OPINION — Democracy is an idea powered by people’s votes. So on the eve of an important election, what is the state of our union?
In Georgia, the chief election official, Brian Kemp, is running for governor against Stacey Abrams, an African-American challenger, and 53,000 disproportionately African-American voters awaited processing of their voter registrations as an imminent deadline threatened to lock them out of the polls. Meanwhile, African-American senior citizens en route to vote early there were intercepted by county officials.
In Kansas, where another chief state election official seeks the governorship, local election officials in a rare majority-Latino city in that state moved the only polling place for approximately 13,000 voters from the city center to a remote and difficult to access location.
Meanwhile, a North Dakota voter eligibility law effectively threatens to exclude Native-American voters who live in places like reservations served by post office boxes rather than street addresses. A closely watched race there is a bellwether of which party will control the U.S. Senate.
It is 2018, and these examples illustrate that African-American, Latino and Native-American voters, among others, face contested election procedures and voting barriers.
Why does this matter? It matters because this is the most recent proof that our democracy is vigorously contested. There are two proven paths to winning elections. Candidates can do the hard work of building support through engaging messages and policy, while they focus on enhancing voter access and participation. This voter mobilization path is American democracy’s high road.
Other candidates, legislators and officials erect barriers to diminish voter participation and affect election outcomes. These efforts are often directed at minority communities. This is American democracy’s low road.
Two paths with deep historical roots, one high, one low, but both familiar. The watershed Voting Rights Act represented a national commitment to the high road — to the embrace of equality that was born of protest, personal and political courage, and, sadly, blood.
The VRA entrenched a minority inclusion principle in American democracy, an effective enforcement mechanism in federal law that was necessary because even a constitutional amendment had failed to root out widespread voting discrimination. Roll Call’s 50th anniversary issue recognized the VRA as one of the most significant laws ever passed by Congress because it stands as a firewall against recurring and adaptive efforts to discriminate.
The U.S. Commission on Civil Rights on which I sit recently released a report examining the impact of voting rights enforcement efforts before and after the U.S. Supreme Court’s ruling in Shelby County v. Holder. Five years ago, that ruling effectively disabled a core part of the Voting Rights Act: the so-called “preclearance” protections, which mandated review of voting changes to ensure that voting rules were discrimination-free before implementation, in parts of the country, like Georgia, where voting discrimination recurred.
At the time, Justice Ginsburg warned that the ruling was like “throwing away your umbrella in a rainstorm because you are not getting wet.” She was right.
As the report illustrates, the Shelby County ruling not only led to the revival of voting obstacles that the law previously and successfully blocked but also made them even more severe. In North Carolina, a federal court found sweeping new election rules were enacted with “surgical precision” to intentionally discriminate against minority voters. In Texas, another court found that a stringent voting law was motivated by racial discrimination and actually had that impact before the law was later modified.
More broadly, the Shelby County ruling also had a signaling effect that the national commitment to the minority inclusion principle was in retreat. This spurred a substantial number of voting obstacles in parts of the country beyond those immediately impacted by the decision, like North Dakota.
At least 23 states enacted stringent voting laws since the Shelby County ruling. The USCCR report describes voter intimidation and voter purges — removal from the rolls of eligible voters and suspect polling place changes that turn voting into a game of “hide and seek” or create unconscionably long line waits. Native-American, Latino and Asian-American voters face language access and other voting barriers as do voters with disabilities, and the U.S. Department of Justice is not attacking it with available tools.
It is worth noting that 12 of the commission’s State Advisory Committees, who serve as the eyes and ears of the commission on the ground, examined voting rights. Each found that there were official attempts to undermine the voting rights of eligible citizens in their states. The low road can be effective, but it is treacherous.
The USCCR report, however, not only catalogs these obstacles to democracy, but also calls upon Congress and DOJ to use the full extent of their respective powers to combat them. It asks Congress to use its substantial powers to lead, once again, in voter protection, by amending and expanding the Voting Rights Act.
For decades, members of Congress from both parties stood resolutely for the minority inclusion principle forged from our painful history, recognizing that it was not a choice about who might win any given election, but rather a much larger commitment to guard our democracy itself through the generations.
Justice Kennedy declared, during oral arguments in a case that foreshadowed the Supreme Court’s consequential ruling in Shelby County v. Holder, that the Voting Rights Act was passed because “democracy was a shambles.” There still are many threats to voter participation today, as the daily news accounts show; some local, statewide, and even some of an international dimension.
Tomorrow, the people must use their power and vote, but we deserve even more. The Constitution empowers Congress to act as democracy’s guardian, and each generation must ensure that our democracy is not “a shambles.” As a nation, we must recommit to American democracy’s high road and the minority inclusion principles that are a source of enduring strength. The union will be stronger for it.
Debo P. Adegbile is a partner at Wilmer Cutler Pickering Hale and Dorr, LLP, a member of the U.S. Commission on Civil Rights, and argued Shelby County v. Holder in the U.S. Supreme Court. This op-ed was written in his individual capacity.