North Carolina and South Carolina would face federal oversight of election law changes if a new Democratic bill to update the Voting Rights Act passes — and the U.S. House of Representatives held a field hearing in North Carolina’s Halifax County last week to help build the case for passage.
The Carolinas are among 11 states are expected to meet a formula for federal oversight in the Voting Rights Advancement Act, according to the bill’s sponsor. Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, Texas and Virginia are the other states.
The Department of Justice had to sign off on any election law changes or redistricting changes made in certain states or jurisdictions under the “preclearance” process prescribed by the Voting Rights Act of 1965. But the Supreme Court struck down the formula to determine preclearance in its 2013 decision in Shelby County v. Holder. All of South Carolina was subjected to preclearance. North Carolina, as a whole, was not subject to preclearance, but 40 of its 100 counties were covered.
The court ruled Congress could redesign the formula.
Since taking control of the U.S. House earlier this year, Democrats have made restoring the Voting Rights Act one of their top priorities. An elections subcommittee of the House Administration Committee has been holding field hearings across the country. Last week, the subcommittee, which includes North Carolina Democrat G.K. Butterfield, held a hearing in Halifax County, a majority African-American county in the northeast part of the state on the Virginia border.
As a result of legislative changes designed to standardize early voting hours, Halifax County had just one early voting site for the 2018 election. In 2012 and 2016, the county had three early voting locations. In 2018, the county ranked last in North Carolina in percentage of registered voters who voted early at 14.7 percent, according to a News & Observer analysis of voting data. Twenty-seven percent of residents in Halifax County live below the poverty line, according to Census data, and one in eight households lack transportation, Butterfield said.
Butterfield and Ohio Rep. Marcia Fudge, the subcommittee chair, were the only members of the four-person subcommittee at the hearing at Halifax County Community College.
“We are determined to fix Section 4 of the Voting Rights Act, hopefully with bipartisan support, which was invalidated by the Court,” Butterfield said at the hearing. “This subcommittee must build a record to provide the legislative basis for the passage of strong voting rights protections.”
Section 4 of the Voting Rights Act, first passed in 1965, established a formula to identify areas of the country where racial discrimination had been prevalent. The formula was updated several times throughout the years, lastly in 1975, but part of it relied on data from the 1960s, such as whether a state had a literacy or moral clause test — Jim Crow-era laws designed to keep black people from voting — in 1964.
Reauthorization of the act for 25 years passed in 2006 by a vote of 98-0 in the Senate and 390-33 in the House and was signed into law by President George W. Bush.
But in a 5-4 decision, along ideological lines, the court invalidated Section 4.
“Our country has changed, and 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,” the court wrote.
The Voting Rights Advancement Act was introduced in late February by Rep. Terri Sewell, an Alabama Democrat, and Sen. Patrick Leahy, a Vermont Democrat. It has 221 co-sponsors in the House and 45 in the Senate — all Democrats. With Democrats in control of the House, it stands a good chance of passing that chamber.
The bill introduces a new formula that would apply to states that had 15 or more voting rights violations in the last 25 years or that had 10 voting rights violations, including one by the state itself, in the last 25 years. If the bill had passed last year, two additional states — Arizona and Arkansas — would have been expected to be on the list.
It is up to the courts, among others, to determine a voting rights violation under the bill, and the U.S. attorney general is tasked with creating and updating a list of violations per state and political subdivision, like a county, each year. Violation of the 14th or 15th amendments would qualify, as would denial or limiting of the right to vote on account of race, color or language.
There is currently no database of adjudicated voting rights violations. The Brennan Center for Justice, a left-leaning advocacy group, keeps an updated list of voting rights-related litigation across the nation.
The absence of an intact Voting Rights Act, Butterfield said, has shifted the financial cost of litigation from states or counties wishing to make election law changes to those affected by the change.
“The burden is on the voters now,” said Caitlin Swain of Durham-based Forward Justice, which aims to advance racial justice.
Swain was one of six witnesses to testify before the committee, including Rev. William J. Barber II; state Sen. Dan Blue, the Democratic minority leader; and former state Supreme Court Justice Patricia Timmons-Goodson.
Some of the testimony centered on the voter ID measure introduced as part of a massive voting rights bill in North Carolina shortly after the Supreme Court’s decision in Shelby. Critics dubbed it the “monster” bill that also cut a week of early voting and ended preregistration for 16- and 17-year-olds.
“This monster voter suppression law was the worst of its kind in the nation after Shelby and was only possible because the preclearance protection was no longer in place. It is the worst we have seen since Jim Crow,” Barber said. “We heard a federal judge ask, it is on the record, why don’t people want people to vote in North Carolina.”
The voter ID portion was struck down by a federal appeals court in 2016, saying the requirements “targeted African-Americans with almost surgical precision.” Several other provisions besides voter ID were struck down as discriminatory.
The state legislature placed a constitutional amendment requiring voter ID on the ballot in 2018 and it passed. Wrangling over what identification will be accepted continues. Butterfield said he believes the Department of Justice would have stopped implementation of voter ID now had preclearance for North Carolina’s counties been in place. Though Congress and the federal government could not deny the state’s right to place a constitutional amendment on the ballot, he said, it could interpret what can be enforced.
North Carolina has seen a torrent of court challenges to election law changes in recent years, including the overturning of congressional districts for racial gerrymandering. Those districts, drawn in 2011, were subject to preclearance. Others, like the 2013 voter ID law and districts challenged as partisan gerrymanders, came after the Shelby decision.
In addition to restoring the Voting Rights Act, the witnesses offered a variety of other solutions to make voting easier, including making Election Day a national holiday, automatic registration for 18-year-olds, creation of an independent voter protection agency, expanding the right to vote to felons and having Congress weigh in on redistricting. House Democrats passed HR1 earlier this year, which includes many of those changes.
The subcommittee will hold additional hearings in Ohio and Florida. It has already held hearings in Texas, North Dakota and Georgia.
“Voters all across the country are concerned about making sure that their vote counts in every election, to make sure their vote is not diminished or marginalized because of election laws and procedures,” Butterfield said.