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University Gazette

The University of North Carolina at Chapel Hill

Law professor spearheads amicus brief to safeguard Voting Rights Act

Forty-eight years after the landmark Voting Rights Act of 1965 outlawed discriminatory voting practices, one of its provisions is being challenged in the nation’s highest court.

On Feb. 27, the Supreme Court will hear the case Shelby County v. Holder to decide if the states and communities covered under Section 5 still need this kind of supervision to prevent racial discrimination at the polls.

The School of Law’s Kareem Crayton teamed with five other nationally recognized scholars in political science and law on an amicus (“friend of the court”) brief to educate the court with their collective research on elections and voting rights.

“The question is: Does there continue to be a pattern of racial discrimination in the political arena, and is this kind of remedial legislation still needed?” Crayton said. “As scholars with a great deal of expertise on the topic, we are offering a way to answer that question.”

Section 5 requires certain areas with histories of racial discrimination and discriminatory voting practices to alert the federal government when they alter voting laws. This includes the redrawing of voter districts, requiring voter identification and discontinuing early voting practices.  The law requires that the government show that the changes do not worsen political conditions for non-white voters.

In 2006, Congress secured Section 5 of the Voting Rights Act through 2031, but Shelby County (Ala.), the plaintiff in the lawsuit, contends that in the nearly five decades since President Lyndon Johnson signed the law, the country has made enough racial progress to deem Section 5 unnecessary.

With an increasing number of non-white voters in 2008 and again in 2012, and with an African-American president elected in both elections, many wonder if these states and counties, mostly in the South, still need this oversight. The research says yes, Crayton said.

“Nobody questions whether or not things have changed in areas where Section 5 applies,” he said. “But has that change been significant or deep enough?”

It’s about the data

The notion that racial discrimination has diminished is too narrow a measure to fairly assess the law, Crayton said. It’s not about feeling that things are better, he said; it’s about data to show whether the change is deep and lasting.

The 68-page brief presents statistics and facts from a number of other court cases, the U.S. Census Bureau, election polls and the research and writings of academics from around the country, including the authors.

“What the Chief Justice seems to want is clear guidance on the differences between places like Ohio and Pennsylvania, which aren’t covered by Section 5, and places like Alabama and South Carolina which are,” Crayton said.

Through tables and charts, the brief does that on many issues including access to voting in areas covered by Section 5.

For example, the brief cites data on the disproportionate impact that restrictive voter identification requirements have on non-white voters and how economic circumstances affect citizens’ ability to comply with voting requirements.  Section 5 states employ these rules more often than others. 

Even with the offer of a free government ID, Crayton said, there’s a hidden cost.

“In order to get that ID, you have to provide some sort of proof of who you are, and in many places, that’s a steep requirement that can include a number of documents,” he explained.

Many older people in Section 5 states might not have a birth certificate because the documents were not widely available at the time they were born. People without driver’s licenses have an uphill battle to collect the necessary documents, Crayton said, and because voting is a right guaranteed by the 15th Amendment, all voters should have an equal path to the poll.

While the data supports the idea that these problems are more prevalent in states covered by Section 5, it does not support the idea that voter fraud, the crime voter identification would protect against, is a present danger.

“Where we do have voter fraud, it’s minuscule, so we don’t see a clear problem there,” Crayton said. “Voting is something everyone has an entitlement to by virtue of being a citizen, and we should be encouraging people to vote and making it easier for them to vote, especially when they have a history of being excluded from this process.”

When attitudes pervade politics

The research shows there is still a serious difference in the way politics work in a Section 5 state when compared with the rest of the nation, Crayton said, and that negative racial attitudes can pervade politics.

When voters were asked questions that reflected racial prejudice, white voters in Section 5 states showed a greater incidence of racial prejudice than in other states. “If you feel like you don’t like a group of people, you’re unlikely to cooperate with them at the polls,” Crayton said.

The presence of discrimination cases in Section 5 states is another indicator that they are, indeed, different from other states, he said, and the government still needs to review changes in voting laws there.

Many Section 5 states are still racially polarized.

“The best example of this is comparing the support for democratic presidential candidates in the last election in Utah and Georgia,” Crayton said. “Both are very Republican states, but the white support for the Democratic candidate was significantly lower in Georgia, a Section 5 state, than in Utah.”

In many Section 5 states, white support for Barack Obama in 2008 was lower than support had been for John Kerry in 2004, even though they represent the same party, and even though Kerry had lost four years earlier.

“Over time, we fully expect that our country will get to the point where you can take off the training wheels and let these states conduct politics like everywhere else,” he said, “but we still need the government to look over the shoulders of these states on this.”

Taking it to court

When Crayton decided to provide an amicus brief to the court, he looked to organize fellow experts on race, politics and voting. “We’re social scientists. We just want them to look at the data before they decide,” he said.

Crayton’s brief is one of dozens submitted to the court for this case, but he said it’s likely the only one done by a group of scholars blending law and political science and advancing their argument through empirical data.

“This is one of those questions where law assumes a lot of theory, and political scientists are very good at that,” he said. “I wanted people like me with training in both fields to use their work, and the work they know about, to explain to the court how to understand these numbers in broader terms of racial cooperation.”

Crayton said he expected both parties to engage the brief, especially the opposing side.

“Shelby County made the argument against Section 5 that there’s no fundamental difference between their state and other states,” he said. “We highlight the ways in which the litigant, an entity in Alabama, is in fact at the top of the list in terms of these differences.”

As an academic, Crayton said it’s important to think broadly about the policy implications, not only to the individual county that brought the case before the court, but also how a case might affect the entire country.

“Frankly, this is what the 15th amendment stands for, which is to make sure the right to vote is preserved for everybody, regardless of race or color,” he said.