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Thursday, February 6, 2014 - 2:10am

Loss Of Key Voting Rights Act Section Most Keenly Felt In Local Elections

It’s been eight months since the Supreme Court effectively stuck down Section 5 of the Voting Rights Act of 1965, the section that required jurisdictions with a history of discrimination at the polls (i.e. Georgia and most other states in the South) to get their local voting laws “pre-cleared” by the federal government.

In his majority opinion, Chief Justice John Roberts pointed out that discrimination at the polls remains against the law; the surviving Section 2 says anyone who’s been disenfranchised need only bring suit after the offending election has occurred.

So far, it hasn’t worked out that way. Except in the places where it has.

While the ink was still wet on Roberts’ opinion, North Carolina’s Republican Gov. Pat McCrory signed one of the nation’s most aggressive Voter ID laws. On top of the government-issued ID requirement for voting, the law also shortens the state’s early voting period and eliminates both same-day registration and pre-registration for minors who will be 18 the day of the election.

Republicans said the ID component was necessary to prevent fraud (of which little has been documented) while the rest will save the state money on elections.

Democrats and voting rights advocates saw the measure as an attempt to suppress low-income and minority voters (who tend to vote for Democrats). In August, the NAACP and ACLU filed suits, and a month later U.S. Attorney General Eric Holder piled on with the Justice Department’s own suit.

In announcing DOJ’s involvement, Holder could not have been much clearer about what he thought North Carolina Republicans were up to. “Within days of the Supreme Court’s decision to strike down key provisions of the Voting Rights Act, the state legislature took extremely aggressive steps to curtail the voting rights of African Americans,” he said.

What’s happening in North Carolina would seem to prove Justice Roberts’ point. Sure, the federal government couldn’t block the new law before it went into effect like they used to be able to. But now they are suing to overturn it; a judge will consider the evidence and, one way or another, justice will be served.

From the ashes of Section 5, Section 2 emerges fighting. But not on every front.

“At the statewide level, that’s where the Democratic Party can fight the battle for African American and Latino voters,” said Emory University election law professor Michael Kang. “Those are fairly high publicity kind of issues were people mobilize.”

“But at the local level a lot of stuff happens under the radar that really matters, that affects people’s ability to vote effectively,” he said.

So if you want to see how the demise of Section 5 is affecting elections across the country, look at races for Mayor and City Council, not President and Congress.

From Voting Rights Act

In February of last year, protesters gathered outside of the U.S. Supreme Court to rally against changes to the Voting Rights Act. (Photo Credit: David Sachs / SEIU)

For example, around this time last year, Republican legislators in Georgia made a tweak to local elections in Macon – a solidly Democratic, majority black city. A few months earlier, people there voted to consolidate with surrounding Bibb County (itself slimly majority black).

The charter voters had just approved for themselves called for partisan elections with a primary in July and a general in November, as the city had prior to consolidation. But GOP legislators decided to change the game. They passed a bill converting Macon-Bibb to nonpartisan elections. With no need for a party primary, there would now be just one election (barring a runoff) in July.

During the floor debate in the state House, Democratic Rep. Nikki Randall of Macon said she knew what her GOP colleagues were up to.

“In light of the fact that Bibb County is clearly a Democratic-performing county,” she said sardonically, “could this measure be an attempt to give the minority party more control, even if it means deceiving the citizens that they represent?”

Republicans—most prominently Macon state Rep. Allen Peake—said they were merely trying to get Macon-Bibb in line with Georgia’s other consolidated city-county governments, all of which have nonpartisan elections.

Regardless of the GOP’s true intent, the scenario Randall describes could well be the effect.

Elections held outside the traditional voting month of November tend to have much lower turnout among poor and minority voters, said Chris Grant, professor of political science at Mercer University in Macon.

“When you vote at unusual times it’s not as well publicized as when you vote at a regularly scheduled time,” he said. “[Odd-month voting] was actually one of the mechanisms that was used back before the Voting Right Act was passed…because it was found to have a discriminatory effect, so that only certain people knew the election was coming up, and it could be campaigned for in a private way.”

That’s exactly why a year ago the Justice Department blocked a similar election calendar change in Augusta, Ga. It looked as though the feds would intervene in Macon too, until the Supreme Court deprived them of that power.

From Voting Rights Act

Last year, the U.S. Supreme Court effectively struck down Section 5 of the Voting Rights Act. Section 5 prevented some local jurisdictions from making any change to voting laws without first obtaining approval from the federal government.(Photo Credit: David Sachs / SEIU)

In the odd-month election that followed, some competitive black candidates for mayor and commission seats lost to white opponents.

“There’s certainly a lot happening in Macon-Bibb County,” said Gilda Daniels, a former attorney in the Justice Department’s Civil Rights Division and now a law professor at the University of Baltimore.

“I can certainly see a Section 2 challenge based on the change in election date,” she said.

And yet, no one has filed the viable lawsuit that Daniels envisions – not the Democratic Party, not the NCAAP, not the Justice Department.

Not even the losing candidates are feeling litigious over this one. C. Jack Ellis (who lost the mayoral race to Robert Reichert) and Henry Ficklin (who lost a much tighter commission race to Larry Schlesinger) said they’ve both contemplated a Section 2 challenge, but it hasn’t evolved beyond the theoretical.

Daniels thinks she knows at least one reason why they’re all sitting on the sidelines, she said. “It’s so expensive, it is very expensive to bring Section 2 cases, which is the big difference between Section 2 and Section 5.”

“Section 5 was proactive and preemptive. [The state] would not have been able to change the election date without DOJ approval,” she said.

But to convince a judge to reverse the new law after the fact, a plaintiff would have to come up with years of voting records to prove minority turnout was negatively affected. They’d have to hire lawyers, expert witnesses – it could all cost millions, Daniels said.

There are people who would pay that bill for a statewide fight. But it seems voters in this mid-sized city are on their own.