Supreme Court Schedules Challenge to 1965 Voting Rights Act During Black History Month

by Steven Woodruff

I have never shown an ID to vote, ever. The photo is from a Texas polling location.

Later this February the Supreme Court of the United States will be hearing a case challenging the right of the Federal Government to continue to block some states from changing voting practices without oversight from the Justice Department. The case, Shelby County vs Holder, was brought by Shelby County in Alabama. It argues that Section 5 of the 1965 Voting Rights Act, which mandates  Department of Justice oversight in changes to existing voting practices in nine states, is out dated and unfairly infringes on states’ rights. Recently a three judge federal court in Mobile and The United States District Court for the District of Columbia both sided with the  Department of Justice in preventing the town of Evergreen, Alabama from adopting new voter lists based on a review of utility records.  For the updated list, the town clerk had removed as many as 800 people, some of them regular voters for more than a decade. The case has been pushed forward by Donors Trust which backs conservative causes, and the Project on Fair Representation, which challenges race-based legislation. Both are voter suppression organizations.

Shelby County is 90 percent white and economically well off. Evergreen is poor and composed of predominantly African Americans. In addition, recent redistricting in Evergreen attempted to reorganize the town’s five districts so that the 65 percent majority African American voter could prevail in only two of them. The changes would, in effect, create a majority representation for the minority white vote on the Evergreen City Council. On the face of things, it would seem that Shelby County’s odds on appeal are poor. If anything, the tactics look like a textbook play on voter disenfranchisement from the 60’s. Their case makes the point that data for the recent Congressional renewal (2006) of the Section 5 provisions dates from the 70’s and is outdated. Shelby County is banking on the fact that more balanced voting statistics show that the state, overall, has changed. Mr. Obama has now been elected twice in national elections. They argue that’s evidence enough that times have changed and that the Federal Government should stop picking on Southerners.

But the deep racial divides that characterized the 2012 election cycle speak for themselves. And the problem is not limited to the South. I personally spoke with more than a thousand voters during six months working on the Obama campaign as a phone bank coordinator. There were many who were outspoken in their bitter antagonism toward Mr. Obama. The worst conversations usually boiled down to some version of “that Muslim n____r bastard is going to take my money and give it to somebody else”.  I encountered replays of that conversation in Pennsylvania, Colorado, Iowa, Wisconsin, Virginia Nevada, and Ohio, where most people would have assumed that dedicated, inflammatory, racist cant was much more of an anomaly.  In a recent New York Times  article (2/118/2013) Adam Liptak spoke with civil rights activist Jerome Gray, a black man in Evergreen, who said that during the 2008 election he watched as whites, riding in the beds of pickup trucks, photographed black voters at the polls—not much of an endorsement for a changed universe.

The voter disenfranchisement movement is still picking up steam even now that the 2012 election cycle is over. Obama had won big in 2008 by harnessing a broad base of voters. That base included women, first time voters, students, Hispanics, African Americans and those on the margins of the American Dream. It was clear that Obama was going to win them again along with other traditional Democratic demographic populations. Students, the poor and African Americans turned out to be the easiest targets and the voting restrictions largely focused on them. Those potentially affected would be in the hundreds of thousands.  Nine GOP states including Florida, Ohio and Pennsylvania all had passed restrictive voting regulations, third party registration limitations, and new ID rules by the fall of the 2012 under the notion that voter fraud was rampant.  One attempt by the Republican Minnesota Legislature in 2011 sought to deny a valid U.S. passport as a form of voter identification. It was vetoed by the Democratic Party Governor, Mark Dayton.  That legislation was reintroduced as an amendment on the 2012 state ballot and was eventually defeated.

In 2009 Catherine Engelbrecht, with the help of Texas Tea party support, founded True the Vote. The organization envisions itself as a front line response to runaway voter fraud and was an outgrowth of the King Street Patriots , a Tea Party fringe organization based in Harris County. The county has over two million residents. Working backward from data available on Harris County, Texas, she reasoned that because Harris County had so few poll workers covering voting activity that the county was ripe for fraud and so she went looking for it. Emboldened by the recent scandals involving Acorn, Engelbrecht dug into voting records and came up with nearly twenty thousand recent voter registration forms that she felt were problematic. The primary concern was single addresses with multiple registrants. But it was unclear how many of those registrants were actually ineligible to vote.  In many cases the organization depended on minor signature or driver’s license anomalies, misspellings, absent middle initials, incomplete information, and simple mistakes to disqualify registration forms. They identified up to nineteen thousand problematic forms among recently registered voters in 2009. Harris County, which includes Houston, is the country’s fifth largest metro district. It has many well settled GOP and Democratic districts. Many of the Democratic districts are heavily African American. It was never made clear how fraud on this scale was supposed to work. Was there an army of impostor voters casting ballots at the polls, or clearing houses filing absentee ballots via mail? None of those questions was ever answered.  Finally, no legal action was taken by the Harris County Attorney who stated that the office had “found no significant valid complaint on the issue of voter fraud”.

Voting Rights protest in Mississippi 1962

Voting Rights protest in Mississippi 1962

True The Vote trains workers to examine voter rolls and report problems to local voting boards. They developed the organization as a portable formula for tracking voter fraud. It now operates in thirty states. In the fall of 2012 the New York Times ran a story on founder  Catherine Engelbrecht and True the Vote.  In that story, commenting on her reasons for starting True The Vote, she said, “….. in 2008, I don’t know, something clicked, I saw our country headed in a direction that, for whatever reason — it didn’t hit me until 2008 — this really threatens the future of our children.”  The story largely discredited the organization and many of its facts, including claims that buses in San Diego and Wisconsin were seen offloading presumably fraudulent voters at polling stations. No photos, videos, license plate numbers or hard information from poll workers were made available to substantiate any of the claims. Their tactic has been consistently to over represent the size of voter fraud and to support sweeping reforms with legislative policies at the state level to disqualify voters by shortening early voting options, eliminating voting on Sunday, or by limiting the use of certain usually acceptable ID documents. Where the problems in Harris County pointed to far fewer than twenty thousand possible cases, the legislation in Pennsylvania, Ohio and Florida and now Virginia, threatens to pull the voting rug  out from underneath hundreds of thousands of potential legitimate voters.


 True The Vote is something of a paper tiger. Their web presence, with its racist tilt, preaches to the choir.  A quick survey of those commenting on their Facebook page yields the usual quotient of Obama haters, Tea Party activists, linguistically challenged hacks, and wrapped-in-the-flag patriots from the American fringe. I had a brief back and forth with them just after the Times article was published.  I posted the Times story to their Facebook page and within an hour it was promptly removed. Engelbrecht declined to respond via a letter to the editor. They would certainly have printed it had she done so.  It seemed as if she did not really believe in defending her position, or that it would hold up  under scrutiny beyond the confines of the echo chamber. At one point I commented on one of their posts, stating that Texas had had a very long history with recent voter suppression. Texas is one of the nine primary offenders listed in the original 1965 Voting Rights Act. The page administrator wrote back to say that was not the case, so I responded by posting information on a half dozen different cases, some of which were filed by the NAACP all of which were all well documented. They covered cases from the 70s to the present and were directed primarily at actions violating the voting rights of African Americans.  At that point I was blocked from posting.  It was clear that a real dialogue wasn’t in the cards.

Section 5 Voting Rights Act Jurisdictions

Section 5 Voting Rights Act Jurisdictions

For the moment it is only the preclearance clause of the Voting Rights Act that is under scrutiny. The law as a whole still applies to all states and any voting restriction irregularities will be eventually heard by the courts but eliminating the preclearance clause could open a flood of court cases that would have to be heard one at a time.  The District Court of Appeals noted in its decision that since 1980 that 81 percent of the cases covered by the Voting Rights Act have occurred in Section 5 jurisdictions. It is obvious that the restrictions are aimed at minority voters and it is exactly that voting group which the original law seeks to protect.  The rise of the new GOP has given a new will to conservative groups to influence elections by challenging not only minority voters but also, the young, and senior citizens.  Dismantling the Section 5 provision is a step in that direction.

Chief Justice Roberts and others have argued that the law is an outdated relic for another era. In a 2009 ruling Roberts said, “In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today”.  But in ruling against the Voting Rights Act he would be overlooking substantial reasons to keep Section 5 intact. Justice Thomas was the lone dissenter in a recent Supreme Court ruling concerning a Texas municipality.  He said he would have struck down Section 5 as unconstitutional. In Thomas’ words, “The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains”. Tell that to Jerome Gray in Shelby County, where voter intimidation from the back of a pickup truck has not yet gone out of fashion.


(The case from the DISTRICT OF COLUMBIA CIRCUIT COURT of APPEALS$file/11-5256-1374370.pdf

The Department of Justice on Section 5 of the Voting Rights Act of 1965:

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