White Rage

by Carol Anderson

  One of the most onerous if innocuous-sounding changes is the requirement for government-issued photo IDs in order to vote. In Texas, that makes more than one million student IDs ineligible while concealed weapons permits are valid. Missouri congressman Emanuel Cleaver could only say in disgust, “You have to be a very mean-spirited and ideologically warped person to believe that this is right and that this is fair.” The Brennan Center for Justice estimates that as “many as 12 percent of eligible voters nationwide may not have government-issued photo ID,” and that “percentage is likely even higher for students, seniors and people of color.”32 In fact, a joint report by the NAACP and the NAACP Legal Defense and Educational Fund emphasized the “alarming” impact of the law. The ID requirement would eliminate more than six million African American voters and nearly three million Latinos. And while that is roughly 25 percent of black and 16 percent of Latino voters, “only 8% of whites are without a current government-issued photo ID.”33

  Nor is the obvious solution of securing an ID that simple. Georgia’s laws, for instance, are instructive about the economic impact of proving one’s right to vote. The state requires three separate categories of documentation to secure a government-issued photo ID. The first is proof of citizenship, which overwhelmingly requires either a birth certificate or a passport, but the cost of the latter (which for the working poor is roughly 10 percent of one month’s take-home pay) puts that out of reach for many.34 Up to 13 million American citizens do not have ready access to citizenship documents, the Brennan Center reports, and this phenomenon is highly correlated with minorities, the poor, and the elderly.35

  Second, Georgia requires documentation of the prospective voter’s social security number, which is either the card itself or a W-2, the latter of which requires a job. In 2011, black unemployment in Georgia was 16.4 percent. In the capital city of Atlanta, nearly one fourth of all African Americans were unemployed, compared with just 3.1 percent of whites.36 Access to a W-2, then, bears strong and fairly obvious racial implications.

  Finally, Georgia requires for proof of residence two addressed items of mail, generally, a bank statement and a utility bill. More than 20 percent of African Americans, as compared with 3 percent of whites, do not have a bank account.37 Due to the changes in the economy and the need to pool limited resources, almost 6 percent of all families in the United States are in multigenerational households. African Americans, those younger than thirty-five years old, as well as Asians and Latinos, are overly represented in this type of living arrangement.38 Regardless of the number of adults in a home, only one name appears on the utility bills, making it difficult for the others to prove they actually live there.

  Wisconsin took another tack when Republican governor Scott Walker championed a bill requiring a government-issued photo ID to vote, and then proceeded to close the Department of Motor Vehicles in areas with Democratic voters while simultaneously extending the hours in Republican strongholds. And “this in a state in which half of blacks and Hispanics are estimated to lack a driver’s license and a quarter of its DMV offices are open less than one day per month.” In Texas, there are no ID-issuing offices in fully a third of its counties.39 Alabama, while enacting a voter ID law in 2011, subsequently shut down DMV offices in its Black Belt counties, the very ones that overwhelmingly voted for Obama in the 2012 election. Facing a national uproar after announcing the closures, Governor Robert Bentley backtracked, but ever so slightly. Alabama agreed to allow the DMV offices in the Black Belt counties to be open at least one day a month.40

  The Republicans in Pennsylvania pushed through a rigorous voter ID law and then failed to follow through on a pledge to provide free IDs for those who couldn’t afford them. Nor did Pennsylvania establish enough mobile units to get to residents, particularly those in rural areas. Issuing a stinging rebuke, state judge Bernard McGinley declared that since Pennsylvania required the IDs, it now needed to provide the means for the state’s citizens to obtain what had essentially become the passport to the vote. The judge noted the scarcity of mobile units and the fact that many of the license offices were open only a few days a week, which had created lengthy wait times and virtual inaccessibility and, therefore, placed “an unreasonable burden on people trying to exercise their right to vote.”41

  In another ploy toward disfranchisement, efforts were made to eliminate or greatly curtail early voting, essential for those unable to leave work on a Tuesday to vote. This has created significant difficulties for people who have jobs where one must punch the clock, take no more than an hour for lunch, and travel miles away from where one resides, and where one’s polling place is therefore located. On Election Day, moreover, the lines at the voting precincts in key neighborhoods have been notoriously long. Six- to twelve-hour waits in line were reported in the 2008 election, and, as a recent Brennan Center study found, predominately African American and Latino precincts experienced longer wait times because the government allocated fewer operable machines and staff to those polling places.42 Early voting had provided one important and demonstrably successful solution—and that was the problem.

  Once Florida governor Rick Scott took office in 2011, he and a group of GOP consultants discerned the pathways African Americans used to exercise the right to vote and promptly set out to shut those routes down. In Atwater-esque language, Scott explained that this was about protecting the integrity of the ballot box and democracy by making it more difficult to commit “voter fraud.” Scott not only slashed early voting from two weeks to eight days; he also eliminated the opportunity to vote the Sunday immediately before Election Day. This was a calculated hit. Statewide in 2008, blacks made up more than one third of those who voted on the preceding Sunday. And, in Palm Beach County, more than 60 percent of those voting early were African Americans, many of whom had boarded buses right after church to cast their ballots. Eliminating that pathway to the polls was high on the priority hit list, one Republican remarked: “I know that the cutting out of the Sunday before Election Day was one of their targets only because that’s a big day when the black churches organize themselves,” he said, giving lie to Scott’s insistence that this was about eliminating “voter fraud.”43

  Another device in the disfranchisement tool kit was a tactic that Rehnquist had used years earlier in Arizona: sending out mass mailings to minority neighborhoods, waiting for the “return to sender” cards to come back, then checking those names against public voting rolls in order to demand a purge of those names. Florida has been one of the most aggressive states to adopt this procedure, using records from the Department of Motor Vehicles to identify and scrub 180,000 names from the voter rolls. More important, it began this purge just months before the upcoming 2012 presidential election, limiting the opportunity for individuals to verify the reliability of the redacted list. Voters showed up at the polls only to find that their names were nowhere to be found. They had been disfranchised. Indeed, after the election, Florida’s secretary of state identified only 85 names (out of the original 180,000) that should have been removed from the list.44

  Such voter-roll purges were fully supported by the updated version of Rehnquist’s Army of Challengers. The modern incarnation, True the Vote, was founded in Texas—born of the Tea Party—and defines itself as a citizen-based group committed to “free and fair elections for all Americans.”45 Using a flawed database and even Facebook, True the Vote members pore over public lists of registered voters, identify those whose names or addresses don’t match up perfectly with their own records, and then set out to challenge those marked on their list as frauds to cast a ballot. They often target the multigenerational households that are more common in African American, Hispanic, and Asian families, arguing that an address with a number of adults who have registered to vote has to be bogus. True the Vote poll watchers have been conspicuously present in black precincts on Election Day, taking notes, ruffling feathers, challenging voters, clogging the lines, causing delays, frustrating voters who then leave without ca
sting a ballot, ignoring warnings from election officials, and looking for any evidence of supposed ACORN-like fraud.46

  Barack Obama’s election was a catalyst for a level of voter suppression activities that had not been seen so clearly or disturbingly in decades. Nowhere was this more apparent than in the Supreme Court’s 2013 gutting of the Voting Rights Act. The case began in 2008. Shelby County, Alabama commissioners, though required by Section 5 preclearance of the VRA to receive approval from the U.S. Department of Justice before making any changes in election procedures, voting qualifications, or district boundaries, annexed several subdivisions to the city of Calera, and then, in direct violation of the VRA, redrew the district boundaries of the lone black councilman, Ernest Montgomery, reducing the percentage of African Americans in his precinct from 69 to 29 percent. He lost the election. Attorneys from the NAACP Legal Defense Fund alerted the Department of Justice, which then required Shelby County to hold another election using the original district boundaries. The commissioners balked. “Federal oversight was no longer needed,” they asserted. “We’ve made progress.”47

  In 2010, Shelby County filed suit in federal district court, charging that Section 5 of the Voting Rights Act was unconstitutional because Congress did not have the authority to reauthorize the act in 2006. The district court disagreed, as did the U.S. Court of Appeals in 2011. The judges were unequivocal:

  Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments, which entrust Congress with ensuring that the right to vote—surely among the most important guarantees of political liberty in the Constitution—is not abridged on account of race. In this context, we owe much deference to the considered judgment of the People’s elected representatives.48

  The U.S. Supreme Court looked at Shelby County’s clear violation of the law and, in a 5–4 decision penned by Chief Justice John Roberts, came down squarely on the side of the commissioners. In Shelby County v. Holder (2013), Roberts and four other justices treated the rationale for the Voting Rights Act as now obsolete. They conceded the past terror and the pernicious laws that had resulted in millions of African Americans being disfranchised. But it was a new day in the South, Roberts wrote confidently. “Largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African Americans attained political office in record numbers.” Although that success should have led the court to conclude that, without the protections of the VRA, those changes could easily be erased, that success instead led Roberts and four of his colleagues, including the lone black justice on the court, Clarence Thomas, to veer in the opposite direction, asserting that because the law has worked so well, and because other states aren’t held to the same scrutiny, the act, as reauthorized by Congress in 2006, was out of sync with modern times. With that, the justices kept Section 5 but declared unconstitutional Section 4 of the act, which provides the conditions under which the Department of Justice may place a jurisdiction under the oversight stipulated by the statute.49

  How the court arrived at that decision is a testament to twisted facts and ignored evidence. Roberts, for example, contended that the VRA placed burdens on jurisdictions because of past misdeeds that could not be justified by “current needs.” The so-called burdens he alluded to, however, were borne only by those jurisdictions with a long, well-documented history of discrimination and a systematic pattern, after the initial passage of the Voting Rights Act in 1965, of trying to craft laws that violated the basic right to vote for all citizens. Locales that required Department of Justice scrutiny had a nearly fifty-year history after the VRA of continued attempts to discriminate. In fact, the act contains a “bail out” provision, wherein the federal government no longer needs to monitor what a jurisdiction does; indeed, the bar to achieve “bail out” status is not all that high, requiring a jurisdiction to abide by the law for an appreciable length of time, following which the extra scrutiny of the Voting Rights Act no longer applies. Numerous counties in Virginia, as well as North Carolina’s Wake County, Georgia’s Sandy Springs, Texas’s North Austin, and Alabama’s Pinson, having met the standard, have been thus “bailed out.” The fact that the majority of other locales in the old Confederacy, in the heart of what is now GOP country, have not says more about the tenuousness of the right to vote than it does about the rigors of the Voting Rights Act.50

  Moreover, the court’s depiction of the Voting Rights Act as unduly discriminatory against the South and static is wrong on both counts. First, over the years the Department of Justice has had to “bail in” other districts throughout the United States because of racially discriminatory laws and policies that have blocked equal access to the ballot box. This includes eight counties in Arizona, one in Idaho, four jurisdictions in Alaska, two in California, three counties in New York, and one in Wyoming, as well as towns in Connecticut, Massachusetts, Maine, and New Hampshire.51 Discrimination has never been just a Southern phenomenon, and the VRA has recognized that. In short, the vigorous use of bail-in and bail-out provisions utterly undercut Roberts’s contention that the law is an ancient artifact that somehow does not address “current needs.”

  Moreover, the court’s overriding concern that the law is somehow anti-South, while sounding strangely similar to John Mitchell’s argument in 1970, willfully overlooks the region’s continuing attempts to silence black voters. Discrimination did not stop in 1965, nor in 1975, nor in 2005. Since 2011, nine out of the twelve states of the old Confederacy, according to the NAACP, have adopted or proposed two or more requirements to tighten access to the polls, such as placing restrictions on voter registration drives and requiring a government-issued photo ID to vote.52 The only thing keeping the wolves at bay during that time was the Voting Rights Act’s preclearance provision. The Supreme Court’s ruling in Shelby County v. Holder, however, turned the dogs loose.

  Immediately following the ruling, Arizona, Arkansas, Florida, Iowa, Kansas, Mississippi, North Carolina, Texas, and Virginia all passed a compendium of voter suppression laws. By the following year, right before the 2014 midterm elections, thirteen additional states had passed voter restriction statutes. All were under the guise of protecting the “integrity” of the ballot box, but all had the intent of limiting and frustrating voting by African Americans and, now, Latinos too.53 The only recourse available was to take these states to court and demonstrate the discriminatory intent and effect of their electoral policies. This is exactly how Richard Nixon and his attorney general had hoped to gut the VRA in 1970. The long, litigious delays meant that, unlike the days of a robust and fully functioning Voting Rights Act, which prevented discrimination before it could do damage, the courts would now come in only after the fact.

  Texas is a case in point. Almost the moment Shelby County v. Holder was announced, the Republican legislature put through a highly restrictive voter ID law, S.B. 14. A phalanx of civil rights organizations, including the NAACP and the League of United Latin American Citizens, minority voters, and Mexican American legislative and Hispanic judges associations, immediately sued the state of Texas. During the two-week trial in the fall of 2014, the attorney general of Texas, Greg Abbott, argued that the law was necessary to stop and prevent rampant voter-identification fraud. Yet, out of ten million votes, he could produce only two documented cases of voter impersonation. On the other hand, it became clear that nearly six hundred thousand Texans, mainly poor, black, and Hispanic, didn’t have the newly required IDs and often faced financial and bureaucratic obstacles in obtaining them. Thus, in September 2014, in a stinging dressing-down of the state, district court judge Nelva Gonzales Ramos ruled that Texas’s voter-ID law “creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.” Texas, she emphasized, had levied “an unconstitutional poll tax” on its citizens.54


  Ramos’s ruling, which declared that Texas had deliberately created discriminatory voting requirements, was a trip wire to reinstate the Voting Rights Act’s Section 5 preclearance statute in Texas. The state, therefore, intended to fight the decision. The first order of business, though, was to seek immediately a judicial delay to allow the voter ID law to remain in place during the upcoming midterm election. Chaos would reign at the polls, argued Texas attorney general Abbott before the Fifth Circuit Court of Appeals, were the law changed this close to an election. He also assured the court that keeping the voter ID law in place would not “substantially injure” the plaintiffs.55

  On October 14, 2014, the Fifth Circuit judges agreed and granted Texas’s request to allow a deliberately discriminatory law to operate during the all-important midterm election. As the judges saw it, “This is not a run-of-the-mill case” and Ramos’s ruling “substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts.”56

  The U.S. Department of Justice, civil rights groups, and individual voters then joined together and raced to the U.S. Supreme Court, seeking to overturn the Fifth Circuit’s ruling. While the U.S. Supreme Court, led by Justice Antonin Scalia, ruled in favor of the state without any comment on the merits of S.B. 14, Justice Ruth Bader Ginsburg’s dissent was incisive, tearing away at the supposed chaos that might occur in the election if the discredited voter-ID law was suddenly jettisoned. There “is little risk,” she wrote, of disrupting the election process. All Texas needed to do was “reinstate the voter identification process it employed for ten years (from 2003 to 2013) and in five federal general elections.” After all, she observed, the new requirements for voter ID had only been used in three state elections where the voter turnout ranged from 1.48 percent to 9.98 percent. While those Texas primaries were relatively low stakes, Ginsburg noted, the November 2014 election “would be the very first federal general election conducted” under the new voter-ID regime. And that was the problem. The Supreme Court, she wrote, could not allow a “purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters” to be used in a federal election. But that is precisely what the U.S. Supreme Court did.57