Your Basic Needs: Food, Shelter and The TRUTH
The Persistent Racist Accusations of the NC NAACP and its Continued Attempts to Frustrate a Voter ID Law in North Carolina
Petitioner Shelby County, in the covered jurisdiction of Alabama, sued the Attorney General in Federal District Court in Washington, D. C., seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional, as well as a permanent injunction against their enforcement. The District Court upheld the Act, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing §5 and continuing §4(b)'s coverage formula. The D. C. Circuit affirmed. After surveying the evidence in the record, that court accepted Congress's conclusion that §2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that §5 was therefore still necessary, and that the coverage formula continued to pass constitutional muster.
OPINION & REASONING: The majority opinion was delivered by Chief Justice John Roberts joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. The Court held that Section 4(b) of the Voting Rights Act is unconstitutional, that its formula can no longer be used as a basis for subjecting states and political subdivisions to preclearance. The majority concluded that Section 4(b) exceeded Congress's power to enforce the 14th and 15th Amendments, reasoning that the coverage formula conflicts with the constitutional principles of federalism and "equal sovereignty of the states" because the disparate treatment of the states is "based on 40 year-old facts having no logical relationship to the present day" and thus is not responsive to current needs. The Court expressed that Congress cannot subject a state to preclearance based simply on past discrimination. The opinion reads:
In Northwest Austin, this Court noted that the Voting Rights Act "imposes current burdens and must be justified by current needs" and concluded that "a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." It is this basic principle of sovereignty and also this principle of "burden v. necessity" that guide the Court in addressing the issue presented - in reviewing the constitutionality of Sections 4 and 5 of the Voting Rights Act.
(1) State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including "the power to regulate elections." Gregory v. Ashcroft (1991). There is also a "fundamental principle of equal sovereignty" among the States, which is highly pertinent in assessing disparate treatment of States. See Northwest Austin. The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties). That is why, in 1966 (in Katzenbach), this Court described the Act as "stringent" and "potent." The Court nonetheless upheld the Act, concluding that such an "uncommon exercise of congressional power" could be justified by "exceptional conditions."
(2) In 1966, these departures were justified by the "blight of racial discrimination in voting" that had "infected the electoral process in parts of our country for nearly a century" [Katzenbach]. At the time, the coverage formula - the means of linking the exercise of the unprecedented authority with the problem that warranted it - made sense. The Act was limited to areas where Congress found "evidence of actual voting discrimination," and the covered jurisdictions shared two characteristics: "the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average." The Court explained that "tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters." [Ibid] The Court therefore concluded that "the coverage formula was rational in both practice and theory." [Ibid]
(3) Nearly 50 years later, things have changed dramatically. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. Largely because of the Voting Rights Act, "voter turnout and registration rates" in covered jurisdictions "now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels." See Northwest Austin. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5's restrictions or narrowed the scope of §4's coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision.
Later in the opinion, Chief Justice Roberts wrote:
A statute's "current burdens" must be justified by "current needs," and any "disparate geographic coverage" must be "sufficiently related to the problem that it targets." The coverage formula met that test in 1965, but no longer does so.
Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity..... The nation is no longer divided along racial lines, yet the Voting Rights Act continues to treat it as if it were.
..... the Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future.
In light of the outdated formula, in light of the fact that at one time (1966), the formula was "rational in both practice and theory" (preclearance was a "tailored remedy" under the circumstances) but that times have dramatically changed, and in light of the undue burden it placed on certain states in violation of the Tenth Amendment, the Supreme Court concluded that Section 4's formula is unconstitutional in light of current conditions.
Taking to heart the opinion's explanation that times have "changed dramatically," ask yourself a question: Referring to the black women I wrote about much earlier, who had attempted to vote at least three times on a single day in North Carolina, with the poll officials purposely not saying anything about it or turning her in - Does anyone think that such a thing could have ever happened in pre-Civil Rights era America? Does anyone even think such a thing could have happened in 1965? Absolutely not. That instance shows just how much times have changed and how far behind us we've put racial discrimination at the ballot box.
Again, note that Justice Roberts opted to strike down only the formula in Section 4 that determined which jurisdictions would be subject to the preclearance requirements. The Court declined to address the constitutionality of Section 5 (invoking the doctrine of "constitutional avoidance," which says that a federal court should refuse to rule on a constitutional issue if the case can be resolved on a non-constitutional basis), although it also was challenged by Shelby County, Alabama, thus leaving it in place for Congress, should it ever wish to enact an updated "formula." (Giving Congress the chance to address or update Section 5 was the "chance to resolve the issue on a non-constitutional basis").
As Justice Antonin Scalia said during oral arguments: "Congress reauthorized Section 5 (in 2006) not because the legislation was necessary, but because it constituted a 'racial entitlement' that Congress was unlikely to end."
The important thing to know is that as it stands now, Section 5 has been rendered useless by the decision in Shelby because the provision that gives it force (Section 4) has been struck down as unconstitutional. And because Section 5 is rendered useless, the Voting Rights Act no longer demands and requires federal court review and approval of any changes to North Carolina's voting laws. (Same for any other southern state previously identified by the law's "preclearance" provision)
D. Latest Draft of a NC Photo-Voter ID bill (S.824):
PART I: IMPLEMENTATION OF THE CONSTITUTIONAL REQUIREMENT REQUIRING PHOTOGRAPHIC IDENTIFICATION TO VOTE
SECTION 1.1(a) Article 17 of Chapter 163A of the General Statutes is amended by adding a new section to read:
"§ 163A-869.1. Voter Photo Identification Cards.
(a) The county board of elections shall, in accordance with this section, issue without charge voter photo identification cards upon request to registered voters. The voter photo identification cards shall contain a photograph of the voter and the registration number for that voter. The voter photo identification card shall be used for voting purposes only, and shall expire ten years from the date of issuance.
(b) The State Board shall make available to county board of elections the equipment necessary to print voter photo identification cards. The county board of elections shall operate and maintain the equipment necessary to print voter photo identification cards.
(c) County boards of elections shall maintain a secure database containing the photographs of registered voters taken for the purpose of issuing voter photo identification cards.
(d) The State Board shall adopt rules to ensure at a minimum, but not limited to, the following:
(1) A registered voter seeking to obtain a voter photo identification card shall provide the voter's date of birth and the last four digits of the voter's social security number.
(2) Voter photo identification cards shall be issued at any time, except during the time period between the end of the voter registration deadline for a primary or election as provided in G.S. 163A-865 and election day for each primary and election.
(3) If the registered voter loses or defaces the voter's photo identification card, the voter may obtain a duplicate card without charge from his or her county board of registration upon request in person, or by telephone, or mail.
(e) Ninety days prior to expiration, the county board of elections shall notify any voter issued a voter photographic identification card under this section of the impending expiration of the voter photographic identification card."
SECTION 1.2(a) Article 20 of Chapter 163A of the General Statutes is amended by adding a new section to read:
"§ 163A-1145.1. Requirement for Photo Identification to Vote in Person.
(a). Photo Identification Required to Vote. - When a voter presents to vote in person, the voter shall produce any of the following forms of identification that contain a photograph of the voter:
(1) Any of the following that is valid and unexpired, or has been expired for one year or less::
A North Carolina drivers license.
A special identification card for nonoperators issued under G.S. 20-37.7 or other form of non-temporary identification issued by the Division of Motor Vehicles of the Department of Transportation.
A United States passport.
A North Carolina voter photo identification card of the voter issued pursuant to G.S. 163A-869.1.
A valid and current tribal enrollment card issued by a federally recognized tribe.
A valid and current tribal enrollment card issued by a tribe recognized by this State under Chapter 71A of the General Statutes, provided that card meets all of the following criteria:
(i). Is issued in accordance with a process approved by the State Board that requires an application and proof of identity equivalent to the requirements for issuance of a special identification card by the Division of Motor Vehicles of the Department of Transportation.
(ii). Is signed by an elected official of the tribe.
A student identification card issued by a constituent institution of the University of North Carolina, a community college, as defined in G.S. 115D-2(2), or eligible private postsecondary institution as defined in G.S. 116-280(3), provided that card is issued in accordance with G.S. 163A-1145.2.
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OPINION & REASONING: The majority opinion was delivered by Chief Justice John Roberts joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. The Court held that Section 4(b) of the Voting Rights Act is unconstitutional, that its formula can no longer be used as a basis for subjecting states and political subdivisions to preclearance. The majority concluded that Section 4(b) exceeded Congress's power to enforce the 14th and 15th Amendments, reasoning that the coverage formula conflicts with the constitutional principles of federalism and "equal sovereignty of the states" because the disparate treatment of the states is "based on 40 year-old facts having no logical relationship to the present day" and thus is not responsive to current needs. The Court expressed that Congress cannot subject a state to preclearance based simply on past discrimination. The opinion reads:
In Northwest Austin, this Court noted that the Voting Rights Act "imposes current burdens and must be justified by current needs" and concluded that "a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." It is this basic principle of sovereignty and also this principle of "burden v. necessity" that guide the Court in addressing the issue presented - in reviewing the constitutionality of Sections 4 and 5 of the Voting Rights Act.
(1) State legislation may not contravene federal law. States retain broad autonomy, however, in structuring their governments and pursuing legislative objectives. Indeed, the Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including "the power to regulate elections." Gregory v. Ashcroft (1991). There is also a "fundamental principle of equal sovereignty" among the States, which is highly pertinent in assessing disparate treatment of States. See Northwest Austin. The Voting Rights Act sharply departs from these basic principles. It requires States to beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own. And despite the tradition of equal sovereignty, the Act applies to only nine States (and additional counties). That is why, in 1966 (in Katzenbach), this Court described the Act as "stringent" and "potent." The Court nonetheless upheld the Act, concluding that such an "uncommon exercise of congressional power" could be justified by "exceptional conditions."
(2) In 1966, these departures were justified by the "blight of racial discrimination in voting" that had "infected the electoral process in parts of our country for nearly a century" [Katzenbach]. At the time, the coverage formula - the means of linking the exercise of the unprecedented authority with the problem that warranted it - made sense. The Act was limited to areas where Congress found "evidence of actual voting discrimination," and the covered jurisdictions shared two characteristics: "the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average." The Court explained that "tests and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters." [Ibid] The Court therefore concluded that "the coverage formula was rational in both practice and theory." [Ibid]
(3) Nearly 50 years later, things have changed dramatically. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions. Largely because of the Voting Rights Act, "voter turnout and registration rates" in covered jurisdictions "now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels." See Northwest Austin. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5's restrictions or narrowed the scope of §4's coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger. Because §5 applies only to those jurisdictions singled out by §4, the Court turns to consider that provision.
Later in the opinion, Chief Justice Roberts wrote:
A statute's "current burdens" must be justified by "current needs," and any "disparate geographic coverage" must be "sufficiently related to the problem that it targets." The coverage formula met that test in 1965, but no longer does so.
Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity..... The nation is no longer divided along racial lines, yet the Voting Rights Act continues to treat it as if it were.
..... the Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future.
In light of the outdated formula, in light of the fact that at one time (1966), the formula was "rational in both practice and theory" (preclearance was a "tailored remedy" under the circumstances) but that times have dramatically changed, and in light of the undue burden it placed on certain states in violation of the Tenth Amendment, the Supreme Court concluded that Section 4's formula is unconstitutional in light of current conditions.
Taking to heart the opinion's explanation that times have "changed dramatically," ask yourself a question: Referring to the black women I wrote about much earlier, who had attempted to vote at least three times on a single day in North Carolina, with the poll officials purposely not saying anything about it or turning her in - Does anyone think that such a thing could have ever happened in pre-Civil Rights era America? Does anyone even think such a thing could have happened in 1965? Absolutely not. That instance shows just how much times have changed and how far behind us we've put racial discrimination at the ballot box.
Again, note that Justice Roberts opted to strike down only the formula in Section 4 that determined which jurisdictions would be subject to the preclearance requirements. The Court declined to address the constitutionality of Section 5 (invoking the doctrine of "constitutional avoidance," which says that a federal court should refuse to rule on a constitutional issue if the case can be resolved on a non-constitutional basis), although it also was challenged by Shelby County, Alabama, thus leaving it in place for Congress, should it ever wish to enact an updated "formula." (Giving Congress the chance to address or update Section 5 was the "chance to resolve the issue on a non-constitutional basis").
As Justice Antonin Scalia said during oral arguments: "Congress reauthorized Section 5 (in 2006) not because the legislation was necessary, but because it constituted a 'racial entitlement' that Congress was unlikely to end."
The important thing to know is that as it stands now, Section 5 has been rendered useless by the decision in Shelby because the provision that gives it force (Section 4) has been struck down as unconstitutional. And because Section 5 is rendered useless, the Voting Rights Act no longer demands and requires federal court review and approval of any changes to North Carolina's voting laws. (Same for any other southern state previously identified by the law's "preclearance" provision)
D. Latest Draft of a NC Photo-Voter ID bill (S.824):
PART I: IMPLEMENTATION OF THE CONSTITUTIONAL REQUIREMENT REQUIRING PHOTOGRAPHIC IDENTIFICATION TO VOTE
SECTION 1.1(a) Article 17 of Chapter 163A of the General Statutes is amended by adding a new section to read:
"§ 163A-869.1. Voter Photo Identification Cards.
(a) The county board of elections shall, in accordance with this section, issue without charge voter photo identification cards upon request to registered voters. The voter photo identification cards shall contain a photograph of the voter and the registration number for that voter. The voter photo identification card shall be used for voting purposes only, and shall expire ten years from the date of issuance.
(b) The State Board shall make available to county board of elections the equipment necessary to print voter photo identification cards. The county board of elections shall operate and maintain the equipment necessary to print voter photo identification cards.
(c) County boards of elections shall maintain a secure database containing the photographs of registered voters taken for the purpose of issuing voter photo identification cards.
(d) The State Board shall adopt rules to ensure at a minimum, but not limited to, the following:
(1) A registered voter seeking to obtain a voter photo identification card shall provide the voter's date of birth and the last four digits of the voter's social security number.
(2) Voter photo identification cards shall be issued at any time, except during the time period between the end of the voter registration deadline for a primary or election as provided in G.S. 163A-865 and election day for each primary and election.
(3) If the registered voter loses or defaces the voter's photo identification card, the voter may obtain a duplicate card without charge from his or her county board of registration upon request in person, or by telephone, or mail.
(e) Ninety days prior to expiration, the county board of elections shall notify any voter issued a voter photographic identification card under this section of the impending expiration of the voter photographic identification card."
SECTION 1.2(a) Article 20 of Chapter 163A of the General Statutes is amended by adding a new section to read:
"§ 163A-1145.1. Requirement for Photo Identification to Vote in Person.
(a). Photo Identification Required to Vote. - When a voter presents to vote in person, the voter shall produce any of the following forms of identification that contain a photograph of the voter:
(1) Any of the following that is valid and unexpired, or has been expired for one year or less::
A North Carolina drivers license.
A special identification card for nonoperators issued under G.S. 20-37.7 or other form of non-temporary identification issued by the Division of Motor Vehicles of the Department of Transportation.
A United States passport.
A North Carolina voter photo identification card of the voter issued pursuant to G.S. 163A-869.1.
A valid and current tribal enrollment card issued by a federally recognized tribe.
A valid and current tribal enrollment card issued by a tribe recognized by this State under Chapter 71A of the General Statutes, provided that card meets all of the following criteria:
(i). Is issued in accordance with a process approved by the State Board that requires an application and proof of identity equivalent to the requirements for issuance of a special identification card by the Division of Motor Vehicles of the Department of Transportation.
(ii). Is signed by an elected official of the tribe.
A student identification card issued by a constituent institution of the University of North Carolina, a community college, as defined in G.S. 115D-2(2), or eligible private postsecondary institution as defined in G.S. 116-280(3), provided that card is issued in accordance with G.S. 163A-1145.2.
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