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Black voters in South face obstacles, loss of protection

Freddie Allen

Despite major advances to access to the ballot box nearly 50 years after the passage of Voting Rights Act of 1965, blacks, living primarily in the South and Southwest, continued to face challenges at the ballot box, according to a National Commission on Voting Rights report.

“Though protection under the Voting Rights Act has produced significant gains, African Americans are continually subjected to new threats to their full enfranchisement,” stated the report. “The ongoing protection of the Voting Rights Act is vital to the inclusion of this community.”

Last summer, the United States Supreme Court invalidated the Section 4 coverage formula in the Voting Rights Act that required jurisdictions with a demonstrated history of voter discrimination to “pre-clear” any changes in voting laws with the Justice Department of a federal court. The ruling effectively neutered Section 5 of the VRA.

“Four states formerly covered by Section 5 of the VRA — Texas, Louisiana, South Carolina and Georgia — rank as the worst offenders,” according to the report. The study found that, when it comes to voting discrimination, Texas was the worst state in the country, “including multiple state-level violations.”

Last August, Attorney General Eric Holder filed a lawsuit against Texas over a restrictive voter ID law that went into effect after the Shelby decision, and also sought to support groups who took the Lone Star State to court over redistricting policies.

Following the Shelby v. Holder ruling, civil rights lawyers have increasingly used Section 2 of the VRA to defend voters’ rights across the nation, but the report acknowledged the limitations of Section 2 lawsuits.

“While Section 2 provides important and considerable safeguards against discrimination, it does not provide the same level of protection that Section 5 afforded minority voters,” stated the report. “Section 2 litigation is often complex and can be slow, time-consuming, and expensive,” especially for poor, minority voters with access to limited resources.

Under Section 5, covered jurisdictions had to prove that new laws didn’t create added hardships for poor and minority voters. Section 2 reverses that burden of proof, placing it squarely on the shoulders of the voters and civil rights lawyers.

Since the Shelby v. Holder decision, new, controversial voting laws have been passed, forcing civil rights and Justice Department lawyers to expend resources battling over whether those laws hurt thousands of voters.

The report covered a number of forms of voter discrimination, including minority vote dilution, voter challenges and intimidation, felony disenfranchisement, voter purges and restrictive photo ID requirements.

“The findings show that contrary to the court’s assertion voting discrimination is still rampant and that states and localities previously covered by Section 4 and Section 5, the [Voting Rights Act] provisions struck down by the court, continue to implement voting laws and procedures that disproportionately affect African Americans, Latinos, Asian Americans and Native Americans voters,” said Barbara Arnwine, president of the National Lawyers Committee for Civil Rights Under Law.

From 1995–2013, redistricting changes made up 58 of 113 Section 5 preclearance denials, the report said.

“Redistricting plans that dilute minority voting strength typically submerge minority voters in overpopulated districts, divide minority population concentrations to prevent them from comprising the majority of a fairly-drawn district (“fragmentation” or “cracking”), or unnecessarily over concentrate them in a minimal number of districts (“packing”),” stated the report.

Robert Kengle, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, said that redistricting is the reallocation of political power and there is always a temptation to make minority voters the pawns in that process.

“Whether you’re talking about disputes between political parties or disputes between incumbents or one faction or another it’s tempting to dilute minority voter strength to achieve your political goals,” said Kengle.

Kengle added: “Sometimes it’s just as simple as saying, ‘We don’t want minority voters electing candidates,’ and the district lines are drawn to prevent that.”

Jurisdictions that pass plans are usually more discreet today than they were in the 1960s or 1970s, but when you look at the results, sometimes the results are very similar, observed Kengle.

Leon Russell, the vice chairman of the NAACP Board of Directors called redistricting ‘a partisan tool.’

“For legislatures that are dominated by one particular party, it’s that party that usually draws those lines to protect its political power,” said Russell. “If you can control who votes and where they vote, you can control the power.”

Following the Shelby decision, the Justice Department made severe cuts to its federal observer program.

“The federal observer program provided an important deterrence against voter discrimination with 10,702 observers deployed from 1995–2012,” the report said.

Kengle said that federal election observers serve multiple purposes and one of the most important purposes doesn’t result in litigation. Election officials often request federal election observers from the Justice Department to calm tense situations when there have been concerns about claims of voter intimidation or other misconduct at the polls.

Election observers monitor the polls “not so much with an eye toward bringing a lawsuit, but rather allowing people to vote without concerns for intimidation,” said Kengle, adding that, in recent years, observers have documented compliance with the language minority provisions of the Voting Rights Act.

Federal observers also keep an eye on the voting process on the ground and take notes in a way that attorneys or other election observers are not able to do, said Kengle, who worked in the Voting Section at the Justice Department for about 20 years and supervised election coverage.

Losing that monitoring power will be a huge loss for minority voters, said Kengle.

“Blacks are conscious of the history that produced the Voting Rights Act of 1965 and all the sacrifices that people made so that act could become law,” said Arnwine.

Arnwine disagreed with the majority decision in the Supreme Court Shelby County case that concluded that the rise in black voter turnout and the number of minority elected officials signaled that the Section 4 pre-clearance formula in the VRA was outdated and that voter disenfranchisement was largely a problem of the past.

Arnwine sees it differently, noting that increased black voter turnout doesn’t mean that it’s easier to vote, “it means that people are more determined to vote.”

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