The Justice Department will file a lawsuit today challenging four parts of North Carolina’s recently enacted voter suppression law, invoking what remains of the Voting Rights Act since the five Republicans on the Supreme Court killed a key prong of the law last June. DOJ’s lawsuit will allege that four parts of the voter suppression law — North Carolina’s decision to cut early voting days, to require a photo ID to vote, to end same-day voter registration for early voters and to make it harder for voters who show up at the wrong polling place to vote — all justify placing the state under federal supervision to prevent it from disenfranchising voters.
Prior to the Supreme Court’s decision last June, many parts of the country that had historically engaged in race-based voter suppression — including much of North Carolina — were required to “preclear” any changes to their voting laws with the Justice Department or with a federal court in D.C. Almost immediately after the Court’s five Republicans tossed out this longstanding provision, lawmakers in the covered states began pushing voter suppression plans. Texas waited all of two hours to announce its plans to make it harder for many people of color to vote or to have their vote matter.
Yet, while the GOP justices’ decision did eliminate the existing formula for determining which parts of the country are subject to federal supervision, it did not disturb another part of the Voting Rights Act that could potentially bring many areas back under the federal umbrella. Under Section 3 of the Voting Rights Act, a state can be brought under the preclearance regime if a court finds that “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision” — thus states with a recent record of race-based voter suppression can be subject to federal supervision. DOJ’s lawsuit will allege that North Carolina’s voter suppression law fits this bill.
There is no question that North Carolina’s law will impact minority voters, in addition to other left-leaning constituencies. Take voter ID, for example. Voter ID’s defenders claim that these laws are necessary to prevent voter fraud at the polls, but such fraud is virtually non-existent. What voter ID does do is disproportionately disenfranchise many low-income voters, student voters and voters of color. Similarly, cuts to early voting limit longstanding get out the vote efforts in African American communities, in addition to preventing lower income voters who tend to have less job flexibility on election day from voting.
The challenge facing DOJ, however, is that it is probably not enough for DOJ to show that North Carolina’s law disenfranchises voters, or even that it intentionally disenfranchises some voters. Although there is very little precedent governing lawsuits brought under Section 3 of the Voting Rights Act, most informed observers believe that Section 3 requires DOJ to prove that North Carolina lawmakers enacted its voter suppression law with the intention of disenfranchising voters because of their race. Proving discriminatory intent, as opposed to discriminatory effects, is notoriously difficult.
In July, DOJ announced a similar lawsuit against the state of Texas, noting a recent federal court decision finding that Texas drew its legislative maps with discriminatory racial intent. Among other things, this lawsuit determined that Texas replaced “many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district’s] Anglo citizens.” This will make it easy for DOJ to show intent to discriminate on the basis of race in Texas, but the Justice Department faces a different problem with that lawsuit. The Texas lawsuit will appeal to the notoriously conservative Fifth Circuit, a court whose former chief judge is currently under investigation due to allegations of racism. DOJ could have the strongest possible case against Texas, but it is still likely to face a skeptical panel of Fifth Circuit judges.
The North Carolina case, by contrast, will appeal to the Fourth Circuit, which is currently dominated by Clinton and Obama appointees.
Ultimately, however, any decision bringing Texas or North Carolina back under federal supervision runs the risk of reaching the Supreme Court’s bench. Unless a member of the conservative bloc retires before the case reaches that level, that means that the same five justices who gutted the Voting Rights Act will have the opportunity to decide whether their work should be undone in two key states.