Who Gets to Vote?
Contrary to what is generally believed, the U.S. Constitution explicitly guarantees no one the “right to vote.” Rather, the 14th Amendment protects constitutional rights in general from abridgement by the states as well as by the federal government:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Constitution forbids restrictions on the right to vote of certain citizens in the 15th Amendment:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
and in the 19th Amendment, on account of sex, with the protection further extended in the 24th Amendment:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Finally, the 26th Amendment protects the right to vote of those over 18.
Since it was apparent by the mid-20th century that more was needed to protect these rights, the Voting Rights Act was passed in 1965, providing general prohibitions against state and local governments imposing any voting law resulting in discrimination against racial or language minorities, thus forbidding the notorious use of such devices as discriminatory literacy tests.
The Supreme Court rendered additional special provisions ineffective that affected jurisdictions with especially egregious records before 1965 in Shelby County v. Holder (2013), with Chief Justice Roberts’s opinion declaring that the current situation at that time made them unnecessary. The triggering provisions included literacy tests and registration or voter turnout of less than 50% of those eligible.
The Shelby decision set off the introduction of a series of state laws imposing a variety of restrictive voting practices, not only throughout those areas covered by the 1965 special provisions but elsewhere in the U.S as well.
Under some federal statutes, two types of discrimination are illegal: disparate treatment and disparate impact.
In the latter case, generally, the intent of questioned practices is irrelevant if their impact is discriminatory. For example, in Young v. United Parcel Service (2015), a UPS policy requiring that drivers be able to lift 70-pound parcels was found to be a violation of the Pregnancy Discrimination Act that amended Title VII of the Non-Discrimination in Employment Act.
UPS’s argument that the requirement was a business necessity was demolished by evidence showing that very few parcels weighed that much and, in any case, other drivers had been given lighter duties rather than, as was Young, being put on unpaid leave if they could not lift such heavy items. That is, whatever the intent, the impact was discriminatory.
The standard of discriminatory impact also applies to the Voting Rights Act. However, in the case of violation of constitutional provisions, it is necessary to show that the intent of laws or procedures was discriminatory, not just the outcome. This summer, the Fourth Circuit Court of Appeals, in NAACP Conference of North Carolina v. McCrory, invalidated what some commentators called “the country’s worst anti-voting law,” with the court declaring that it “targeted African Americans with almost surgical precision.”
The U.S. Supreme Court refused to grant an emergency stay of the circuit court’s order, restoring the voting law in North Carolina to where it had been before the post-Shelby legislation. Voting restrictions introduced in other states have also been voided, and challenges to others are pending. The contested provisions include requiring specific forms of voter ID, reducing opportunities for early voting, and eliminating same-day registration and voting.
Although a finding of discriminatory intent was needed to void the North Carolina voting “reform” law, disparate impact is one important factor contributing to a finding of intent. Through analysis by statistical experts, civil rights groups made the case that numerous provisions of the law would be likely to have an adverse impact on minority voters. They showed that in the past, African American voters were more likely to be early voters, vote out-of-precinct, register on the same day as the election, and pre-register as 16- and 17-year-olds, and less likely to have the required forms of voter identification.
Evidence showed that in designing the law, the North Carolina legislature considered the impact of each proposed provision and was aware of its discriminatory impact.
The court said that states can restrict voting rights only if they have a good reason for doing so—and partisan politics is not sufficient if the result is discriminatory. In defense of the law, the state of North Carolina said such provisions were required to prevent voter fraud, but the Fourth Circuit opinion asserted that the provisions of the law constituted “inapt remedies for the problems asserted justifying them” and, in fact, imposed cures for problems that did not exist.
Thus, the court found that “the asserted justifications cannot and do not conceal the state’s true motivation.”
For example, voter ID was not required for absentee voting, a method used disproportionately by whites, but only for in-person voting, used disproportionately by African Americans. Moreover, there were no cases where the state could identify in-person voter fraud in connection with IDs, while there were such cases in absentee voting.
History presented convincing evidence of the motivation for the intent to suppress the African American vote. Beginning in 2000, the state had passed a series of reforms that broadened access to the election process; between 2000 and 2012, African American voter registration grew by 51.1% and turnout increased from 41.9% to 68.5%, with the vote being overwhelmingly for Democrats.
After the Shelby decision, the North Carolina legislature, then controlled by Republicans, curtailed or eliminated every voting reform that could be shown to expand political participation, particularly on the part of African American voters.
This was inaugurated the day after the leader of the legislature announced a decision of the intent to enact an “omnibus” election law. Having received requested data on the use by race of a number of voting practices, the North Carolina General Assembly enacted legislation that restricted voting and registration in five different ways, all of which affected African Americans disproportionately.
For example, North Carolina admitted eliminating voting on a Sunday before the election because “counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic.”
Unlike the case of the other provisions, there was no history of the direct impact of the proposed voter ID requirements. However, analysis showed that the forms of government-issued IDs more likely to be used by African Americans, such as student IDs, were eliminated from the list of those acceptable, while drivers’ licenses, which whites held disproportionately, were included.
Although various forms of voter ID laws have been in effect for several years in some states, there has been little direct evidence of their impact, aside from their suggested effect on voter turnout and student-conducted exit polls in some jurisdictions that showed their disproportionate impact on minority voters as measured by potential voters who were turned away at the polls due to lack of acceptable IDs.
Generally, it is acknowledged that it may be constitutionally permissible to make legal distinctions even though the impact is discriminatory with respect to certain groups. However, high standards apply when the classification is on the basis of race. If it is claimed that the law was passed to further “a compelling government interest,” it must be shown that the law was narrowly tailored to achieve that goal. In the North Carolina case, once the discriminatory nature of the law was established, the court went on to find that not only was discrimination a motivating factor, “but for” the discriminatory intent, the provisions in question would not have been enacted.
In Veasey v. Abbott, also decided this past summer, the Fifth Circuit Court of Appeals found the Texas voter ID law to have discriminatory impact in violation of the Voting Rights Act, but—unlike in the North Carolina case—did not find discriminatory intent.
The forms of voter ID required by the state of Texas were Texas driver’s license, Texas Election Identification Certificate (TEIC), Texas Personal Identification Card, Concealed Handgun License, veteran’s ID card, U.S. Citizenship Certificate, and U.S. passport. Statistics, including ecological regression, were used to show that not only were African Americans less likely to have one of these forms of identification, but also that a larger proportion of African Americans than whites in Texas lived in poverty, so the difficulty and cost of obtaining the nominally free TEIC would have a disproportionate impact on those residents.
Both in North Carolina and in Texas, the courts mandated alterations in the operation of what opponents characterized as “voter suppression” laws that would make them, in the opinion of the court, less discriminatory. Currently, reports leading up to the November 2016 election indicate that there may be resistance to this mandate, if not statewide, at least at the county level. For example, one dispute centered on the removal of the court-mandated “reasonably” in the requirement that voters lacking ID could vote if they signed a form stating that they “cannot reasonably obtain” one.
Litigation in other jurisdictions challenging such state voter ID laws is at various stages, with varied success. It would be interesting to see whether any large-scale effort is made to gather data of various forms of voter ID requirements on the direct impact on Election Day.
Mary Gray is professor of mathematics and statistics at American University in Washington, DC. Her PhD is from the University of Kansas, and her JD is from the Washington College of Law at American University. A recipient of the Elizabeth Scott Award from the Committee of Presidents of Statistical Societies, she is currently chair of the American Statistical Association Scientific and Public Affairs Advisory Committee. Her research interests include statistics and the law, economic equity, survey sampling, human rights, education, and the history of mathematics.