August 6 is the 48th anniversary of the signing of the Voting Rights Act. This is the first anniversary since the Supreme Court invalidated Section 4 of the Act, striking critical protections for voters in 9 Southern states and various additional counties across the nation, places where Congress had found patterns of discrimination aimed at preventing racial minorities from voting.
Looking back at this court case, one of the worst in the history of voting rights law, it is a good moment to reflect and ask: did our state lawmakers inadvertently help Supreme Court Justice John Roberts strike down the heart out of the Voting Rights Act?
Robert’s ruling was based on the notion that while there were racial disparities in voting and voting rights problems in the states listed by Congress in Section 4 of the Voting Rights Act, there were also similar problems in the North. In February’s oral argument, Robert singled out Massachusetts:
Chief Justice Roberts: “Do you know which state has the worst ratio of white voter turnout to African-American voter turnout?”
U.S. Solicitor General Donald Verrilli: “I do not.”
While Roberts’ statement was heated refuted by state officials, the point — that states like Massachusetts can be just as bad on voting rights issues as states listed by Congress in Section — became the heart of his ruling in Shelby.
Roberts’ factoid was well chosen. It is true that voter turnout rates for African Americans in Massachusetts, as calculated by the US Census, were lower than those African Americans in Mississippi in several recent elections. (Think about that for a moment!) Massachusetts’ defenders were left pointing out, rather pathetically, that the margins of error for the two calculated numbers overlapped, and the Census’ sample size in our state was very small. Even as they nitpicked Roberts’ statistic, Massachusetts’ apologists had to admit a sad truth: a stark disparity in voter participation has existed between white people and people of color for decades. State policymakers have done very little about it.
We know where this disparity comes from. Massachusetts has long tolerated glaring disparities pockets of stark economic, educational, and health inequality, particularly for African-Americans Latinos and Asian-Americans, compared to a white population which is, on average, much better off. (This is not to neglect the plight of those whites who are in poverty, which a real problem, too). Is it any surprise that better-educated people with money tend to vote more than less-educated people with less money? For decades, these disparities have translated into missing Black, Latino, and Asian American voters at the polling place, despite the heroic efforts of civic groups to get out the vote.
What’s worse is that election experts have long known how to close the gap – or at massively narrow it. And the solutions are much cheaper and easier then the more intractable problems of closing disparities in education, the economy or healthcare.
The case of North Carolina provides a stunning counterexample. Over the past few decades North Carolina went out of their way to close disparities in voter participation. They put in place a thoroughly modern voting system that allowed register and vote in one stop throughout their early voting period. They let gave all citizens have the choice to vote absentee, not just those who were ill or out of town. And they had an acclaimed program that encouraged 16 and 17-year-olds to systematically pre-register to vote in their high schools so that when they turned 18 they were all set to vote. Not surprisingly, the gap between white and African American voters, once enormous, has shrunk markedly over the past decade.
North Carolina’s good voting practices were a guide to everything missing from the Bay State’s voting system. Early voting? Not in Massachusetts. Absentee voting for busy workers or parents? Of course not. Preregistration for 17-year-olds? No. Same day registration, the gold standard for protecting the right to vote? Definitely not.
Enter the Supreme Court. Now, without preclearance, North Carolina, Mississippi, Texas, Florida and other states can do whatever they please. Voting rights advocates can sue only after they go into effect.
In 2010, the Tea Party swept into power in North Carolina. Empowered by the Supreme Court’s decision, the Republican legislature is hard at work on a new wave of changes to their voting laws. If they have their way, North Carolina’s laws will be a model of voter suppression, barring early voting and same day registration, making it more difficult to vote absentee, and ending their high school civics and voter registration programs. In other words, they will make their voting laws mirror the Massachusetts already has.
In fairness to Massachusetts, another part of the North Carolina agenda is to enact strict voter ID legislation, one particularly bad idea that thankfully has never made it on the books here.
We can never know if John Roberts would have been able to convince 4 other Justices to go along with him in dismantling Section 4 without the Massachusetts example. Yet Justice Anthony Kennedy was right when he recently said, “We must know and understand our heritage and our history.” And that includes understanding Massachusetts’ longstanding pattern of neglect towards deep racial disparities in voting.