Last week, a federal appeals court struck down several major provisions of North Carolina’s omnibus voter suppression law, finding that state lawmakers intentionally designed the law to increase its discriminatory impact on black voters. It was an important victory for voting rights, as North Carolina’s law was widely viewed as the most aggressive voter suppression law in the nation and now it is largely neutered.
The court’s decision, however, was also an imperfect victory for voting rights because the court declined to impose a meaningful sanction on the state. Much of the voter suppression law is gone, but the state remains free to carry out its business without any more supervision than it faced before this law was enacted. The lawmakers who voted to make it harder for African-Americans to cast a ballot have little incentive to shy away from future efforts to enact more voter suppression laws in the future.
It doesn’t have to end this way, however. Federal law permits states that engage in racial voting discrimination to be subjected to continuing federal supervision of their voting laws. And an unusual source on the Supreme Court has suggested that such a remedy may be appropriate in a case such as this one.
Preclearance
To explain, prior to 2013, several states or parts of states were required to “preclear” any new voting laws with federal officials in Washington, D.C. to ensure that those new laws did not harm voters of color. That regime ground to a halt, however, with the Supreme Court’s 5–4 decision in Shelby County v. Holder, which struck down a provision of the Voting Rights Act establishing which jurisdictions were subject to preclearance.
Shelby County, however did not strike down another provision of the Voting Rights Act, Section 3, which permits new jurisdictions to be placed under the preclearance regime if a court determines that “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred.” Thus, if a state engages in intentional race discrimination when it enacts new voting laws, that state can be required to submit future voting laws to federal officials for review before those laws are allowed to take effect.
Justice Anthony Kennedy was one of the five conservatives who formed the majority in Shelby County. Yet, as University of Florida law professor Michael McDonald points out on Twitter (in response to my own skepticism about whether Kennedy could be convinced to vote against the North Carolina voter suppression law), Kennedy asked some questions at oral argument in Shelby County which suggest that he might be responsive to arguments in support of voting rights should the North Carolina case come before his Court:
in Shelby County oral arguments Justice Kennedy asked if Sec 2 could replace Sec 5, so I think there is a 5-3 majority
— Michael McDonald (@ElectProject) August 2, 2016
Section 5 of the Voting Rights Act is the provision dealing with preclearance. Section 2 is a separate provision which allows lawsuits to be brought challenging laws that allegedly engage in racial voting discrimination. At oral arguments in Shelby County, Kennedy twice asked whether Section 2 lawsuits provide enough protection for voting rights that the stronger preclearance remedy is not needed. Yet he also went further than that, noting that “the government can very easily bring a Section 2 suit and as part of that ask for bail-in under Section 3.”
That’s a lot of section numbers, so if you are unsure what exactly Kennedy is getting at here, allow me to explain. Shelby County struck down the provision of the Voting Rights Act which provides that certain jurisdictions are automatically subject to preclearance, and Kennedy supported that outcome. He appears to have supported that outcome, however, because he felt that other provisions of the Voting Rights Act were enough to protect voting rights. And one of the two provisions that he viewed as an adequate substitute for the old preclearance regime is Section 3, which allows jurisdictions like North Carolina that engage in intentional race discrimination to be newly subjected to preclearance — even after the old regime was struck down.
A Test of Seriousness
The North Carolina case gives Kennedy an opportunity to show whether he was serious when he suggested that Section 3 would provide a backstop against states that still engage in voting discrimination. As the appeals court explained in its opinion, the North Carolina legislature “requested data on the use, by race, of a number of voting practices” and then appears to have used this data as a guide in enacting “legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.” There have been more egregious examples of racial voting discrimination in American history, but few, if any, like this law since the sun set upon Jim Crow.
Even if Kennedy is not serious about halting voter suppression — which is likely considering his vote in Shelby County and the fact that he fairly consistently sides with the Court’s conservative bloc in voting cases — Kennedy’s vote may not be needed to impose a serious sanction on North Carolina for its foray into race discrimination. There is, after all, a vacancy on the Supreme Court.
If this vacancy is filled with a new member of the Court’s liberal bloc, then Kennedy will cease to be the Emperor of the Constitution and Protector of American Law. He’ll just be another dissenting vote.
To be sure, as University of Michigan law professor Sam Bagenstos notes, the Court’s liberal bloc may be reluctant to invoke Section 3 against North Carolina, considering that the lower court declined to do so:
Overriding both lower courts on a discretionary decision? Not unless Thurgood Marshall himself is the new justice.
— Sam Bagenstos (@sbagen) August 2, 2016
This kind of deference to lower court judges is normally a commendable instinct in Supreme Court justices, but there’s also a good reason for the Supreme Court to be more aggressive in protecting voting rights than they might be in other areas of the law. As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, vote suppressors have historically been some of the law’s great innovators — rapidly finding new ways to block access to the polls much faster than courts can strike down the old ways.
When the Supreme Court said Texas could not disenfranchise voters directly, [Texas] tried to do so indirectly. When that failed, they let party delegates do it for them. And when this tactic failed nearly ten years later, white racists could fall back on poll taxes, or literacy tests, or any of a myriad of other devices intended to keep black voters from the polls. . . . As President Johnson told the nation after Selma, “the Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent.” And should they succeed in speaking to a registrar, a black voter “may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application.”
Some registrars only permitted voters to register in secret locations that were only disclosed to white people. Others demanded that African-Americans answer impossible questions like “how many bubbles are in a bar of soap?” Still others refused to register black voters who couldn’t produce multiple white character witnesses “personally known to the registrar.”
This is why the preclearance regime was created in the first place, because lawmakers and government officials seeking to disenfranchise voters are clever and they have a great deal of motivation to find new methods of doing so — after all, their jobs may depend on it. So there needs to be a way of cutting off all of these creative efforts to suppress the vote before they take effect in the first place. And the North Carolina law presents the Supreme Court with an unusually strong case for cracking down on voter suppression.
Lawmakers like the ones behind the North Carolina law, in other words, will continue to engage in voter suppression until a higher power steps in to prevent them. So long as Shelby County remains good law, the only meaningful candidate to be that higher power is courts wielding their authority under Section 3.