VOTING RIGHTS JUNE 25, 2013
Two days before Christmas in 2011, Dr. Brenda Williams, who together with her husband runs a small family-physician practice in Sumter, S.C., was on the road with him and their daughter when they got word that the U.S. Department of Justice had decided to challenge a strict new voter ID law signed by South Carolina Governor Nikki Haley. Brenda hooted and hollered in the car—this had become a cause for her, ever since she realized how difficult it was going to be for many of her patients and other low-income black South Carolinians to obtain the paperwork needed to get the requisite photo ID. She had sent countless entreaties and documents to Washington making her case, and here was the reward: the DOJ was denying the South Carolina law “pre-clearance” under Section 5 of the Voting Rights Act.
Haley would protest the action loudly—I saw her on the campaign stump in Greenville a month later with Mitt Romney declaring that a Romney administration would let South Carolina do whatever it chose when it came to voting rules. But federal law was federal law, and as a result of the DOJ’s challenge, South Carolina agreed in the subsequent months of federal court hearings to significantly soften the new requirement to exempt anyone who had a “reasonable impediment” to obtaining ID.
That outcome is now consigned to a previous era. Today, Brenda Williams got word in Sumter that the landmark, 48-year-old law that had just recently been invoked to make restrictive voting rules slightly less so had been eviscerated in a 5-4 ruling by the Supreme Court. “I’m disappointed,” she told me. “The Supreme Court took a cowardice stance…Why do I call it cowardice? Because the justices didn’t have the stamina to stand up against racism’s ugly face.”
At the heart of the case was a logical dispute: Roberts and his conservative colleagues on the court argue that strong turnout by African-American voters in Southern states is proof that racism is no longer driving voter suppression there, while the court’s minority argued that it was precisely the vigilance of the Voting Rights Act that had helped bring about and ensure that higher participation. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” wrote Ruth Bader Ginsburg in her dissent, in what is surely one of the pithiest retorts in court history.
Based on Brenda Williams’ experience in South Carolina, it is indisputable that Ginsburg’s reading is correct: things would be a lot worse without the VRA. As Williams set out to help patients without the photo IDs required by the new law—state officials estimated there were 180,000 residents in that category—she found person after person for whom getting the ID would be a struggle. There was Thelma Hodge, a 76-year-old who lacked a birth certificate—when Williams called the local health department about getting one, she says she was told to "contact vital statistics." That led to a call to a company called VitalChek, which has rights to a national registry of birth certificates and charges $30 for a copy, plus a $12.95 handling fee, plus $9.75 shipping—a total of $64.70. Williams put it on her credit card, as she would for many of the other 100-plus people whom she helped secure IDs.
Amanda Wolfe, 28, not only did not have a birth certificate but did not know who her birth parents were. Naomi Gordon’s birth certificate but it misspelled her first name as "Lmnoie," the apparent result of having been birthed six decades ago by a midwife with sloppy or poor writing skills. Her brother Raymond Rutherford had his name misspelled as Rayman; his only photo ID was one he'd bought from the local liquor store in 1976 for $10. Junior Glover, 78, had his birth recorded only in a family Bible that was destroyed in a fire in 1989. Clyde Daniels had a birth certificate but no proof of his address, as all his household records were in his wife's name.
In the meantime, Williams was getting signals from local power-brokers about what they made of her activism. On April 19, 2011, she received an e-mail from Phillip Lowe, a Republican state representative whom she had contacted about funding for her efforts to get IDs for residents. Lowe e-mailed right back: "I have a way of funding your operation and solving all the name change problems. Ask all the people needing to change their name to come to a free legal seminar. Have [the South Carolina Law Enforcement Division] run a free background check. If any turn up in the most wanted list, you will get the reward. :)" Her local state representative was jokingly assuming that those she was helping were being sought for crimes.
Lowe’s remark, which he swore to me was meant in jest, pales next to others from Southern Republican legislators. His colleague in the South Carolina State House, Alan Clemmons, wrote “Amen” in response to a constituent who e-mailed to complain that black voters would be “like a swarm of bees going after a watermelon” if they were offered a monetary reward for obtaining photo identification. In Florida, State Senator Mike Bennett said he didn’t “have any problem making [voting] harder.” He explained: “I want the people in the state of Florida to want to vote as bad as that person in Africa who is willing to walk two hundred miles for that opportunity he’s never had before in his life. This should not be easy.”
This is the universe that John Roberts and four fellow justices—including one who grew up surrounded by the legacy of Jim Crow—have decided no longer requires special scrutiny. Their ruling leaves open the possibility that Congress could come up with new standards by which to require federal pre-clearance of voting laws, but the justices know that the odds of today’s Congress agreeing on that are as good as the odds of an ice cube on a Birmingham pavement in mid-July. (It's worth noting that Roberts has left quite a legacy for low-income Southern blacks: not just the gutting of the Voting Rights Act, but also the ruling last year making optional the expansion of Medicaid, which has had a particularly big impact on poor residents of Southern states.)
For now, Brenda Williams is trying to find a silver lining. Perhaps, she told me, Americans would take to heart one implication of the ruling, that racism is no longer just a Southern phenomenon but something that must be guarded against nationwide—after all, it’s not just Southern states that have been passing stringent Voter ID laws that will have disproportionate impact on non-white voters. (For a good wrap on expert reaction to the law, see Risk Hasen's blog.)
But it’s awfully hard to come to terms with a new landscape in which she and others fighting for equal voting rights now lack a powerful tool they had for decades, even as they continue to face evidence that the discrimination that gave rise to the Voting Rights Act is, as she put it, “not ancient history and not remote.” Just in the past few weeks, she had been firing off letters warning about legislation that had been wending its way through the State House in Columbia, HB 3176 (co-sponsored by Mr. "Amen" himself, Clemmons), that would require disabled voters to have a letter from a doctor to obtain an absentee ballot—a requirement that comes with a cost for many low-income black voters, given that many doctors these days charge for such letters. That law might have faced a pre-clearance challenge. No longer.
“We know there’s no end to it,” she said. “I’m disappointed, but in South Carolina we’re not ending anything. We’re just digging in deeper.”
Alec MacGillis is a New Republic senior editor. Follow him on Twitter @AlecMacGillis.