

Unfortunately, in the November 2014 election, this last decision that prohibited public housing IDs disfranchised a 92-year-old great-grandmother because, although she had a public housing ID, she lacked the types of photo ID required under Alabama’s law. Other voters, including a woman who possessed no forms of photo ID, were also turned away or forced to cast a provisional ballot.

Indeed, after the 2014 elections, the NAACP Legal Defense Fund learned that, once again, hundreds of ballots went uncounted because of the photo ID law. In Birmingham’s Jefferson County, the most populous county in Alabama, 119 of the 151 provisional absentee ballots cast there were not counted because voters did not submit the required ID. In Choctaw County, 21 of the 22 absentee ballots cast also were discarded due to a lack of photo ID. Alabama was the only state with a strict photo ID law for mail-in absentee voters in effect for the 2014 elections. While many more provisional ballots cast by people without photo ID in Alabama’s 67 counties were also likely left uncounted, most people affected by the law probably did not cast a ballot, leaving little hard evidence of their disfranchisement.

Thus, even with the lower estimate of 250,000 people without the required photo IDs, this law may have had a significant effect: The margin of victory for the gubernatorial race in Alabama was just 320,139 votes.

Moreover, the projected voter participation rate in the 2014 midterm elections in Alabama was just 41 percent—the first time the rate has dipped below 50 percent since 1986.

North Carolina

Method: Cut early voting from 17 days to 10 days

Estimated number of registered voters negatively affected: 200,000 people

Margin of victory in 2014 Senate race: 48,511 votes

Percent change in the African American population between 2000 and 2010: 21.1 percent

Percent change in the Latino population between 2000 and 2010: 111.1 percent

In August 2013, just two months after Shelby County v. Holder ended the enforcement of Section 5 of the Voting Rights Act, the North Carolina legislature passed sweeping voting legislation that cut early voting from 17 days to 10 days, eliminated same-day registration, and requires voters to present government-issued photo identification at the polls—this latter requirement will take effect in 2016.

Specifically, this report looks only at the early-voting provision of the law, which took effect for the first time in 2014. In the 2010 midterm election, 200,000 North Carolinians voted during the seven days of early voting that were eliminated under the new law. Although these voters have other opportunities to go to the polls and vote, the law creates an unnecessary burden by eliminating those extra days.

Moreover, the law has a clear discriminatory impact. In the 2012 general election, 70.49 percent of African American voters cast their ballot during the early-voting period, compared with 51.87 percent of white voters. A common feature of early voting in North Carolina is a voter turnout effort known as “Souls to the Polls,” a tradition in which African American churches provide transportation to earlyvoting locations after Sunday services. The new law greatly curtailed this voting opportunity by limiting the number of early voting Sundays from two to one.

Importantly, the 2014 Senate race in North Carolina was decided by only 48,511 votes.

Virginia

Method: Strict photo identification law

Estimated number of registered voters negatively affected: 198,902 people

Margin of victory in 2014 Senate race: 16,727 votes

Percent change in the African American population between 2000 and 2010: 14.7 percent

Percent change in the Latino population between 2000 and 2010: 91.7 percent

The Virginia legislature passed a strict voter ID law in March 2013, which requires voters to show a valid Virginia driver’s license, passport, Virginia college or university photo ID card, or other government-issued photo ID in order to cast a ballot.

Because of the state’s history of racial discrimination, the law was covered under Section 5 of the Voting Rights Act, requiring the state to seek approval from the U.S. Department of Justice or a federal court for the new photo ID law before it could go into effect. However, the very day that the Shelby County v. Holder decision came down from the Supreme Court, then-Governor Bob McDonnell’s office stated that the law would be able to move forward without federal preclearance. Virginia’s new strict voter ID law took effect on July 1, 2014, and was in place for the first time during the 2014 midterm elections.

The Virginia Department of Elections reported in September that 198,902 Virginia voters lacked driver’s licenses, the most common form of identification in the state. Voters were able to obtain a free photo ID card if they could prove their eligibility at their local registrar’s office. However, as of late September, a spokeswoman for the Virginia Department of Elections said that, as reported by ThinkProgress, “just 1,083 such photo IDs have thus far been issued, a tiny fraction of the potential total.” Moreover, a political science professor at the University of Mary Washington stated that the law would have a disproportionate impact on low-income voters and African American voters, who are generally less likely to have state-issued identification.

As one example of the impact of this new law, a 93-year-old Virginia woman named Virginia Whittaker who had been voting for 72 years was turned away during the 2014 midterm elections. Her driver’s license had expired in 2012, and preparations for an upcoming surgery prevented her from securing other state-issued identification.

The likely suppression of low-income and African American voters may have had a significant impact on elections in Virginia, particularly considering that the 2014 Senate race was decided by just 16,727 votes.

Moreover, projected voter turnout in Virginia was just 36.7 percent—down from 44 percent in 2006. This revelation comes on the heels of report from the U.S. Government Accountability Office, Congress’ research arm, attributing declines in voter turnout in the 2012 election—2 percent in Kansas and between 2.2 percent and 3.2 percent in Tennessee, with greater decreases among younger and African American voters—to voter ID laws.

Georgia

Method: Secretary of state failed to add newly registered voters to the rolls

Estimated number of eligible voters negatively affected: 40,000 people

Margin of victory in 2014 gubernatorial race: 202,636 votes

Margin of victory in 2014 Senate race: 200,939 votes

Average margin of victory in 2014 Senate and gubernatorial races: 201,788 votes

Percent change in the African American population between 2000 and 2010: 27.6 percent

Percent change in the Latino population between 2000 and 2010: 96.1 percent

Georgia legislators have made numerous attempts to suppress the vote in recent years, including passing of one of the nation’s first photo ID laws. The most recent attack on the right to vote took an especially pernicious form: delayed processing of newly registered voters by Georgia Secretary of State Brian Kemp.

This year, Georgia was home to a number of voter registration drives aimed at making registration accessible and available in communities of color. One nonpartisan organization, the New Georgia Project, collected voter registration forms for more than 86,000 voters alone, and parallel efforts resulted in the total registration of between 130,000 and 150,000 new voters, many of them people of color.9However, the New Georgia Project compared its registration database to the state’s public database in late August and found that about 40,000 of its new registrants were not on the state’s voting rolls.

Secretary Kemp’s failure to add newly registered voters to the rolls within a reasonable time frame appears to have caused confusion among voters. Diamond Walton, an 18-year-old freshman at Columbus State University, registered to vote in August but only received her official state registration card in late October.97 As Georgia NAACP President Francys Johnson told ThinkProgress, this kind of delay and confusion “may discourage people from going to out to vote [sic], and those who do go won’t know where to go, and they’ll be shuffled around from polling place to polling place.”

Confusion around voter registration forms could have caused a drop in turnout: The projected voter participation rate in Georgia was 34 percent in 2014, down from 40 percent in 2010. Moreover, while 40,000 to 50,000 people may have been negatively affected by Secretary Kemp’s actions, the average margin of victory for the 2014 gubernatorial and Senate races was 201,788 votes.

The antidote to massive voter suppression

The historic participation by communities of color in the past several election cycles, including the 2014 midterms, provides an important glimpse into the possibility of sustained and meaningful political participation that reflects the country’s true and increasing diversity.

At the same time, the recent surge of restrictive and exclusionary voting initiatives is poised to derail the complete realization of this promise. The efforts represent yet another chapter in the struggle to expand American voting rights and the backlash engendered by such efforts.

The job of defending and advancing the civil rights of African Americans, people of color generally, and other vulnerable groups remains urgent and requires action.

Those who value democracy cannot stand on the sidelines and accept this assault on voting rights. Here is what must be done:

1) Support legislative solutions on the state and federal levels

First and foremost, there is an urgent need to repeal restrictive voting laws wherever they exist and support policies that make it easier to vote.

Indeed, Congress is uniquely empowered to respond to the Supreme Court’s ruling in Shelby County v. Holder by developing a new coverage provision to restore the Section 5 preclearance process that was lost when Section 4(b) of the Voting Rights Act was struck down. Affected communities—and all allies who care about civil rights—must continue to reach out to their congressional representatives to urge them to pass the bipartisan Voting Rights Amendment Act, which would enact a new Section 4(b) to bring states with a history of discrimination back under the Section 5 preclearance regime. Sections 4(b) and 5 did and could again block many of these restrictive laws and policies before their implementation.

There is also an urgent need for a grassroots, community response, which requires groups and individuals to:

2) Monitor and report voter suppression in individual communities

Without the key provision of the VRA that required certain states to report all voting changes before implementation, local advocates and activists are now the best eyes and ears on the ground. Concerned citizens should report potentially discriminatory voting changes to organizations such as the NAACP Legal Defense Fund. These changes could include moving polling places from one location to another, changing the date of an election, reducing early-voting periods, and changing the method of electing candidates, to name a few.

3) Engage in massive voter registration

As argued in “True South: Unleashing Democracy in the Black Belt 50 Years After Freedom Summer,” the best antidote to massive voter suppression is massive voter registration. Each of the five states discussed here has a substantial number of eligible but unregistered voters of color. The analysis in “True South” showed that registering just 60 percent of voters of color in each state studied here could shift the political calculus, helping voters of color elect candidates who share their concerns and are likely to protect the right to vote.

Conclusion

It is too early to fully analyze the final impact of these new restrictive voting laws, but the raw numbers and anecdotal evidence paint a picture that justifies advocates’ continued concerns about voter ID laws.

Here is what is known at this juncture: Far from being measured reactions to discernible problems, these recent voter suppression efforts are rooted in the worst traditions of America’s contested history of democracy. Throughout the nation’s history, the expansion of opportunity and participation has often been met by reactionary measures intended to cut back on hard-won progress.

The various actions undertaken in 2014 by the five states highlighted here and others are just the latest chapter in that age-old story. As the struggle to ensure that all Americans can participate equally in the political process continues, voting rights advocates and everyday citizens must remain vigilant and do all they can to safeguard against efforts to constrict democracy in state, local, and federal elections and beyond. Our democracy requires it.