★

★★★★

2018 STATUTORY REPORT

★★★★★

An Assessment of 

MINORITY VOTING RIGHTS ACCESS 

in the United States

U.S. COMMISSION ON CIVIL RIGHTS

Washington, DC 20425

Official Business

Penalty for Private Use $300

Visit us on the Web: www.usccr.gov

AN ASSESSMENT OF MINORITY VOTING RIGHTS ACCESS IN THE UNITED STATES
★ U.S. COMMISSION ON CIVIL RIGHTS ★

Te U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in 1957. Congress directed the Commission to:

• Investigate complaints alleging that citizens are being deprived of their right to 

vote by reason of their race, color, religion, sex, age, disability, or national origin, 

or by reason of fraudulent practices.

• Study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, 

disability, or national origin, or in the administration of justice.

• Appraise federal laws and policies with respect to discrimination or denial of 

equal protection of the laws because of race, color, religion, sex, age, disability, 

or national origin, or in the administration of justice.

• Serve as a national clearinghouse for information in respect to discrimination 

or denial of equal protection of the laws because of race, color, religion, sex, age, 

disability, or national origin.

• Submit reports, fndings, and recommendations to the President and Congress.

• Issue public service announcements to discourage discrimination or denial of 

equal protection of the laws.*

★ MEMBERS OF THE COMMISSION ★

Catherine E. Lhamon, Chair

Patricia Timmons-Goodson, Vice Chair

Debo P. Adegbile

Gail Heriot

Peter N. Kirsanow

David Kladney

Karen K. Narasaki

Michael Yaki

Mauro Morales, Staf Director

U.S. COMMISSION ON CIVIL RIGHTS

1331 Pennsylvania Avenue, NW

Washington, DC 20425

(202) 376-8128 voice

TTY Relay: 711

www.usccr.gov

COVER IMAGE: Tetra Images/Creative/Getty Images

*42 U.S.C. §1975a.
An Assessment of Minority 

Voting Rights Access in 

the United States

2018 Statutory Enforcement Report
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Letter of Transmittal

September 12, 2018

President Donald J. Trump

Vice President Mike Pence

Speaker of the House Paul Ryan

On behalf of the United States Commission on Civil Rights (“the Commission”), I am pleased to

transmit our briefing report, An Assessment of Minority Voting Rights Access in the United

States. The report is also available in full on the Commission’s website at www.usccr.gov.

The report examines the current and recent state of voter access and voting discrimination for

communities of color, voters with disabilities, and limited-English proficient citizens. It also

examines the enforcement record of the United States Department of Justice regarding the

provisions of the Voting Rights Act of 1965 since the Act’s last reauthorization in 2006, and

particularly since the Supreme Court decision in Shelby County v. Holder in 2013.

The Commission voted unanimously to reach key findings including the following: The right to

vote is the bedrock of American democracy. It is, however, a right that has proven fragile and in

need of both Constitutional and robust statutory protections. Racial discrimination in voting has

been a particularly pernicious and enduring American problem. Voter access issues,

discrimination, and barriers to equal access for voters with disabilities and for voters with limited

English proficiency continue today.

The Voting Rights Act works to dislodge and deter the construction of barriers by state and local

jurisdictions that block or abridge the right to vote of minority citizens. Especially following the

2013 Supreme Court decision in Shelby County v. Holder precluding operation of certain parts of

the Voting Rights Act, the narrowness of statutory mechanisms to halt discriminatory election

procedures before they are instituted has resulted in elections with discriminatory voting

measures in place. After an election takes place with discriminatory voting measures, it is often

impossible adequately to remedy the violation even if the election procedures are subsequently

overturned as discriminatory, not least because officeholders chosen under discriminatory

election rules have lawmaking power and the benefits of incumbency to continue those rules.

In states across the country, voting procedures that wrongly prevent some citizens from voting—

including but not limited to: voter identification laws, voter roll purges, proof of citizenship

UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 Pennsylvania Ave., NW y Suite 1150 y Washington, DC 20425 

www.usccr.gov
measures, challenges to voter eligibility, and polling places moves or closings—have been

enacted and have a disparate impact on voters of color and poor citizens.

The Commission unanimously voted for key recommendations, including that: Congress should

amend the Voting Rights Act to restore and/or expand protections against voting discrimination

that are more streamlined and efficient than existing provisions of the Act. In establishing the

reach of an amended Voting Rights Act coverage provision, Congress should include current

evidence of voting discrimination as well as evidence of historical and persisting patterns of

discrimination. A new coverage provision should account for evidence that voting discrimination

tends to recur in certain parts of the country. It also should take account of the reality that voting

discrimination may arise in jurisdictions that do not have extensive histories of discrimination

since minority populations shift and efforts to impose voting impediments may follow.

Importantly, Congress should provide a streamlined remedy to review certain changes with

known risks of discrimination before they take effect—not after potentially tainted elections.

The Commission also unanimously calls on the United States Department of Justice to pursue

more Voting Rights Act enforcement in order to address the aggressive efforts by state and local

officials to limit the vote of citizens of color, citizens with disabilities, and limited English

proficient citizens.

We at the Commission are pleased to share our views, informed by careful research and

investigation as well as civil rights expertise, to help ensure that all Americans enjoy civil rights

protections to which we are entitled.

For the Commission,

Catherine E. Lhamon 

Chair
Table of Contents i

TABLE OF CONTENTS

TABLE OF CONTENTS ..............................................................................................................I

ACKNOWLEDGEMENTS .........................................................................................................V

EXECUTIVE SUMMARY ...........................................................................................................7

CHAPTER 1: INTRODUCTION AND BACKGROUND......................................................15

History of Minority Voter Suppression..................................................................................15

Voting Rights Act of 1965 .....................................................................................................22

Summary of Major Voting Rights Act Provisions.................................................................26

Voting Rights Act Amendments and Reauthorizations .........................................................31

Overview of Past Reports of the U.S. Commission on Civil Rights Related to Voting Rights 

for Minorities..........................................................................................................................41

CHAPTER 2: THE SUPREME COURT’S SHELBY COUNTY V. HOLDER DECISION 

AND ITS MAJOR IMPACTS ....................................................................................................43

The Shelby County v. Holder Decision ..................................................................................43

Brief Summary of Historical Context......................................................................... 43

 What Were the Mechanics of Preclearance? ................................................................45

The Supreme Court’s Reasoning in Shelby County.................................................... 50

The Precise Holding.................................................................................................... 56

The Impact of Shelby County on Federal VRA Enforcement..................................... 57

Immediate Post-Shelby County Impact on Minority Voting Rights.......................................60

 North Carolina and Texas, Before and After the Shelby County Decision ..................60

North Carolina ............................................................................................................ 63

Texas........................................................................................................................... 74

CHAPTER 3: RECENT CHANGES IN VOTING LAWS AND PROCEDURES THAT 

IMPACT MINORITY VOTERS................................................................................................83

Voter Identification Laws.......................................................................................................83

Voter Fraud and Other Arguments.......................................................................................102
ii An Assessment of Minority Voting Rights Access

Current Voter Registration Issues ........................................................................................121

Documentary Proof of Citizenship ........................................................................... 125

Challenges of Voters on the Rolls ............................................................................ 135

Purges of Voters From the Rolls............................................................................... 144

Cuts to Early Voting.............................................................................................................158

Polling Place and Other Accessibility Issues.......................................................................167

Moving or Eliminating Polling Places...................................................................... 168

Language Access Issues............................................................................................ 183

Accessibility Issues for Voters with Disabilities...................................................... 193

CHAPTER 4: EXAMINING THE DATA..............................................................................199

Voter Registration and Turnout Statistics............................................................................199

Perspectives on Voter Turnout as a Measure of Discrimination .............................. 203

Recent Voter Turnout and Registration Patterns...................................................... 207

Voting Rights Act Litigation Trends Pre- and Post-Shelby County.....................................218

Trends in Incidents of Discrimination ...................................................................... 218

Trends in Section 2 and Section 5 Voting Rights Act Enforcement Actions........... 221

Successful Section 2 Litigation Between the 2006 Voting Rights Act Reauthorization 

and Shelby County Decision..................................................................................... 224

Successful Section 2 Litigation After the Shelby County Decision.......................... 226

Summary of Current Conditions............................................................................... 234

CHAPTER 5: EVALUATION OF THE DEPARTMENT OF JUSTICE’S 

ENFORCEMENT EFFORTS SINCE THE 2006 VRA REAUTHORIZATION AND THE 

2013 SHELBY COUNTY DECISION.......................................................................................239

DOJ Section 5 Preclearance Efforts (in formerly covered jurisdictions) (2006-2013)........244

DOJ Objections Under Section 5.............................................................................. 244

Requests for Further Information.............................................................................. 245

Declaratory Judgements (Non-Objections)............................................................... 245

Litigation Under Section 5........................................................................................ 246
Table of Contents iii

Types of Voting Changes Submitted ........................................................................ 248

Non-Section 5 DOJ VRA Lawsuits and Litigation-Based Enforcement Actions................250

Section 2 Cases......................................................................................................... 250

Language Access Cases and Enforcement Efforts in the Pre- and Post-Shelby County

Era ............................................................................................................................. 256

Section 208 Cases—The Right to Assistance........................................................... 260

Amici & Statements of Interest................................................................................. 263

Testimony Regarding DOJ Performance and Priorities............................................ 264

The Role of Federal Election Observers and Monitors ............................................ 268

Summary of Current Conditions............................................................................... 275

CHAPTER 6: FINDINGS AND RECOMMENDATIONS ..................................................277

COMMISSONERS’ STATEMENTS.......................................................................................287

Chair Catherine E. Lhamon Statement, in which Vice Chair Patricia Timmons-Goodson 

Concurs.................................................................................................................................287

Vice Chair Patricia Timmons-Goodson Statement, in which Chair Catherine E. Lhamon 

Concurs.................................................................................................................................289

Commissioner Debo P. Adegbile Statement, in which Chair Catherine E. Lhamon, ViceChair Patricia Timmons-Goodson, and Commissioner David Kladney Concur..................295

Commissioner Karen K. Narasaki Statement, in which Chair Catherine E. Lhamon, ViceChair Patricia Timmons-Goodson, and Commissioner David Kladney Concur..................301

Commissioner Michael Yaki Statement, in which Chair Catherine E. Lhamon Concurs ...307

Commissioner Gail Heriot Statement and Rebuttal .............................................................309

APPENDIX A: SUMMARY OF THE COMMISSION’S PAST VOTING RIGHTS 

BRIEFING REPORTS..............................................................................................................329

APPENDIX B: CONGRESSIONAL RESPONSES TO THE SHELBY COUNTY

DECISION..................................................................................................................................343

APPENDIX C: AUTOMATIC VOTER REGISTRATION.................................................349

APPENDIX D: U.S. COMMISSION ON CIVIL RIGHTS STATE ADVISORY 

COMMITTEES (SACS) RECENT WORK ON VOTING RIGHTS...................................355

APPENDIX E: CHARTS OF VOTING RIGHTS ISSUES BY STATE, COMPARING 

FORMERLY COVERED WITH NON-COVERED JURISDICTIONS .............................369
iv An Assessment of Minority Voting Rights Access

APPENDIX F: SECTION 2 CASES IN THE FIVE YEARS PRIOR TO SHELBY 

COUNTY .....................................................................................................................................373

APPENDIX G: FEDERAL OBSERVERS BY YEAR, STATE, AND COUNTY..............377

APPENDIX H: DOJ ELECTION MONITORS BY YEAR, STATE, AND COUNTY.....379

APPENDIX I: JURISDICTIONS COVERED UNDER SECTION 203 OF THE VOTING 

RIGHTS ACT, 1977-2016 .........................................................................................................383

APPENDIX J: COPIES OF INTERROGATORIES AND DOCUMENT REQUESTS

SENT BY THE COMMISSION TO THE DEPARTMENT OF JUSTICE.........................389
Acknowledgements v

ACKNOWLEDGEMENTS 

The Commission’s Office of Civil Rights Evaluation (OCRE) produced this report under the

direction of Katherine Culliton-González, Esq., Director of OCRE. With Dr. LaShonda Brenson,

Civil Rights Analyst, Culliton-González performed principal research and writing.

Commissioners and Commissioner Special Assistants Sheryl Cozart, Jason Lagria, Carissa

Mulder, Amy Royce, Rukku Singla, Alison Somin, and Irena Vidulovic conducted research,

edited, and examined the report.

The Commission’s General Counsel, Maureen Rudolph, reviewed and approved the report for

legal sufficiency.

David Mussatt and Latrice Foshee, in their role as the editorial review board, reviewed, edited, and

provided comments on report drafts.

Multiple State Advisory Committees (SACs) provided findings and recommendations to the

Commission on voting rights issues within their jurisdictions.

Undergraduate intern Valentina Cannavo from University of California at Berkeley and legal

interns Madeline Cook from George Washington University Law School, Sabrina Escalera

Flexhaug from American University Washington College of Law, Hayden Johnson from

Georgetown University Law Center, Aaron Hurd from Indiana University Maurer School of Law,

Aime Joo from Harvard Law School, Zachary Lutz from Harvard Law School, Scot Pollins from

George Washington University Law School, Matt Robinson from University of Southern

California School of Law, and Shimeng Zhang from Georgetown University Law

Center provided valuable research and writing assistance.
vi An Assessment of Minority Voting Rights Access

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Chapter 1: Introduction and Background 7

EXECUTIVE SUMMARY 

Congress has directed the United States Commission on Civil Rights (“the Commission”) to

annually examine “Federal civil rights enforcement efforts.”1 In this report, the Commission

examines minority voting rights access through the lens of the federal government’s enforcement

of the Voting Rights Act (VRA) of 1965 since the 2006 reauthorization of its special provisions.2

On February 2, 2018, the Commission held a field briefing in Raleigh, North Carolina.

3 The

Commission heard testimony from 23 voting rights experts, including former United States

Department of Justice (DOJ or Department) officials from both Republican and Democratic

administrations, state election officials, and voting rights experts and advocates.

4 The Commission

also heard from 33 members of the public, and received 31 post-briefing written statements in

connection with this investigation. The Commission invited officials from relevant offices within

the DOJ, but they declined the Commission’s invitation to testify at our field briefing. The

Department provided data and documents, which are discussed in Chapter 5. The Department also

reviewed a draft of this report and provided comments. The Commission draws this report from

the above-referenced sources and independent research. Further, the Commission has considered

and been informed by voting rights reports from its State Advisory Committees (SACs).5

Since its formation in 1957, the Commission has played a central role in documenting and

explaining the need to enact, and then maintain, a strong federal VRA. In the late 1950s and early

1960s, the Commission reported on the pervasive discrimination in voting that then existed

 

1 42 U.S.C. § 1975a(c)(1). 2 The “special provisions” of the VRA are temporary provisions that were set to expire and were reauthorized over 

time. See Chapter 1, Discussion and Sources cited therein at notes 101-48, infra. The 2006 VRA Reauthorization 

extended Section 4, which was the criteria requiring preclearance of all voting changes in certain jurisdictions, and 

Section 203, which provided for language access according to a threshold formula of minority voters unable to fully 

understand the ballot in English, from 2007 to 2032. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting 

Rights and Reauthorization Amendments Act of 2006, Pub. L. 109-246. 120 Stat. 577 at § 4 (amending 52 U.S.C. § 

10303(a)(7)-(8) (formerly 42 U.S.C. § 1973b(a)) and extending the preclearance criteria for 25 years, with an 

evaluation required after 15 years); § 7 (amending 52 U.S.C. § 10503(b)(1) (formerly 42 U.S.C. § 1973aa-1a(b)(a))

so that Section 203 is in force until August 23, 2032). 

3 U.S. Commission on Civil Rights, “Commission Briefing: Voting Rights, Morning Session, Raleigh, NC 2/2/18,” 

Youtube Video, posted Feb. 2, 2018, https://www.youtube.com/watch?v=eSb1vfk3WyM. 

4 Press Release, U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS BRIEFING SCHEDULE (Feb. 2, 2018), 

http://www.usccr.gov/press/2018/01-19-PR-Briefing.pdf [hereinafter Press Release, U.S. COMM’N ON CIVIL RIGHTS, 

VOTING RIGHTS]. U.S. Commission on Civil Rights, “Commission Briefing: Voting Rights, Afternoon Session 

Session, Raleigh, NC 2/2/18,” Youtube Video, posted Feb. 2, 2018, https://youtu.be/dMCicLUn0Sc; U.S. 

Commission on Civil Rights, “Commission Briefing: Voting Rights, Public Comment Session, Raleigh, NC 2/2/18,” 

Youtube Video, posted Feb. 2, 2018, https://youtu.be/CKNDXMRYxig. 

5 See, e.g., Advisory Memorandum from Alaska State Advisory Committee on Alaska Native Voting Rights to the 

U.S. Comm’n on Civil Rights, (Mar. 27, 2018) http://www.usccr.gov/pubs/2018/05-25-AK-Voting-Rights.pdf; see 

also New Hampshire Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in New Hampshire, 

(Mar. 2018), https://www.usccr.gov/pubs/2018/05-16-NH-Voting-Rights.pdf [hereinafter New Hampshire, Voting 

Rights Report]. For summaries of each SAC briefing and/or report issued in the last two years, relevent to voting 

rights, see Appendix D.
8 An Assessment of Minority Voting Rights Access

throughout most of the South and led to the passage of the VRA in 1965.6 The Commission further

reported on initial efforts to enforce the VRA immediately after its passage, and provided reviews

and analyses that assisted Congress in deciding to extend and expand the Act’s temporary

provisions in 1970, 1975, and 1982.

One of the central components of the VRA of 1965 was the preclearance process. As adopted,

under the VRA’s Sections 4 and 5, preclearance required certain jurisdictions with discriminatory

voting laws and practices to seek federal pre-approval of any voting changes. Specifically, in

jurisdictions that were “covered” for preclearance, the federal government could prevent any

changes that were enacted with a discriminatory intent or had a discriminatory retrogressive effect,

as measured against the status quo.

Moreover, under the VRA, the federal government could send federal examiners or observers to

monitor elections inside the polls, and federal examiners could also register voters. Sections 4 and

5 were provisions that, unlike the permanent nationwide antidiscrimination prohibition under

Section 2 of the VRA, had to be reauthorized at specified intervals to continue in force. After the

passage of the VRA, black voter registration increased significantly in the covered jurisdictions.

With strong bipartisan support, Congress reauthorized the VRA five times, each time under a

different Republican president. Over the course of these reauthorizations, Congress expanded the

preclearance provisions of the VRA to cover more jurisdictions and to provide additional

protections—such as requiring greater voting access and assistance for minority voters with

limited-English proficiency. The preclearance provisions were last reauthorized on July 27, 2006.

In 2006, Congress reauthorized preclearance for an additional 25 years. The 2006 VRA

Reauthorization record included 15,000 pages of record evidence of ongoing discrimination in

voting.

7 Federal courts later described the Congressional record as follows: “The compilation

presents countless ‘examples of flagrant racial discrimination’ since the last reauthorization;

Congress also brought to light systematic evidence that ‘intentional racial discrimination in voting

remains so serious and widespread in covered jurisdictions that [S]ection 5 preclearance is still

needed.”8 In addition, Congress found that as “registration and voting of minority citizens

increase[d]..., other measures may be resorted to which would dilute increasing minority voting

strength.”9

 

6 U.S. COMM’N ON CIVIL RIGHTS, REPORT OF THE U.S. COMMISSION ON CIVIL RIGHTS XIII (1959), 

https://www.law.umaryland.edu/marshall/usccr/documents/cr11959.pdf [hereinafter U.S. COMM’N ON CIVIL RIGHTS

1959]. The Commission received its first voting complaint on Aug. 14, 1958. Within a few days, the Commission 

authorized a field investigation and promptly ordered such investigations of the other voting complaints that came in 

during succeeding months. Id. at 54. 7 H.R. REP. NO. 109-478, at 5 and 11-12 (2006). 8 Shelby Cty., Ala. v. Holder, 570 U.S. 529, 565 (2013) (Ginsburg, J., dissenting) (citing Northwest Austin Municipal 

Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009)); see also Shelby Cty., Ala. v. Holder, 679 F.3d 848, 866 

(D.C. Cir. 2012). 9 City of Rome v. United States, 446 U.S. 156, 181 (1980) (quoting H.R. REP. NO. 94-196, at 10 (1975)). 
Chapter 1: Introduction and Background 9

On June 25, 2013, in the case of Shelby County v. Holder, the Supreme Court ruled that the VRA

unconstitutionally determined which jurisdictions needed the federal government’s pre-approval

to change their voting procedures.

10 Reasoning that minority voter access had progressed

significantly, the Court concluded that the federal government should treat states equally. The

Court declared that Congress could no longer use data from the past to determine which

jurisdictions must seek federal approval to change their voting laws. The Court stated that

Congress could adopt a different approach based on current conditions. While several legislative

proposals have been introduced in both chambers of Congress, as of June 25, 2018,11 Congress has

not enacted legislation to restore the preclearance process.

While the Shelby County decision did not find that Section 5 was unconstitutional, by ruling that

the formula in Section 4 was unconstitutional, the decision removed the mechanism for carrying

out preclearance. In practice, this means that until Congress passes a new preclearance formula,

previously covered jurisdictions are not currently required to obtain preclearance before making

changes in voting laws, unless they are covered by a separate court order.12

Since Shelby County, jurisdictions have made changes to their voting procedures that would not

have received the federal government’s approval. For example, some jurisdictions—including

both formerly covered and non-Section 5 covered jurisdictions—have required strict forms of

voter ID, purged voter rolls, reduced polling locations, required documentary proof of citizenship

to register to vote, and cut early voting, among other contested voting changes that, on the specific

facts in those states, operate to denigrate minority voting access in ways that would have violated

preclearance requirements if they were still in effect. Data indicate that these voting procedure

changes disproportionately limit minority citizens’ ability to vote.

After Shelby County, the federal government has limited tools to address these potentially

discriminatory voting procedures and hardly any tools to prevent voting discrimination before it

takes place. Prior to Shelby County, the DOJ primarily enforced Section 5 of the VRA by objecting

to changes in voting procedures, though jurisdictions could also seek preclearance from a threejudge federal court. After Shelby County, under Section 2 of the VRA, the federal government and

private groups can still file lawsuits to argue that voting changes would reduce minority citizens’

ability to vote, and these lawsuits have increased fourfold since the Shelby County decision.

However, compared to the Section 5 preclearance process, Section 2 reverses the burden of proof:

the federal government or private litigants must now prove that any voting procedure changes

would hurt minority voters, while those measures are in place. Moreover, Section 2 lawsuits often

take years and therefore do not prevent elections from occurring under procedures later found to

be discriminatory. DOJ and private litigants can also file lawsuits to enforce Sections 4, 203, and

208 in order to ensure access for voters with disabilities and voters with limited-English

proficiency. Outside of lawsuits, other VRA enforcement tools have also been limited, as the DOJ

has interpreted Shelby County to mean that it can now only send election observers if ordered by

 

10 Shelby Cty., 570 U.S. at 557. 11 The Commission unanimously approved the text of this report and its findings and recommendations on June 26, 

2018. 12 U.S. Dep’t of Justice, Fact Sheet on Justice Department’s Enforcement Efforts Following Shelby County 

Decision, https://www.justice.gov/crt/file/876246/download (last accessed July 26, 2018) [hereinafter DOJ Fact 

Sheet]. 
10 An Assessment of Minority Voting Rights Access

a court. This means the DOJ is without a critical source of evidence in voting discrimination, as

election observers are authorized to enter poll sites and witness firsthand actual behavior at the

polls on Election Day.

During the time period reviewed by this report’s investigation, the DOJ has litigated fewer VRA

enforcement lawsuits than private groups. The DOJ has filed four of the 61 Section 2 cases since

the Shelby County decision, one case about the VRA’s required language access measures, and no

cases about the right to assistance in voting. At the Commission’s briefing, experts disagreed on

whether the DOJ has failed to provide necessary enforcement or whether voter discrimination has

decreased. While private groups have filed and continue to file suits, VRA litigation can be

challenging for private parties due to their complexity and the significant resources needed to

litigate these cases.

While voter turnout is an imperfect indicator of voter discrimination, data indicate that minority

voter turnout still lags behind white voter turnout. Moreover, voter turnout among non-black

minority groups lags significantly behind white voter turnout. Similarly, minority voter

registration lags behind white voter registration, especially among non-black minority groups.

Compared to white voters, data show that minority citizens are more likely to say that their reason

for not registering to vote is due to registration requirements or difficulties, as opposed to

disinterest in the political process.

The following report consists of five chapters, followed by the Commission’s findings and

recommendations. Chapter 1 (“Introduction and Background”) discusses the relevant history of

minority voting rights in the United States, from the time of the 14th and 15th Amendments to the

U.S. Constitution to the present day. Chapter 1 also explains the VRA’s most significant

protections, and summarizes all subsequent reauthorizations including the 2006 VRA

Reauthorization, while Appendix A summarizes the Commission’s historical work on voting

rights.

Chapter 2 (“The Shelby County Decision and Its Major Impacts”) examines the impact of the

Supreme Court’s June 25, 2013 decision invalidating the VRA’s preclearance provisions.13 This

chapter examines the prior VRA preclearance regime and summarizes the status of minority voting

rights after the 2006 VRA Reauthorization and prior to the Shelby County decision suspending

preclearance. Chapter 2 then discusses the Supreme Court’s decision, its reasoning that conditions

had dramatically changed and its reliance on the principle of equal state sovereignty, as well as the

precise language of the decision regarding any future preclearance regimes, and the decision’s

impact on federal VRA enforcement.

This chapter also briefly studies the impact of Shelby County in North Carolina and Texas, where

litigation ensued under one of the remaining provisions of the VRA, Section 2, which is the

nationwide ban on discriminatory voting procedures. Although there was discrimination in voting

in both states prior to Shelby County, data from litigation in both states show that due to the loss

of preclearance after Shelby County, elections were held with voting procedures that federal courts

of appeals later held to be intentionally racially discriminatory.

 

13 Shelby Cty., 570 U.S. at 557. 
Chapter 1: Introduction and Background 11

Chapter 3 examines four ways in which access to the ballot for minority voters has been impacted

in the time period covered by this report (from the 2006 VRA Reauthorization to the present).

These are: (i) strict voter ID laws, (ii) greater restrictions on voter registration procedures, (iii) cuts

to early voting, and (iv) voter access to polling places, language access, and access for persons

with disabilities. When relevant, this chapter discusses litigation and other actions brought to

address VRA issues, and the results of those methods. Some of the measures examined are

statewide, and others are local.

Chapter 3 provides further detail by examining various types of voter ID laws, and their impact on

minority voters. This chapter then examines arguments that have been used to justify voter ID laws

and measures restricting voter registration. The arguments examined include allegations of inperson voter fraud, double voting, bloated voting rolls, noncitizen voting, and partisanship.

Chapter 3 also examines changes in voter registration procedures that have been justified by these

same arguments, including documentary proof of citizenship requirements, challenges to voters

on the rolls, and removal of voters from the rolls. It then examines cuts to early voting as well as

various polling place and voter accessibility issues. Finally, Chapter 3 summarizes testimony and

information the Commission received from its SACs regarding recent voting rights issues.

Appendix D includes further information about the proceedings and relevant findings from SAC

reports and investigations.

Research in Chapters 2 and 3 of this report shows the repeated and challenging nature of ongoing

discrimination in voting in states previously covered by Section 5 and in other states. These

chapters also analyze some emerging national patterns of voter registration and election

administration practices that have a suppressive impact on minority voters, such as cuts to early

voting, certain types of voter purging, strict voter ID requirements, and lack of accessibility.

Appendix E provides a chart showing where these types of potentially discriminatory measures

have been put in place, illustrating their incidence across the nation, while also comparing formerly

covered jurisdictions with states where the preclearance formula did not apply. The data show a

higher incidence of these types of potentially discriminatory measures in the formerly covered

jurisdictions.

Chapter 4 (“Examining the Data”) reviews data about minority voters’ access to the ballot from

the 2006 VRA Reauthorization, until the Shelby County decision and up until the present time.

The chapter also examines minority voter turnout and registration over time, while also noting that

turnout is not the only measure of whether current conditions evidence ongoing discrimination in

voting. This chapter also includes research showing that current voter participation rates among

Asian, Latino, and Native American communities are lower than the level of turnout that the

drafters of the 1965 VRA considered to be indicia of discrimination.

Chapter 4 then provides an analysis of data regarding VRA enforcement measures within the

particular time frame of this report. Quantitative analysis of the data reveals several trends. One

key trend is that there are more successful Section 2 cases concentrated in the formerly covered

jurisdictions. Moreover, comparing the five years prior to and five years after the Shelby County

decision shows that the number of successful Section 2 cases have quadrupled in the latter time

period. The data also demonstrate an inaccessibility of alternative protections such as preliminary

injunctions and judicial preclearance.
12 An Assessment of Minority Voting Rights Access

Chapter 5 (“Evaluation of the DOJ’s VRA Enforcement Actions since the 2006 VRA

Reauthorization”) examines the DOJ’s VRA enforcement efforts since the 2006 VRA

reauthorization to the present. Like Chapter 4, this chapter provides a number of figures and graphs

to show trends in VRA enforcement over time. The Commission’s study of the DOJ’s VRA

enforcement actions during this time period shows that there has been a sharp decrease in actions

brought to enforce Section 2 of the VRA, as well as similarly sharp decreases in enforcing the

provisions of the VRA that are intended to protect the voting rights of voters with limited-English

proficiency and voters with disabilities. This chapter’s quantitative analysis also shows that the

number of DOJ enforcement actions are far fewer than the amount of successful VRA enforcement

conducted by nonprofit groups on behalf of minority voters in the post-Shelby County era.

Chapter 6 of this report provides the findings and recommendations. To conclude the Executive

Summary, the Commission highlights the following findings and recommendations made herein:

Findings

The right to vote is the bedrock of American democracy. It is, however, a right that has proven

fragile and in need of both Constitutional and robust statutory protections. Racial discrimination

in voting has proven to be a particularly pernicious and enduring American problem. Voter access

issues, discrimination, and barriers to equal access for voters with disabilities and for voters with

limited-English proficiency continue today.

The VRA works to dislodge and deter the construction of barriers by state and local jurisdictions

that block or abridge the right to vote of minority citizens.

Preclearance proved a strong deterrent against state and local officials seeking to suppress the

electoral power of growing minority communities through the enactment of policies and

procedures that violated the protections of the VRA.

In Shelby County, the Supreme Court acknowledged ongoing voting discrimination, and noted that

Congress may draft new coverage criteria for preclearance based on current conditions that do not

treat states unequally based on past conditions of discrimination.

Without Section 5 preclearance, the DOJ has not been able to object to and prevent implementation

of laws that courts later determined to have been specifically intended to limit black and Latino

Americans’ right to vote.

The Shelby County decision had the practical effect of signaling a loss of federal supervision in

voting rights enforcement to states and local jurisdictions.

The voting laws implemented in North Carolina and Texas immediately following the Shelby

County decision are examples of the direct impact of the decision on the behavior of state and local

officials. In both states, after prolonged litigation, the changes were eventually found to be

discriminatory. A review of these voting changes and the litigation challenging them show:

x Changes that were previously not precleared by the federal government under Section 5 in 

covered states were immediately implemented;

x Federal courts held that the laws were motivated by an intent to discriminate against 

minority voters, in one case, “with surgical precision;”
Chapter 1: Introduction and Background 13

x These voting changes remained in place through several elections, though courts eventually 

found that the changes were motivated by racial discrimination and/or had discriminatory 

effects; and

x Statewide discriminatory voting changes adversely impacted the rights of large numbers 

of eligible voters, and future judicial preclearance or “bail in” was not ordered by the courts 

in the wake of findings of intentionally racially discriminatory election changes.

In the face of ongoing discrimination in voting procedures enacted by states across the country,

enforcement and litigation under Section 2 of the VRA is an inadequate, costly, and often slow

method for protecting voting rights.

The narrowness of the remaining mechanisms to halt discriminatory election procedures before

they are instituted has resulted in elections with discriminatory voting measures in place.

After an election with discriminatory voting measures in place, it is often impossible to adequately

remedy the violation even if the election procedures are subsequently overturned as discriminatory.

Officeholders chosen under discriminatory election rules have lawmaking power, and the benefits

of incumbency to continue those rules perpetuate their continued election.

In states across the country, voting procedures that wrongly prevent some citizens from voting

have been enacted and have a disparate impact on voters of color and poor citizens, including but

not limited to: restrictive voter ID laws, voter roll purges, proof of citizenship measures, challenges

to voter eligibility, and polling places moves or closings.

Because of the nature of voting rules being broadly applicable to all eligible voters, a single change

in law, procedure, or practice can disproportionately affect large numbers of eligible voters and

possibly discriminate against certain groups of people whose voting rights are protected by the

VRA.

Failure to provide or make available legally required language access voting materials and to

comply with Section 208’s requirement that allows voters to bring an assistant of their choosing

imposes unnecessary barriers to voting for limited-English proficient Asian, Latino, and Native

American voters.

Section 208 of the VRA has not been well-utilized or enforced. The DOJ appears to have limited

its enforcement of Section 208 to language access cases, and failed to provide adequate guidance

or enforcement for compliance with Section 208 in support of voters with disabilities.

Recommendations

Because of the depth of voting discrimination that continues across the nation today, citizens need

strong, proactive federal protections—in statute and in enforcement—for the right to vote.

Congress should amend the VRA to restore and/or expand protections against voting

discrimination that are more streamlined and efficient than Section 2 of the VRA.

x In establishing the reach of an amended VRA coverage provision, Congress should include 

current evidence of voting discrimination as required by Shelby County as well as evidence 

of historical and persisting patterns of discrimination. A new coverage provision should 
14 An Assessment of Minority Voting Rights Access

account for evidence that voting discrimination tends to recur in certain parts of the 

country. It also should take account of the reality that voting discrimination may arise in 

jurisdictions that do not have extensive histories of discrimination, since minority 

populations shift and efforts to impose voting impediments may follow.

x Congress should invoke its powers under the Reconstruction Amendments and the 

Elections Clause to ground the new provisions upon the strong federal interest in protecting 

the right to vote in federal elections.

Congress should consider but not exclusively base any new coverage provision for Section 5 on

turnout or registration statistics for various demographic groups.

x Congress should provide a streamlined remedy to review certain changes with known risks 

of discrimination before they take effect—not after potentially tainted elections.

x Congress should require greater transparency and effective public, including web-based, 

disclosure of voting changes affecting federal elections, and do so sufficiently in advance 

of elections so that voters are less likely to be surprised by changes and able to challenge 

those that have a discriminatory impact that would violate voting rights and election-related 

laws.

x Congress should take account of the range and geographic dispersion of racial and language 

minorities in any new geography-based coverage rule, for example, by adding elements 

that identify certain practices that may require closer preclearance.

Private litigants play a vital role as “private attorneys general” enforcing the VRA, however,

litigation, particularly without Section 5, requires significant resources that only the federal

government is able to expend. The DOJ should pursue more VRA enforcement in order to address

the aggressive efforts by state and local officials to limit the vote of minority citizens and the many

new efforts to limit access to the ballot in the post-Shelby County landscape.
Chapter 1: Introduction and Background 15

CHAPTER 1: INTRODUCTION AND BACKGROUND

This chapter briefly reviews the history of racial discrimination in the United States, the

relationship between citizenship and voting rights, the passage of the Voting Rights Act of 1965

(VRA), and its subsequent reauthorizations. The chapter then provides a summary of the VRA

sections examined in this report: Sections 2, 4, 5, 203, and 208. This historical chapter also briefly

examines how voting turnout and registration rates by race have changed over time. Finally, this

chapter also includes analyses of the Commission’s prior reports on voting rights, which are also

summarized in Appendix A.

History of Minority Voter Suppression

Since voting rights stem from citizenship, an understanding of the historical exclusion of people

of color from American citizenship is needed to understand the history of minority voting rights

in the United States. The country was founded with the express recognition of slavery; in 1787,

the Constitution provided representation of “the whole number of free Persons,” including

indentured servants (most of whom were white), but excluded “Indians not taxed,” and it counted

slaves as only three-fifths of a person.14 In 1857, in the case of Dred Scott v. Sanford, the Supreme

Court held that even if slaves became free, former slaves and their descendants were legally

considered to be only three-fifths of a person and were not recognized as citizens.15 After the Civil

War, in 1865, the 13th Amendment to the Constitution abolished slavery.16 In 1868, the 14th

Amendment clarified that every person naturalized or born in the U.S. is a citizen.17 The 14th

Amendment also forbids states from denying any person due process of law or equal protection of

the laws.18 In 1870, the ratification of the 15th Amendment guaranteed all U.S. citizens the right to

vote regardless of “race, color, or previous condition of servitude.”19

History demonstrates that Reconstruction laws were initially successful in expanding access to the

ballot box for recently freed slaves, and in providing voter protections for African-American

citizens by outlawing any action taken to suppress their vote.20 The Reconstruction Era

amendments galvanized African Americans’ political participation.21 The political arena was the

“only area where black(s) and white(s) encountered each other on a basis of equality—sitting

 

14 U.S. Cᴏɴsᴛ. art. I, § 2, cl. 3. 15 60 U.S. 393 (1857). 16 U.S. Cᴏɴsᴛ. amend. XIII, § 1. 17 U.S. Cᴏɴsᴛ. amend. XIV, § 1.

18 Id.

19 U.S. Cᴏɴsᴛ. amend. XV, § 1. 20 Gabriel J. Chin, The Voting Rights Act of 1867: The Constitutionality of Federal Regulation of Suffrage During 

Reconstruction, 82 N.C. L. REV. 1581, 1582 (2004). 21 Eric Foner, Rights and the Constitution in Black Life During the Civil War and Reconstruction, 74 J. AM. HIST.

863, 883 (1987) [hereinafter Foner, Rights and the Constitution]. Also, according to this study, while women were 

not allowed to hold political office or vote, black women were still politically active, and took part in rallies, 

parades, and mass meetings, and they formed their own auxiliaries to aid in electioneering. Id. at 878. 
16 An Assessment of Minority Voting Rights Access

alongside one another on juries, in legislatures, and at political conventions; voting together on

[E]lection [D]ay.”22 As historian Eric Foner has documented, “[b]y the early 1870s, biracial

democratic government . . . was functioning effectively in many parts of the South, and [black]

men only recently released from bondage were exercising political power.”23 The Reconstruction

Amendments led to black voter registration rates surpassing white registration rates in Louisiana,

Mississippi, and South Carolina.24 In other states, such as Alabama and Georgia, black citizens

were nearly 40 percent of all registered voters.25 Over 700,000 black citizens voted for the first

time in the 1868 presidential election.26 In fact, during Reconstruction, not deterred by violence,

black voter turnout in many elections exceeded 90 percent.

27

In addition to a significant increase in black voter registration and turnout during Reconstruction,

black citizens were elected to state legislatures in former confederate states.28 In South Carolina,

black legislators constituted a majority in the lower house of the legislature.29 In 1869, at the

national level, over 20 black citizens, some of whom were former slaves, were elected to the U.S.

Congress.

30

The surge in black political power during Reconstruction was fleeting. The Reconstruction

Amendments ensured the voting rights of African-American men and the federal government’s

role in protecting these rights, but after the Compromise of 1877 and the removal of federal troops

from the South,31 concerted efforts by southern states to subvert the Reconstruction Amendments

and civil rights laws of the time resulted in a backlash limiting access to voting for AfricanAmerican citizens.32

During this time frame, the Supreme Court was also considering what the 14th and 15th

Amendments meant for other communities of color. In 1884, the Supreme Court held that Native

Americans who did not surrender their tribal citizenship and have it accepted by the United States

 

22 Id. at 878. 23 Anderson Bellegarde François, To Make Freedom Happen: Shelby County v. Holder, the Supreme Court, and the 

Creation Myth of American Voting Rights, 34 N. ILL. U. L. REV. 529, 543 (2014) (quoting Eric Foner, Forever Free: 

The Story of Emancipation and Reconstruction 129 (2005)) [hereinafter François, To Make Freedom Happen].

24 Id. 25 Id.

26 Id. at 542. 27 Foner, Rights and the Constitution, supra note 21, at 878. 28 François, To Make Freedom Happen, supra note 23, at 543.

29 Id. 30 Id.

31 The Gilder Lehrman Inst. of Am. Hist., Compromise of 1877, GILDERLEHRMAN.ORG (last accessed May 25, 2018) 

https://new.gilderlehrman.org/history-by-era/reconstruction/timeline-terms/compromise-1877 (noting that the 

Compromise of 1877 was an informal agreement regarding the disputed 1876 Presidential Election that became 

contingent upon Florida, Louisiana, and South Carolina. Seeing this, Republicans who supported Republican 

Rutherford Hayes met with moderate southern Democrats to negotiate the removal of federal troops in the South to 

ensure Hayes’ victory).

32 François, To Make Freedom Happen, supra note 23, at 544.
Chapter 1: Introduction and Background 17

through naturalization were not U.S. citizens.33 The language of the relevant Supreme Court

opinion shows that even after the Reconstruction Amendments, the belief remained that people of

color were not “civilized” enough to be United States citizens.34 Similarly, despite the guarantees

of the 14th Amendment, it was not until 1898 and the Supreme Court’s decision in United States

v. Wong Kim Ark that it was clear that children of nonwhite immigrants were entitled to birthright

citizenship.35 And it was not until 1924, when Congress passed the Indian Citizenship Act, that

Native Americans were entitled to U.S. citizenship and voting rights (and that this entitlement did

not impair the individual’s right to remain a tribal member).36

Reliance upon tactics to suppress black voting rights expanded during the Jim Crow Era (between

the end of Reconstruction in 1877 and the beginning of the 1950s Civil Rights Movement),

37 and

black voter registration subsequently declined dramatically.38 Jim Crow laws were pervasive and

controlled many aspects of life for African Americans—especially equal access to citizenship.

39

In Mississippi, during Jim Crow, voter suppression was based on a new state constitution enacted

in 1890, which specifically intended to exclude African Americans from political participation.40

Since the 15th Amendment did not permit direct disenfranchisement, Mississippi instead required

an annual poll tax that disparately burdened blacks, and a literacy test that “required a person

seeking to register to vote to read a section of the state constitution and explain it to the county

clerk . . . who was always white, [and who] decided whether a citizen was literate or not.”41 This

effectively excluded “almost all black men, because the clerk would select complicated technical

passages for them to interpret. By contrast, the clerk would pass whites by picking simple

sentences in the state constitution for them to explain.”42

 

33 Elk v. Wilkins, 112 U.S. 94, 103 (1884). 34 Id. at 106-07 (“The national legislation has tended more and more toward the education and civilization of the 

Indians, and fitting them to be citizens. But the question of whether any Indian tribes, or any members thereof, have 

become so far advanced in civilization that they should be let out of the state of pupilage, and admitted to the 

privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are and 

whose citizens they seek to become, and not by each Indian for himself.”). 35 169 U.S. 649, 705 (1884). 36 Indian Citizenship Act, Pub. L. No. 68-175, 43 U.S. Stat. 253 (1924) (codified at 8 U.S.C. § 1401(b)). 37 Jim Crow was the name of the racial segregation system that operated mostly in southern and border states, 

between 1877 and the mid-1960s. See, e.g., USC Gould School of Law, A Brief History of Civil Rights in the United 

States: Jim Crow Era, https://onlinellm.usc.edu/a-brief-history-of-jim-crow-laws/ (last accessed July 25, 2018). 38 See, e.g., Smithsonian Nat’l Museum of Am. Hist., White Only: Jim Crow in America (last accessed June 21, 

2018), http://americanhistory.si.edu/brown/history/1-segregated/white-only-1.html (“In Mississippi, fewer than 

9,000 of the 147,000 voting-age African Americans were registered after 1890. In Louisiana, where more than 

130,000 black voters had been registered in 1896, the number had plummeted to 1,342 by 1904.”). 39 Public Broadcasting Service (PBS), Freedom Riders: Jim Crow Laws, An American Experience, PBS,

http://www.pbs.org/wgbh/americanexperience/features/freedom-riders-jim-crow-laws/ (last accessed May 23, 2018). 40 Constitutional Rights Foundation, Race and Voting in the Segregated South, CRF http://www.crf-usa.org/blackhistory-month/race-and-voting-in-the-segregated-south (last accessed May 23, 2018) [hereinafter Constitutional 

Rights Foundation, Race and Voting]. 41 Id. 42 Following hearings in February 1965 in Mississippi, the Commission found that Mississippi’s white applicants 

might be asked, for example, to copy out and interpret:
18 An Assessment of Minority Voting Rights Access

In addition to poll taxes and literacy tests, other mechanisms to prevent African Americans from

voting were instituted. These practices included grandfather clauses, excluding prior (white)

registrants from the new strict rules, along with violence and intimidation of blacks attempting to

register and vote.43 These laws resulted in decreasing black voter registration.44 For example,

literacy tests effectively restricted the right to vote of African Americans, because at that time over

70 percent of black citizens were illiterate, whereas less than 20 percent of white citizens were

illiterate.45 Moreover, black citizens were subjected to more complex and difficult literacy tests

than white citizens were.46 Additionally, during this era, segregation was not only in the South, or

only against blacks. In New York, newly arriving Puerto Rican citizens had their voting rights

limited by highly complex English-literacy tests.47

 

ARTICLE 12 Section 240. All elections by the people shall be by ballot. (MISS. CONST. art. 12, § 240). 

In contrast, the Commission found that Mississippi’s African-American applicants might be asked, for example, 

to interpret: 

ARTICLE 7 Section 182. The power to tax corporations and their property shall never be surrendered 

or abridged by any contract or grant to which the state or any political subdivision thereof may be a 

party, except that the Legislature may grant exemption from taxation in the encouragement of 

manufactures and other new enterprises of public utility extending for a period of not exceeding ten 

(10) years on each such enterprise hereafter constructed, and may grant exemptions not exceeding ten 

(10) years on each addition thereto or expansion thereof, and may grant exemptions not exceeding ten 

(10) years on future additions to or expansions of existing manufactures and other enterprises of public 

utility. The time of each exemption shall commence from the date of completion of the new enterprise, 

and from the date of completion of each addition or expansion, for which an exemption is granted. 

When the Legislature grants such exemptions for a period of ten (10) years or less, it shall be done by 

general laws, which shall distinctly enumerate the classes of manufactures and other new enterprises of 

public utility, entitled to such exemptions, and shall prescribe the mode and manner in which the right 

to such exemptions shall be determined. (MISS. CONST. art. 12, § 240); see also U.S. COMM’N ON CIVIL 

RIGHTS, VOTING IN MISSISSIPPI 16-17 (1959), 

https://www.law.umaryland.edu/marshall/usccr/documents/cr12v94.pdf, [hereinafter U.S. COMM’N ON 

CIVIL RIGHTS, MS 1965]. 

43 Warren M. Christopher, The Constitutionality of the Voting Rights Act of 1965, 18 STAN. L. REV. 1, 1 (1965). 44 See, e.g., Smithsonian, supra note 38 (“In the former Confederacy and neighboring states, local governments 

constructed a legal system aimed at re-establishing a society based on white supremacy. African American men 

were largely barred from voting. Legislation known as Jim Crow laws separated people of color from whites in 

schools, housing, jobs, and public gathering places. Denying black men the right to vote through legal maneuvering 

and violence was a first step in taking away their civil rights. Beginning in the 1890s, southern states enacted 

literacy tests, poll taxes, elaborate registration systems, and eventually whites-only Democratic Party primaries to 

exclude black voters. The laws proved very effective. In Mississippi, fewer than 9,000 of the 147,000 voting-age 

African Americans were registered after 1890. In Louisiana, where more than 130,000 black voters had been 

registered in 1896, the number had plummeted to 1,342 by 1904.”). 45 Christopher, supra note 43, at 2. 46 See, e.g., Constitutional Rights Foundation, Race and Voting, supra note 40. 47 Juan Cartagena, Latinos and Section 5 of the Voting Rights Act: Beyond Black and White, 18 NAT’L BLACK L.J.

201, 206 (2005); see also Voting Rights: Hearings on H.R. Doc. No. 6400 Before Subcomm. No. 5 of the House 

Comm. on the Judiciary, 89th Cong., 1st Sess. 508-17 (1965) (statement of U.S. Rep. Herman Badillo, Judge Vidal 

Santaella, and community activist Gilberto Gerena-Valentín); see also United States v. Cty. Bd. of Elections of 
Chapter 1: Introduction and Background 19

During the first half of the 20th Century, voting rights litigation did result in some increased access

to the ballot for communities of color. After the Supreme Court invalidated the “white primary”

in 1944 in the case of Smith v. Allwright,

48 black registration and participation rates began to

increase across the South.49 Since Texas law also barred Mexican Americans from the Democratic

Party primary, Latino participation may have also risen, but there is little data about Latino voters

in this era.50

Smith v. Allwright51 was also an example of how some states defied federal court orders. The

Supreme Court had first ruled that Texas’ 1923 all-white primary law violated the 14th Amendment

in 1927,

52 and then again in 1932.53 And, “in 1953, the Court once again confronted an attempt by

Texas to ‘circumven[t]’ the 15th Amendment by adopting yet another variant of the all-white

primary[.]”54

At the beginning of the civil rights movement and with more aggressive litigation, black

registration rates increased by 6 percentage points from 1947 to 1950 across the South—yet by the

mid-1950s, 75 percent of African Americans were not registered to vote.55 The registration rate of

black citizens in Mississippi was still less than 5 percent, and in states like Arkansas, Florida,

Louisiana, and Texas, it was about one third.56 At this time, it also became very clear that even if

discriminatory state laws were overturned by successful litigation, nearly every law that was struck

down as discriminatory would be replaced with another one.

57 In light of this, Congress began to

 

Monroe Cty., 248 F. Supp. 316, 317 (W.D.N.Y. 1965) (invalidating New York State’s English-language literacy 

test, holding Section 4(e) of the VRA prohibiting the condition of Puerto Rican’s voting rights on speaking English 

to be constitutional, and noting that though the VRA was “[b]orn out of the civil rights problems currently plaguing 

the [S]outh . . . this Act . . . was not designed to remedy deprivations of the franchise in only one section of the 

country. Rather, it was devised to eliminate second-class citizenship wherever present.”). 48 321 U.S. 649, 664 (1944); see also O. Douglas Weeks, The White Primary: 1944-1948, 42 AM. POL. SCI. REV.

500-10, n.3 (1948) (noting that white primaries were primary elections in the South where only white voters were 

allowed to vote. Since the Democratic Party dominated Southern elections, positions were often determined during 

the party’s primary elections since there was little chance of a Democrat losing in a general election. Therefore, 

white primaries essentially prevented black voters from having any significant effect on elections in the South 

despite their ability to vote in general elections.). 49 Id. at 506. 50 University of Texas, The Texas Politics Project, Smith v. Allwright: White Primaries, 

https://texaspolitics.utexas.edu/archive/html/vce/features/0503_01/smith.html (last accessed July 25, 2018). Texas’ 

1923 white primary law limited the primary to Anglos only and excluded blacks and Latinos. Id. 51 321 U.S. at 657. 52 Nixon v. Herndon, 273 U.S. 536, 541 (1927). 53 Nixon v. Condon, 286 U.S. 73, 89 (1932). 54 Shelby Cty., 570 U.S. at 560 (Ginsburg, J., dissenting) (citing Terry v. Adams, 345 U.S. 461, 469 (1953)). 55 Charles S. Bullock III, Ronald Keith Gaddie, and Justin L. Wert, The Rise and Fall of the Voting Rights Act 25 

(2016) (Norman: University of Oklahoma Press) [hereinafter Bullock, Gaddie, and Wert, Rise]. 56 Id. at 7. 57 Id.; see also Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634, § 101 (codified as amended at 42 U.S.C. 

§ 1993), https://www.gpo.gov/fdsys/pkg/STATUTE-71/pdf/STATUTE-71-Pg634.pdf (last accessed Aug. 3, 2018); 

see also Christopher, supra note 43, at 10 (“In the past those intent on denying the rights guaranteed by the fifteenth 

amendment have managed to avoid court decrees and legislation by contriving new stratagems.”). 
20 An Assessment of Minority Voting Rights Access

consider federal legislation to prohibiting state actors from enacting and implementing racially

discriminatory restrictions on voting.

58

Congress first passed the Civil Rights Act in 1957; it was a voting rights bill, which authorized the

Attorney General to file suit against local election officials in jurisdictions that had a pattern of

discriminating against voters and secure preventative relief.59 Protection of voting rights was thus

no longer dependent upon actions brought by private individuals at their own expense, and possibly

at the risk of physical and economic intimidation, as the bill also banned intimidation, threats or

coercion of the right to vote of any person.

60

This 1957 act also created the U.S. Commission on Civil Rights,61 which then began to conduct

studies documenting the inequalities confronted by black people in the South.62 The Commission

faced numerous obstacles in conducting these field studies. In fact, some registrars would not

permit the Commission to inspect their voter rolls and one state in particular passed legislation that

permitted its voting registrars to destroy all past registration records.63 In its first report, the

Commission declared “against the prejudice of registrars and jurors, the U.S. Government appears

under present laws to be helpless to make good the guarantees of the U.S. Constitution.”64 The

Commission therefore proposed appointing temporary federal registrars who would have authority

to register applicants after certification by the Commission that they had been discriminated

against in previous attempts to register.65

The Civil Rights Act of 1957 proved to be ineffective at providing adequate protections against

voting discrimination.66 In part, this inefficacy resulted because some lower courts ruled that the

Civil Rights Act was unconstitutional. Although the Supreme Court in United States v. Raines and

United States v. State of Alabama invalidated these lower courts’ decisions, the Civil Rights Act

of 1957 still proved to be insufficient in guarding against voting discrimination, as it did not

provide specific authority for the Attorney General to enforce its provisions.

67 Congress later

 

58 Id. 59 The Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634, pt. IV, § 131(c) (“Whenever any person has 

engaged or there are reasonable grounds that any person is about to engage in any act or practice which would 

deprive any other person of any [voting] right or privilege secured . . . the Attorney General may institute for the 

United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, 

including an application for a temporary or permanent injunction, restraining order, or other order.”), 

https://www.gpo.gov/fdsys/pkg/STATUTE-71/pdf/STATUTE-71-Pg634.pdf (last accessed Aug. 11, 2018). 60 Id. at pt. IV, § 131(b). 61 Id. at pt. I, § 101. 62 See, e.g., U.S. COMM’N ON CIVIL RIGHTS, 1961 U.S. COMMISSION ON CIVIL RIGHTS REPORT BOOK 1: VOTING,

(1961) XVI, http://www2.law.umaryland.edu/marshall/usccr/documents/cr11961bk1.pdf, [hereinafter U.S. COMM’N 

ON CIVIL RIGHTS, VOTING 1961]. 63 Id. 64 U.S. COMM’N ON CIVIL RIGHTS, 1959, supra note 6, at 133 (emphasis added). 65 Id. at 134-42. 66 Voting Rights Act of 1965, 1966 DUKE L. JOURN. 463 (1966), https://scholarship.law.duke.edu/dlj/vol15/iss2/6

(last accessed Aug. 3, 2018). 67 United States v. Raines, 362 U.S. 17, 26-27 (1960); see also United States v. State of Ala., 362 U.S. 602, 604 

(1960) (recognizing federal authority under Civil Rights Act of 1960 to bring voting rights action against Alabama).
Chapter 1: Introduction and Background 21

enacted the Civil Rights Act of 196068 and Civil Rights Act of 196469 to address the limitations of

the 1957 Act, but the amended acts still proved to be largely inadequate in addressing voting

discrimination.70

The Commission demonstrated this inadequacy in a report issued in the early 1960s, which

documented that progress towards equal voting rights in the United States had stagnated, and

argued that disenfranchisement would continue unless additional federal legislation was enacted

to stop it.71 For instance, the Commission noted in its 1961 report that:

These [litigation] successes, however, do not indicate that current [1961]

legislation, even with continued vigorous enforcement, affords a prompt solution

to the existence of discriminatory denials of the right to vote on account of race or

color. The Government, under existing federal law, must still proceed—suit by suit,

county by county. Each suit, moreover, is expensive and time consuming; and

although the [DOJ’s] Civil Rights Division has been repeatedly increased in size

and budget, and has concentrated its efforts in the voting field, it has not been able

to prepare and file all the suits that appear warranted. While it can be truly said that

present laws have proved to be effective tools to deal with discrimination in voting,

the tools are limited in scope. There is no widespread remedy to meet what is still

widespread discrimination.72

In addition, the Commission’s early reports documented obstacles that black voters, but not white

voters, faced at the ballot box. In February of 1965, the Commission held hearings in Jackson,

Mississippi, and found that black registration was declining in the state.

73 In addition, the

Commission found that two distinct practices led to the suppression of the minority vote in

Mississippi counties: the collection of a poll tax, and a registration test that required that a person

be able to interpret a section of the state constitution.74 In some cases, poll tax collectors refused

payment from African-American voters, along with more subtle methods such as raising money

or offering payment for white people but not for black people. Registrars often also used the

registration test to unfairly penalize African-American voters by giving them harder sections of

the state constitutions to interpret, and by enforcing much stricter rules about any mistakes on their

applications. The Commission also found that there were cases of public officials’ interference

that amounted to voter intimidation against the African-American community. Moreover, many

black citizens were afraid of physical violence, economic reprisals, or losing jobs, and therefore

did not even attempt to register or vote.75 As with previous reports, the Commission recommended

 

68 Civil Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 89 (1960). 69 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964). 70 Bullock, Gaddie, and Wert, Rise, supra note 55. 71 U.S. COMM’N ON CIVIL RIGHTS, VOTING 1961, supra note 62. 72 Id. at 100. 73 U.S. COMM’N ON CIVIL RIGHTS, MS 1965, supra note 42, at 1. 74 Id. at 13-14. 75 Id. at 23. 
22 An Assessment of Minority Voting Rights Access

that all literacy tests76 and similar instruments be eradicated, and that the President should establish

an affirmative program to ensure that all citizens have the ability to register and vote in all

elections.77

Voting Rights Act of 1965

On March 7, 1965, protesters led by Rev. Dr. Martin Luther King, Jr. and now-Congressman John

Lewis of Georgia—who at the time was the chairman of the Student Non-Violent Coordinating

Committee (SNCC)—were beaten at the foot of the Edmund Pettus Bridge in Selma, Alabama

while marching against unequal access to the ballot box.78 Television stations broadcast the

extreme violence that peaceful demonstrators endured, including violent beatings by patrolmen on

horseback, which prompted a public outcry to members of Congress to enact the VRA.79

A little over a week later, President Lyndon Baines Johnson issued a statement calling for

legislation to “eliminate illegal barriers to the right to vote,”80 following many of the

recommendations made by the Commission as early as 1961.81 When the VRA passed in August

of 1965,82 the final version was even stronger than the legislation proposed by President Johnson

in his speech, significantly incorporating several recommendations made by the Commission in its

voting rights report of May 1965.83 Just three months after the report was published, the

Commission’s recommendations that all literacy tests be eliminated, that all poll taxes be

abolished, and that federal poll watchers be sent to observe the elections and register voters were

all made part of the VRA.84 Congress also took into account that states had manipulated voting

 

76 For further information about poll taxes, literacy tests, grandfather clauses and other measures that were used to 

deny or abridge the voting rights of African Americans, see François, To Make Freedom Happen, supra note 23. 77 U.S. COMM’N ON CIVIL RIGHTS, VOTING 1961, supra note 62, at 139-42. 78 Kevin J. Coleman, The Voting Rights Act of 1965: Background and Overview, CONG. RESEARCH SERV. 11 (2015), 

https://fas.org/sgp/crs/misc/R43626.pdf [hereinafter Coleman, The Voting Rights Act of 1965]. 79 Ari Berman, Give Us The Ballot: The Modern Struggle For Voting Rights In America (New York: Picador, 2015), 

at 21-22 [hereinafter Berman, Give Us The Ballot]. 80 President Lyndon Johnson, President Johnson’s Special Message to Congress: The American Promise, 

http://www.lbjlibrary.org/lyndon-baines-johnson/speeches-films/president-johnsons-special-message-to-thecongress-the-american-promise (last accessed July 26, 2018) [hereinafter Johnson, President Johnson’s Special 

Message to Congress]. 81 U.S. COMM’N ON CIVIL RIGHTS, VOTING 1961, supra note 62, at 139-42. Suggestions made in the 1961 report, 

such as the use of 14th and 15th Amendment powers to eliminate restrictions to voting rights, id. at 139, and the 

prohibition of any “arbitrary action” to deny the registration of eligible voters, id. at 141, were embodied in 

President Johnson’s speech when the President called for a bill that would “strike down restrictions to voting in all 

elections,” and “insure that properly registered individuals are not prohibited from voting.” See also Johnson, 

President Johnson’s Special Message to Congress, supra note 80. 82 Voting Rights Act of 1965, Pub. L. No. 89-110 (codified as amended at 52 U.S.C. § 10101), 

http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf (last accessed August 2, 2018). 83 U.S. COMM’N ON CIVIL RIGHTS, MS 1965, supra note 42, at 61-63. 84 Id.; Voting Rights Act of 1965, Pub. L. No. 89-110 (codified as amended at 52 U.S.C. § 10101).
Chapter 1: Introduction and Background 23

rights by either ignoring court orders, or, as the Supreme Court later stated in upholding the VRA’s

constitutionality:

Even when favorable decisions have finally been obtained, some of the States

affected have merely switched to discriminatory devices not covered by the federal

decrees or have enacted difficult new tests designed to prolong the existing

disparity between white and Negro registration.85

In the VRA of 1965, Congress strengthened the judicial remedies of the Civil Rights Act of 1957,

1960, and 1964, by allowing direct federal oversight and protections of election processes to

ameliorate the effects of years of discrimination against racial minority voters in the United

States.86 Under Section 5 of the VRA, jurisdictions with a history of discrimination in voting had

to submit all voting changes for clearance by the federal government to determine whether they

would be discriminatory, before they could be implemented.87 This process was known as

preclearance, and it was considered necessary to stop these jurisdictions from repeatedly

discriminating against voters of color.88 The jurisdictions that were “covered” under Section 5

were identified by the following formula: (1) the use of discriminatory “tests and devices,” and (2)

disparately low turnout.89 “Tests or devices” included literacy tests (in which English-language

literacy and/or civics knowledge was required to register or vote), poll taxes (in which

remuneration was required to register or vote), and vouchers (wherein a person had to be

“vouched” for by another voter to register or vote).90

Moreover, the Attorney General could certify the need to send federal examiners to the covered

jurisdictions, to observe voter registration and voting processes, and to register voters.91 By 1967,

federal examiners authorized under the VRA registered more than 150,000 black southerners to

 

85 South Carolina v. Katzenbach, 383 U.S. 301, 314 (1966). 86 U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS ACT: TEN YEARS AFTER, at 3 (1975) [hereinafter U.S. COMM’N 

ON CIVIL RIGHTS, VOTING IN 1975]. The report also noted that the 1965 Act included specific protections against 

English literacy testing for Puerto Rican voters. Id. at 21. See also Katzenbach v. Morgan, 384 U.S. 641, 645 (1966) 

(discussing the legislative history of Section 4(e) of VRA, 42 U.S.C. § 1973(b)(e) (1965)). The literacy test portion 

of Section 4(e) was rendered moot with the passage of the Voting Rights Amendments of 1970, which expressly 

prohibited literacy tests. See PROPA v. Kusper, 350 F. Supp. 606, 610 (N.D. Ill. 1972)). 87 52 U.S.C. § 10304(a). 88 Katzenbach, 383 U.S. at 314-15; see also Discussion of “white primaries” and Sources cited therein supra notes 

48-54. 89 52 U.S.C. § 10303(b). Preclearance was required in: 

any State or in any political subdivision of a State which (1) the Attorney General determines maintained 

on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines 

that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, 

or that less than 50 per centum of such persons voted in the presidential election of November 1964.

90 52 U.S.C. § 10304(a)-(b). 91 Bullock, Gaddie, and Wert, Rise, supra note 55, at 19.
24 An Assessment of Minority Voting Rights Access

vote in 58 counties covered by Section 5.92 Black registration rates changed dramatically after

Section 5 and other key provisions of the VRA were implemented (see Table 1).93 In particular,

the table below illustrates that the VRA raised the black registration rate to over 50 percent of the

black voting age population across the states reported below, and increased the black registration

rate in pro-segregation states like Mississippi to more than eight times the pre-VRA rate.

94

According to the historical data compiled by the Commission reproduced in Table 1, white

registration rates also increased across most southern states included in this study, and in some

instances, these rates increased over 20 percent.

95

 

92 U.S. COMM’N ON CIVIL RIGHTS, POLITICAL PARTICIPATION 12 (1968), 

https://www.law.umaryland.edu/marshall/usccr/documents/cr12p753.pdf [hereinafter U.S. COMM’N ON CIVIL 

RIGHTS, PARTICIPATION 1968]. 93 Id. 94 Id. at 13. 95 Voting rights historian Morgan Kousser has also documented ways in which the VRA tangibly benefitted poor 

white Americans who were disenfranchised. See, e.g., J. Morgan Kousser, Protecting the Right to Vote, L.A. TIMES

(Sept. 28, 2012), http://articles.latimes.com/2012/sep/28/opinion/la-oe-kousser-voter-id-20120928 [hereinafter

Kousser, Protecting the Right to Vote].
Chapter 1: Introduction and Background 25

Table 1: Voter Registration by Race Before and After Passage of the Voting Rights Act 

of 196596

State

Pre-VRA97

Number of 

Registered Voters

Post-VRA98

Number of 

Registered Voters

Pre-VRA Percent 

of Voting 

Population 

Registered

Post-VRA Percent 

of Voting Age 

Population 

Registered

Alabama:

Nonwhite...99

White ...

92,737

935,695

248,432

1,212,317

19.3

69.2

51.6

89.6

Arkansas:

Nonwhite...

White...

77,714

555,944

121,000

616,000

40.4

65.5

62.8

72.4

Florida:

Nonwhite...

White...

240,616

1,958,499

299,033

2,131,105

51.2

74.8

63.6

81.4

Georgia:

Nonwhite...

White...

167,663

1,124,415

332,496

1,443,730

27.4

62.6

52.6

80.3

Louisiana:

Nonwhite...

White...

164,601

1,037,184

303,148

1,200,517

31.6

80.5

58.9

93.1

Mississippi:

Nonwhite...

White...

28,500

525,000

263,754

665,176

6.7

69.9

59.8

91.5

North Carolina:

Nonwhite...

White...

258,000

1,924,000

277,404

1,602,980

46.8

96.8

51.3

83.0

 

96 U.S. COMM’N ON CIVIL RIGHTS, PARTICIPATION 1968, supra note 92, at 12-13. 97 Id. at 13. According to the Commission’s 1968 report “Political Participation,” the pre-VRA statistics came from 

the Information Center, U.S. Commission on Civil Rights, Registration and Voting Statistics, Mar. 1965. The voter 

registration percentages for Alabama are as of May 1964; Arkansas, Oct. 1963; Florida, May 1964; Georgia, Dec.

1962; Louisiana, Oct. 1964; Mississippi, Nov. 1964; North Carolina, 1964; South Carolina, Nov. 1964; Tennessee, 

Nov. 1964; Texas, Nov. 1964; and Virginia, Oct. 1964. According to this report, “[t]hese statistics represent 

estimates based on official and unofficial sources and vary widely in their accuracy. Even where official figures 

were available, registrars frequently failed to remove the names of dead or emigrated voters and thus reported 

figures which exceeded the actual registration. Unofficial figures which came from a variety of sources are subject 

to even greater inaccuracies.” 

98 U.S. COMM’N ON CIVIL RIGHTS, PARTICIPATION 1968, supra note 92, at 13. Some of the post-VRA voter 

registration statistics were obtained from the U.S. Dep’t of Justice as follows: for Alabama as of Oct. 1967; for 

Georgia, Aug. 1967; for Louisiana, Oct. 1967; for Mississippi, Sept. 1967; and for South Carolina, July 1967. All of 

the other post-VRA voter registration statistics for the other states came from the Voter Education Project of the 

Southern Regional Council contained in Voter Registration in the South, Summer 1966. The Voter Education 

Project accumulated its statistics during that summer. 99 Id. Nonwhites in this study were primarily African-American citizens, but in some instances, the race of the 

registrant was unknown. 
26 An Assessment of Minority Voting Rights Access

State

Pre-VRA97

Number of 

Registered Voters

Post-VRA98

Number of 

Registered Voters

Pre-VRA Percent 

of Voting 

Population 

Registered

Post-VRA Percent 

of Voting Age 

Population 

Registered

South Carolina:

Nonwhite...

White...

138,544

677,914

190,017

731,096

37.3

75.7

51.2

81.7

Tennessee:

Nonwhite...

White...

218,000

1,297,000

225,000

1,434,000

69.5

72.9

71.7

80.6

Texas:

Nonwhite...

White...

2,939,535100

(total)

400,000

2,600,000

53.1 61.6

53.3

Virginia:

Nonwhite...

White...

144,259

1,070,168

243,000

1,190,000

38.3

61.6

55.6

63.4

Summary of Major Voting Rights Act Provisions

The Voting Rights Act was enacted by Congress in 1965 and has been amended since on a number

of occasions.

101 This section will serve as a reference throughout this report, to explain the major

VRA provisions that this report addresses.

Section 2

Section 2 of the VRA is a nationwide prohibition against denial or abridgement of voting rights,

prohibiting “any” voting practices and procedures that discriminate on the basis of race, color, or

membership in a language minority group.102 These voting practices may include, but are not

limited to, discriminatory redistricting plans, at-large election systems, and voter registration

procedures.103 Election practices need not be intentionally discriminatory to be prohibited under

Section 2, as practices that are shown to have a discriminatory result are also prohibited.104 Cases

that are typically litigated under Section 2 by the Department of Justice105 may be related to

 

100 Id. at 12-13 (noting that the pre-VRA percentages and totals of registered voters divided out by race were not 

available.). 101 42 U.S.C. §§ 1973 to 1973bb-1; 52 U.S.C. § 10301 (Section 2); U.S. Dep’t of Justice, Statutes Enforced by the 

Voting Section, https://www.justice.gov/crt/statutes-enforced-voting-section#vra [hereinafter DOJ Statutes] (last 

accessed Aug. 3, 2018). 102 52 U.S.C. § 10301. 103 DOJ Statutes, supra note 101. 104 Id. 105 See U.S. Dep’t of Justice, Voting Section Litigation, https://www.justice.gov/crt/voting-section-litigation

[hereinafter DOJ Litigation] (last accessed Aug. 3, 2018).
Chapter 1: Introduction and Background 27

redistricting plans,106 current districting plans,107 voter ID,

108 discriminatory treatment at the

polls,109 and at-large method voting systems.110

To prove a Section 2 violation, a plaintiff must show that:

based on a totality of circumstances . . . the political processes leading to

nomination or election in the State or political subdivision are not equally open to

members of the class of citizens protected . . . in that its members have less

opportunity than other members of the electorate to participate in the political

process and elect representatives of their choice.111

As discussed in this report, Section 2 litigation can be resource-intensive and time-consuming.112

Sections 4 and 5, and the Supreme Court’s Shelby County Decision

Section 4(b) of the VRA sets forth the criteria for identifying the jurisdictions covered under the

preclearance provisions of the Voting Rights Act.113 The preclearance formula was enacted in 1965

and updated in 1970, 1975, 1982, and 2006. Until June 2013, it applied in jurisdictions with a

history of discrimination in voting.

The preclearance provisions are in Section 5 of the VRA. Section 5 was enacted in 1965 to freeze

any changes in election practices or procedures within jurisdictions covered under Section 4(b),

until the practice was reviewed through administrative review by the Attorney General or by a

 

106 See, e.g., Perez v. Perry, No. 5:11-CV-360 (W.D. Tex. 2013); Greig v. City of St. Martinville, 2000 WL 

34610618 (W.D. La. 2000). 107 See, e.g., United States v. The Sch. Bd. of Osceola Cty., No. 6:08-CV-582-ORL-18DAB (M.D. Fla. 2008); United 

States v. Upper San Gabriel Valley Municipal Water Dist., No. 2:00-CV-7903 (C.D. Cal. 2000). 108 See, e.g., N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016); Veasey v. Abbott, 

830 F.3d 216 (5th Cir. 2016). 109 See, e.g., United States v. Sandoval Cty., N.M., 797 F. Supp. 2d 1249 (D.N.M. 2011); United States v. Salem Cty., 

No. 1:08-CV-03276-JHR-AMD (D.N.J. 2008); United States v. City of Phila., C.A. No. 06-CV-4592 (E.D. Pa. 

2007); United States v. City of Bos., No. 05-11598-EGY (D. Mass. 2005); United States v. Berks Cty., Pennsylvania, 

277 F. Supp. 2d 570 (E.D. Pa. 2003); United States v. Osceola Cty., No. 6:02-CV-738-ORL-22JGG (M.D. Fla. 

2002); United States v. City of Hamtramck, No. 00-73541 (E.D. Mich. 2000); United States v. Town of Cicero, 2000 

WL 34342276 (N.D. Ill. 2000); United States v. Cibola Cty., No. CV-93-1134-LH/LFG (D.N.M. 1993). 110 See, e.g., United States v. Vill. of Port Chester, 704 F. Supp. 2d 411 (S.D.N.Y. 2010); United States v. Town of 

Lake Park, Fla., WL 3667071 (S.D. Fla. 2009); United States v. City of Euclid, 580 F. Supp. 2d 584 (N.D. Ohio 

2008); United States v. Euclid City Sch. Dist. Bd. of Ed., No. 1:08-CV-02832-KMO (N.D. Ohio 2008); United States 

v. Georgetown Cty. Sch. Dist., No. 2:08-CV-00889-DCN (D.S.C. 2008); United States v. Osceola Cty., Fla., 475 F. 

Supp. 2d 1220 (M.D. Fla. 2006); United States v. Alamosa Cty., Colo., 306 F. Supp. 2d 1016 (D. Colo. 2006); 

United States v. Charleston Cty., S.C., 365 F.3d 341 (4th Cir. 2004); United States v. Morgan City, No. CV-00-1541 

(W.D. La. 2000); United States v. City of Santa Paula, No. CV-00-03691-GHK (C.D. Cal 2000); United States v. 

Benson Cty, C.A. No. A2-00-30 (D.N.D. 2000). 111 52 U.S.C. § 10301(b). 112 See Discussion and Sources cited therein in Chapter 4, infra notes 1308-10. 113 DOJ Statutes, supra note 101.
28 An Assessment of Minority Voting Rights Access

federal district court.

114 This review was to ensure that changes in election practices had neither

discriminatory purposes nor effects,

115 and that they were not retrogressive—under this standard,

Section 5 blocked changes that put minority voters in a position that was worse than before.116

Until June 2013, Section 5 applied statewide in Alabama, Alaska, Arizona, Georgia, Louisiana,

Mississippi, South Carolina, and Texas, and in certain counties or towns in California, Florida,

Michigan, New York, North Carolina, South Dakota, and Virginia. In the states that were partially

covered, only the local jurisdictions that were covered had to submit any changes to their local

voting rules for preclearance, but any statewide changes that impacted them also had to be

precleared.117 If a jurisdiction could show that it had not discriminated in voting for 10 years, it

could “bail out” of Section 5 coverage.118

The DOJ reviewed thousands of voting changes under Section 5, and it objected to hundreds of

proposed changes that would have been discriminatory had they been implemented.119 When the

changes were litigated in federal court, some were also blocked under Section 5, if they were

retrogressive.120

On June 25, 2013, in the case of Shelby County v. Holder, the United States Supreme Court ruled

that the formula in Section 4(b) identifying the jurisdictions that required Section 5 preclearance

was unconstitutional.121 While the Shelby County decision did not find that Section 5 was

unconstitutional, by ruling that the formula in 4(b) was unconstitutional, the decision removed the

mechanism for carrying out preclearance. In practice, this means that until Congress passes a new

preclearance formula, previously covered jurisdictions are not currently required to obtain

preclearance before making changes in voting laws unless they are required to do so by a separate

court order.

122

Language Minority Provisions

Sections 4(e), 4(f)(4), 203, and 208 are the “language minority” provisions of the Voting Rights

Act. Section 203 requires that the Census Bureau identify jurisdictions that contain a number of

language-minority voters who are limited in their English proficiency (LEP).123 These jurisdictions

across the country must provide bilingual written voting materials and voting assistance in the

minority languages covered by the VRA.124 Jurisdictions covered include both those provided

 

114 See 52 U.S.C. § 10304 (describing VRA Section 5 enforcement procedures). 115 DOJ Statutes, supra note 101. 116 See Discussion and Sources, infra notes 140-47 (explaining that the retrogression standard compares changes to 

prior “benchmark”).

117 See Discussion and Sources, infra note 867 and Table 12 (discussing the application of these rules in Florida). 118 See Discussion and Sources, infra notes 246-48 (explaining bailout procedures). 119 See, e.g., Discussion and Sources, infra notes 1387-92 (objections under Section 5 from 1982-present). 120 See, e.g., United States v. Beer, 425 U.S. 130, 141 (1976). 121 Shelby Cty., 570 U.S. at 552. 122 DOJ Statutes, supra note 101. 123 52 U.S.C. § 10503. 124 Id.
Chapter 1: Introduction and Background 29

under Section 4(f)(4) and those under Section 203.125 These sections mandate that bilingual

election materials be provided where the number of United States citizens of voting age in a single

language group within the jurisdiction who are LEP make up either more than 10,000 or more than

5 percent of all voting age citizens, and their illiteracy rate is higher than the national rate; and also

within any Indian reservation where the LEP population exceeds 5 percent of all reservation

residents.126 Typical litigation under Section 203 relates to a failure to provide election materials

for language minorities,

127 or a failure to provide access to oral language assistance.128 A map of

the jurisdictions covered under Section 203 can be found in Chapter 3, Figure 10. In addition,

Section 4(f)(4) requires that certain covered jurisdictions be subject to preclearance of any changes

in their language access programs.129

Section 4(e) of the 1965 VRA further provides rights for U.S. citizens educated “in American flag

schools” in a language other than English.130 Under Section 4(e), citizens educated in Puerto Rico

in Spanish may not have their right to vote “conditioned” on the ability to read and understand

English, regardless of whether they live in a jurisdiction covered by the high population threshold

of Section 203.

131

Section 208

Section 208 of the VRA mandates that particular voters who require assistance to vote be provided

assistance of their choice.132 Whether by reason of blindness, disability, or inability to read or

write, voters have the right to assistance by a person of their choosing, other than their employer,

an agent of their employer, or an officer or agent of the voter’s union.133 Section 208 litigation by

the Department of Justice typically relates to a failure to provide language assistance or a failure

to allow a disabled person to choose their assistance.

134

 

125 52 U.S.C. § 10303(f)(4); 52 U.S.C. § 10503. 126 52 U.S.C. § 10303(f)(4) (describing bilingual election requirements); see also 52 U.S.C. § 10503(b)(2)(A) 

(describing the coverage formula); see also U.S. Dep’t of Justice, About Language Minority Voting Rights, 

https://www.justice.gov/crt/about-language-minority-voting-rights (last accessed July 26, 2018). 127 See U.S. Dep’t of Justice, Cases Raising Claims Under Language Minority Provisions of the Voting Rights Act,

https://www.justice.gov/crt/cases-raising-claims-under-language-minority-provisions-voting-rights-act#ftbend (last 

accessed July 26, 2018) [hereinafter DOJ Cases Raising]; see, e.g., United States v. Salem Cty., No. 1:08-CV03726-JHR-AMD (D.N.J. 2008); United States v. City of Phila., C.A. No. 06-CV-4592 (E.D. Pa. 2007); United 

States v. Cibola Cty., No. CIV-93-1134-LH/LFG (D.N.M. 2007); United States v. City of Bos., No. 05-11598-EGY

(D. Mass. 2005); Berks Cty., 277 F. Supp. 2d 570; United States v. Osceola Cty., No. 6:02-CV-738-ORL-22JGG 

(M.D. Fla. 2002). 128 See DOJ Litigation, supra note 105. 129 52 U.S.C. § 10303(f)(4). 130 52 U.S.C. § 10303(e). 131 52 U.S.C. § 10303(e)(1). 132 See 52 U.S.C. § 10508. 133 Id. 134 See DOJ Litigation, supra note 105; see, e.g., United States v. Fort Bend Cty., No. 4:09-CV-1058 (S.D. Tex. 

2009); United States v. City of Phila., No. 06-CV-4592 (E.D. Pa. 2007); United States v. Brazos Cty., C.A. No. H06-2165 (S.D. Tex. 2006); Osceola Cty., No. 6:02-CV-738-ORL-22JGG.
30 An Assessment of Minority Voting Rights Access

Sections 3 and 8—Federal Observers and Judicial Preclearance

Sections 3 and 8 of the VRA provide for federal observers to monitor inside polling places and

help ensure compliance with the VRA throughout Election Day.135 Observers can be designated

by the Attorney General in the jurisdictions covered for preclearance under Section 5.

136 Section

3(a) also permits a federal court to order that the Attorney General send federal observers, and

Section 3(c) permits a federal court to order judicial preclearance of all voting changes, in

jurisdictions that have been found to have repeatedly intentionally discriminated in their voting

practices.137

The Relationship Between Sections 2 and 5

Both Sections 2 and 5 have proven useful in stopping voting discrimination. Section 2 is a

nationwide prohibition against discrimination in voting that requires bringing an affirmative

case,138 whereas Section 5 stopped discriminatory measures in certain covered jurisdictions with a

history of discrimination before they could be enacted.139 Another important distinction is that

unlike Section 2, Section 5 is based on a retrogression standard of review for discrimination, which

operates by evaluating the impact on minority voters of changes in voting in comparison to prior

“benchmarks” of the previous practices that were in place. Specifically, the 1965 VRA required

review of “any voting qualification or prerequisite to voting, or standard, practice, or procedure

with respect to voting different from that in force or effect on November 1, 1964.”140 Furthermore,

in 1976, the Supreme Court held that not all discriminatory election changes were prohibited under

Section 5—only changes that made minorities worse off than they had been could be struck down

by preclearance.141

The concurrent need for Section 2 is best illustrated by example. Under Section 5, long-standing,

racially discriminatory practices that were not already struck down could not be addressed if they

were not enacted after 1965. This was an issue with Mississippi’s procedures requiring voters to

register separately for state and federal elections, which were enacted a century earlier in order to

make it harder for black citizens to vote. When black voters wanted to challenge this dualregistration system in 1987, they had to bring an affirmative case under Section 2.142 After that,

the state was forced to adopt a voter registration procedure that did not cause an additional,

 

135 See 52 U.S.C. § 10305. 136 52 U.S.C. § 10303(b). 137 52 U.S.C. § 10302. 138 See 52 U.S.C. § 10301. 139 52 U.S.C. § 10304(a). 140 Id. (emphasis added). Voting procedures as of that date were therefore the original benchmark for the states that 

were covered under Section 5 in 1965. (For discussion of the coverage formula, see the following section of this

report.) For jurisdictions that came under its coverage after 1965, the benchmarks were those practices in place prior 

to Nov. 1, 1968 (for those jurisdictions that came under coverage through the 1970 VRA Reauthorization) or Nov. 1, 

1972 (for those that came under coverage through the 1975 or 1982 Reauthorizations). Id. 141 Beer, 425 U.S. at 141-42. 142 Mississippi State Chapter of Operation PUSH v. Allain, 674 F. Supp. 1245, 1247 (N.D. Miss. 1987).
Chapter 1: Introduction and Background 31

discriminatory burden on poor voters, the majority of whom were black.143 Later, when Mississippi

resurrected dual registration in 1995, it was successfully challenged under Section 5, because it

was retrogressive in that it made minority voters worse off than they had been after the 1987

Section 2 litigation.144 However, unless the Section 2 case had been brought, Section 5 would not

have been helpful to end the form of discrimination that had been enacted during the Jim Crow era

and had not yet been struck down by civil rights litigation prior to the VRA statutory benchmarks

discussed above (1964, 1968, or 1972).

145 Still, preclearance was extremely useful, because

jurisdictions with a history of discrimination were continuing to come up with incrementally new

ways to discriminate in voting, which could be struck down under Section 5 as retrogressive.146

This pattern continued in some of the formerly covered jurisdictions up to and after the 2006 VRA

Reauthorization.147

Additionally, Section 2 was also needed to address discrimination in voting in jurisdictions that

were not covered by preclearance.148

Voting Rights Act Amendments and Reauthorizations

Although Section 5 of the VRA was scheduled to expire in 1970, Congress has amended and

reauthorized the VRA five times to date: in 1970, 1975, 1982, 1992, and 2006. Each time, it was

reauthorized with overwhelming bipartisan support.149 One important detail that will be discussed

below are the criteria for identifying which jurisdictions would be required to preclear any voting

changes before they could be implemented, under Section 5.150 In 1965, 1970, and 1975, the

jurisdictions that were required to preclear their voting changes under Section 5 were identified by

a two-part formula, based on (i) low minority turnout in the most recent presidential election, and

 

143 Id. 144 See Young v. Fordice, 520 U.S. 273, 281-82 (1997) (various iterations of changes in voter registration procedures 

required to be precleared); U.S. Dep’t of Justice, Voting Determination Letter from Acting Assistant Attorney 

General Isabelle Katz Pinzler to Mississippi Special Assistant Attorney General Sandra M. Shelson (Sept. 22, 1997), 

https://www.justice.gov/crt/voting-determination-letter-22 (noting that the DOJ objected to dual registration 

procedures as discriminatory and retrogressive). 145 52 U.S.C. § 10304(a) (outlining benchmarks of 1964, 1968, or 1972, depending on when the jurisdiction became 

covered).

146 See Jenigh J. Garrett, The Continued Need for the Voting Rights Act: Examining Second-Generation 

Discrimination, 30 ST. LOUIS U. PUB. L. REV. 77, 84 (2010), http://law.slu.edu/sites/default/files/Journals/plr30-

1_garrett_article.pdf. 147 See infra, Chapter 5, Table 13, and Sources cited therein. 148 See, e.g., Spirit Lake Tribe v. Benson Cty., 2010 WL 4226614, No. 2:10-CV-095 (D.N.D. 2010); Large v. 

Fremont Cty., 709 F. Supp. 2d 1176 (D. Wyo. 2010); United States v. Vill. of Port Chester, 704 F. Supp. 2d 411 

(S.D.N.Y. 2010); City of Euclid, 580 F. Supp. 2d 584; Osceola Cty., 475 F. Supp. 2d 1220. 149 Coleman, The Voting Rights Act of 1965, supra note 78, at 18-23. 150 52 U.S.C. § 10304(a).
32 An Assessment of Minority Voting Rights Access

(ii) whether they had a discriminatory “test or device in place.”151 In 1982 and 2006, Congress

renewed the coverage formula.

152

1970 Amendment

After lengthy Congressional hearings, the Voting Rights Act Amendments of 1970 were passed in

the Senate after a 64-12 roll call vote,153 then passed in the House of Representatives by a roll call

vote of 272-132,154 and signed into law by President Richard Nixon shortly thereafter. The 1970

amendments extended the prohibition of any “tests or device[s]” as prerequisites to voting or voter

registration that were considered purposefully discriminatory practices for 10 years.

155 Second, the

preclearance formula updated the turnout disparities formula. Thus, Section 5’s preclearance

 

151 The preclearance formula was as follows: 

The provisions of subsection (a) [requiring preclearance] shall apply in any State or in 

any political subdivision of a State which (1) the Attorney General determines maintained 

on November 1, 1964, any test or device, and with respect to which (2) the Director of the 

Census determines that less than 50 per centum of the persons of voting age residing therein 

were registered on November 1, 1964, or that less than 50 per centum of such persons voted 

in the presidential election of November 1964. On and after August 6, 1970, in addition to 

any State or political subdivision of a State determined to be subject to subsection (a) 

pursuant to the previous sentence, the provisions of subsection (a) shall apply in any State 

or any political subdivision of a State which (i) the Attorney General determines maintained 

on November 1, 1968, any test or device, and with respect to which (ii) the Director of the 

Census determines that less than 50 per centum of the persons of voting age residing therein 

were registered on November 1, 1968, or that less than 50 per centum of such persons voted 

in the presidential election of November 1968. On and after August 6, 1975, in addition to 

any State or political subdivision of a State determined to be subject to subsection (a) 

pursuant to the previous two sentences, the provisions of subsection (a) shall apply in any 

State or any political subdivision of a State which (i) the Attorney General determines 

maintained on November 1, 1972, any test or device, and with respect to which (ii) the 

Director of the Census determines that less than 50 per centum of the citizens of voting age 

were registered on November 1, 1972, or that less than 50 per centum of such persons voted 

in the Presidential election of November 1972. 52 U.S.C. § 10303(b).

152 Coleman, The Voting Rights Act of 1965, supra note 78, at 16. Also, in 1992, Congress expanded the language 

access protections to include more groups of minority voters based on findings of ongoing disparities and expanded 

definitions of “tests or devices”; see also H.R. 4312, 102nd Cong. (1992), 

https://www.govtrack.us/congress/bills/102/hr4312 (last accessed July 26, 2018); see also James Thomas Tucker, 

Enfranchising Language Minority Citizens: The Bilingual Election Provisions of the Voting Rights Act, N.Y.U. J.

LEG. & PUB. POL’Y 215 (2016), http://www.nyujlpp.org/wp-content/uploads/2012/11/TUCKERENFRANCHISING-LANGUAGE-MINORITY-CITIZENS-TEH-BILINGUAL-ELECTION-PROVISIONS-OFTHE-VOTING-RIGHTS-ACT.pdf [hereinafter Tucker, Enfranchising Language Minority Citizens]. 153 116 CONG. REC. 6, at 7336 (Mar. 13, 1970) (Voting Rights Act Amendments of 1969). 154 115 CONG. REC. 28, at 38, 536-37 (Dec. 11, 1969) (Extension of Voting Rights Act of 1965). 155 Coleman, The Voting Rights Act of 1965, supra note 78, at 19. “[T]est or device” became defined as follows:

The phrase “test or device” shall mean any requirement that a person as a prerequisite for voting or registration 

for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any 

educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) 

prove his qualifications by the voucher of registered voters or members of any other class. 52 U.S.C. §10304(c).
Chapter 1: Introduction and Background 33

requirements156 were extended to all jurisdictions where (i) a “test or device” (such as a literacy

test or poll tax) was used, and (ii) less than 50 percent of voting age residents were registered or

voted in the 1968 presidential election.157 In addition, the 1970 VRA amendment introduced a

specific ban on literacy tests, which was extended to all states, and the voting age was lowered

from 21 to 18.158 The 1970 Amendments extended Section 5’s preclearance requirements for five

years, meaning that the states that were originally covered and any other jurisdictions that fell

under the formula due to low black registration were required to submit their voting changes for

federal review, and they had to prove that the changes would not be discriminatory before they

could be implemented in any election.159 Specifically, jurisdictions had to submit any proposed

changes to either the DOJ or a federal court, and demonstrate that the proposed change “neither

has the purpose nor will have the effect of denying or abridging the right to vote on account of

race or color.”160

1975 Amendment

The second reauthorization of the VRA occurred in 1975. The Voting Rights Act Extension of

1975 was passed in both the House and Senate by strong bipartisan majorities, and signed into law

by President Gerald Ford.161 This reauthorization extended Section 5 preclearance requirements

for another seven years. The definition of permanently prohibited “test[s] or device[s]” was

expanded to include:

any practice or requirement by which any State or political subdivision provided

any registration or voting notices, forms, instructions, assistance, or other materials

or information relating to the electoral process, including ballots, only in the

English language, where the Director of the Census determines that more than five

 

156 52 U.S.C. § 10304(a). 157 “Sec. 4. Section 4(b) of the Voting Rights Act of 1965 (79 Stat. 438; 42 U.S.C. 1973b) is amended by adding at 

the end of the first paragraph thereof the following new sentence: “On and after August 6, 1970, in addition to any 

State or political subdivision of a State determined to be subject to subsection (a) pursuant to the previous sentence, 

the provisions of subsection (a) shall apply in any State or any political subdivision of a State which (i) the Attorney 

General determines maintained on November 1, 1968, any test or device, and with respect to which (ii) the Director 

of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered 

on November 1, 1968, or that less than 50 per centum of such persons voted in the presidential election of 

November 1968.” See Voting Rights Act of 1965, Pub. L. No. 89-110 (codified as amended at 52 U.S.C. § 10101), 

http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf. See also 52 U.S.C. § 10303(b). 158 Coleman, The Voting Rights Act of 1965, supra note 78, at 19-20. This provision of the Voting Rights Act 

Amendments of 1970 was enacted amidst the Vietnam War, during which youth argued that if they were old enough 

to be drafted, they should be old enough to vote on the policies that led to the war. It was immediately challenged, 

after which the Supreme Court found that Congress had the right to regulate the voting age in federal elections but 

not in state and local elections. See also Oregon v. Mitchell, 400 U.S. 112 (1970). In 1971, the Constitution was 

amended to provide that the right to vote of citizens over 18 “shall not be denied or abridged by the United States or 

any State on account of age.” U.S. CONST. amend. XXVI (emphasis added). 159 52 U.S.C. § 10304(a). 160 Id. 161 Coleman, The Voting Rights Act of 1965, supra note 78, at 20.
34 An Assessment of Minority Voting Rights Access

per centum of the citizens of voting age residing in such State or political

subdivision are members of a single language minority.162

The additional Section 5 geographic coverage adopted in 1970 and 1975 extended its protections

to more counties and other political subdivisions163 in a number of additional states, including

Alaska, Arizona, and Texas in their entirety, and portions of California, Florida, Michigan, and

South Dakota.164 Further, the formula for preclearance under Section 5 was also updated to include

disparately low minority voter turnout in the 1968 and 1972 presidential elections, and the 1975

reauthorization established a penalty of a substantial fine or five years in prison for voting more

than once in a federal election.165

The 1975 amendments also created Section 203 of the VRA, which requires voting materials to be

provided in the language of the “applicable minority language group” of the voting jurisdiction,

which includes Latinos, Asian and Pacific Islanders, Native Alaskans, and Native

Americans.166After Congressional findings of discrimination and intimidation of voters with

limited-English proficiency, which had led to ongoing socioeconomic disparities and low literacy

rates, the 1975 amendments also included a formula under a new Section 203 for determining

which jurisdictions would be required to provide bilingual election materials and voter

assistance.167

1982 Amendment

In 1982, when the 1975 seven-year extension was set to expire, Congress amended the VRA to

extend it again. The Voting Rights Act Extension of 1982 was passed in the House and then in the

Senate, where an amended version eventually passed on June 18, 1982, with an 85-8 roll call

vote.168 The House later approved the amended bill, and the VRA was renewed again and enacted

into law by President Ronald Reagan.169 While he had argued that a national formula might have

been more appropriate than focusing on the jurisdictions originally covered in 1965, upon signing

the 1982 amendments, Reagan remarked that:

[T]he right to vote is the crown jewel of American liberties, and we will not see its

luster diminished . . . This legislation proves our unbending commitment to voting

rights . . . It also proves that differences can be settled in good will and good faith . . .

 

162 52 U.S.C. § 10303(f)(3). 163 Political subdivisions refer to “any county or parish, except that, where registration for voting is not conducted 

under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts 

registration for voting.” 52 U.S.C. § 10310(c)(2).

164 Bullock, Gaddie, and Wert, Rise, supra note 55, at 24-25. See also 52 U.S.C. § 10303(b). 165 Id.; Coleman, The Voting Rights Act of 1965, supra note 78, at 21. 166 52 U.S.C. § 10503; see also U.S. Dep’t of Justice, Civil Rights Division, Language Minority Citizens,

https://www.justice.gov/crt/language-minority-citizens (last accessed Aug. 3, 2018). 167 See Chapter 3, Language Access, infra notes 1434-46. 168 Coleman, The Voting Rights Act of 1965, supra note 78, at 21. 169 Id.
Chapter 1: Introduction and Background 35

To so many of our people—our Americans of Mexican descent, our black

Americans—this measure is as important symbolically as it is practically. . . . It

says to every individual: “Your vote is equal. Your vote is meaningful. Your vote

is constitutional.170

The 1982 amendment left in place the same preclearance formula. Based on an extensive

congressional record of ongoing discrimination in the jurisdictions that had been covered,

Congress extended preclearance for the covered jurisdictions for another 25 years.171 The 1982

amendments also made significant changes to Section 2 of the VRA. In particular, Section 2 was

amended so that racial minorities could challenge existing laws and election practices without the

need to prove discriminatory intent. According to Bullock et al., the decision to amend Section 2

was in response to the Supreme Court’s decision in City of Mobile v. Bolden, holding that proof of

discriminatory intent was required to establish a Section 2 violation.172 Congress replaced the

intent requirement in Section 2 with a “results” or “effects” test. Under this test, voting practices

are prohibited if they are “imposed or applied . . . in a manner which results in a denial or

abridgement of the right of any citizen of the United States to vote on account of race or color, or

[membership in a minority language group].”173

This new “results” test reduced the burden of proof for plaintiffs, since proving discriminatory

intent had become increasingly difficult, due in part to the fact that blatant discrimination in the

form of first-generation tests like poll taxes and literacy tests was no longer as common as in 1965.

However, other forms of discrimination had become apparent. These included diluting the right to

vote of minority communities through discriminatory forms of at-large elections, annexations, and

 

170 Howell Raines, Voting Rights Act Signed by Reagan, N.Y. TIMES, June 30, 1982, 

https://www.nytimes.com/1982/06/30/us/voting-rights-act-signed-by-reagan.html. 171 Coleman, The Voting Rights Act of 1965, supra note 78, at 25. 172 Bullock, Gaddie, and Wert, Rise, supra note 55, at 25; see also City of Mobile v. Bolden, 446 U.S. 55, 75 (1980). 173 52 U.S.C. § 10301(a). The new language of Section 2 also provided that a violation was established if, “based on 

the totality of circumstances, it is shown that the political processes leading to the nomination or election in the State 

or political subdivision are not equally open to participation by members of a class of citizens protected . . . in that 

its members have less opportunity than other members of the electorate to participate in the political process and 

elect representatives of their choice.” Id. at §10301(b).
36 An Assessment of Minority Voting Rights Access

redistrictings.

174 The amended Section 2 made it possible to prosecute these and other types of

discriminatory voting practices, even in cases where intent could not be proven.175

The 1982 amendments also included a new standard allowing jurisdictions to terminate (or bail

out from) preclearance coverage if they could prove they had not discriminated in voting for the

last 10 years.176

1992 Amendment

Congress amended the VRA a fourth time in 1992.

177 The 1992 amendments extended the voting

language assistance requirements for another 15 years. They also expanded the bilingual voting

rules coverage to include not only jurisdictions in which 5 percent of eligible voters were limitedEnglish proficient (LEP) and members of a language minority group, but to also include

jurisdictions that did not meet the high 5 percent threshold but had at least 10,000 LEP citizens

who were also members of a single language minority group, thereby reaching Latino- and Asian-

 

174 Coleman, The Voting Rights Act of 1965, supra note 78, at 14; see also Daniel D. Polsby and Robert D. Popper, 

Ugly: An Inquiry into the Problem of Racial Gerrymandering under the Voting Rights Act, 92 MICH. L. REV. 652, 

682 (1993) (analyzing the jurisprudence surrounding racially discriminatory redistricting (when redistricting is done 

in a manner that either divides or overly concentrates minority voters in districts that dilute their voting power) and 

at-large elections (when representatives are elected from one large district rather than at the community level, 

through local, single-member districts) and the impact of these practices in diluting the impact of the minority vote); 

see also James F. Blumstein, Racial Gerrymandering and Vote Dilution: Shaw v. Reno in Doctrinal Context, 26 

RUTGERS L.J. 517 (1995) (citing Davis v. Bandemer, 478 U.S. 109, 132-33 (1986) (opinion of White, J.), that vote 

dilution occurs “when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group 

of voters’ influence on the political process as a whole”); see also Paul W. Bonapfel, Minority Challenges to AtLarge Elections: The Dilution Problem, 10 GA. L. REV. 353, 354-55 (1976) (“At-large elections, in which one vote 

counts toward the election of several candidates, over-represent their constituents to the detriment of voters in 

single-member or smaller multi-member districts. In the geographically compact areas . . . minorities have the votes 

to determine the outcome of an election in a single-member district or ward system. By virtue of a multi-member or 

at-large plan, however, they remain a minority in such a system’s larger voting population. The majority elects all of 

the representatives, of course, and therefore candidates preferred by the minority group are consistently defeated. 

The consequence of this submerging of their votes, they argue, is to deny representation of their particularized views 

and needs. This asserted reduction in the ability of their votes to secure their preferred representation is alleged to 

amount to unconstitutional dilution of their votes.”); see also Edward Still, Voluntary Constituencies: Modified AtLarge Voting as a Remedy for Minority Vote Dilution in Judicial Elections, 9 YALE L. & POL’Y REV. 354, 368 

(1991) (“Finally, the Court discussed the possibility that at-large voting to minimize or cancel out the voting 

strength of racial or political the voting population . . . The minority group might also legitimately oppose modified 

at-large elections because the minority group will have to vote more or less uniformly to avoid splitting its 

strength.”); see also Chandler Davidson and George Korbel, At-Large Elections and Minority-Group 

Representation: A Re-Examination of Historical and Contemporary Evidence, 43 THE JOURN. OF POL. 982, 1005 

(1981) (demonstrates through statistical analysis and independent research the effect of at-large elections in diluting 

the minority vote); see also Thornburg v. Gingles, 478 U.S. 30, 74 (1986) (holding that voter dilution took place 

when the at-large electoral system effectively submerged minority vote); see also Garrett, supra note 146, at 77, 80 

(explaining how these procedures may dilute minority voters’ impact on the political process, in violation of VRA’s 

key protections against racial discrimination in voting).

175 Coleman, The Voting Rights Act of 1965, supra note 78, at 22. 176 Bullock, Gaddie, and Wert, Rise, supra note 55, at 30. 177 Coleman, The Voting Rights Act of 1965, supra note 78, at 22.
Chapter 1: Introduction and Background 37

American voters in large cities such as Los Angeles, Philadelphia, and San Francisco.178 The 1992

amendments also included more expansive language access coverage formulas for Native

Americans living on Indian Reservations.179

2006 Reauthorization

Finally, President George W. Bush signed the Fannie Lou Hamer, Rosa Parks, and Coretta Scott

King Voting Rights Act Reauthorization and Amendments Act of 2006, which had passed in the

House by a 390-33 vote, and in the Senate, unanimously.180 The 2006 reauthorization eliminated

the ability of federal election examiners to be sent under Section 5 to register voters, but extended

the remaining Section 5 and other VRA provisions for 25 years.181

During the debate on the House floor, some Republicans claimed that this reauthorization unfairly

targeted certain states and infringed upon state sovereignty in their election processes.182 Four

amendments were then presented, covering everything from changing the Section 5 coverage

formula to “accelerating the sun setting of the law,”183 but all were defeated.

On the Senate side, while voting 98-0 in favor of the 2006 reauthorization,184 Senators also held

extensive debates regarding the constitutionality of the bill and questioning the continued need for

preclearance.185 But President George W. Bush had publicly declared his support for the House

bill “without [a proposed] amendment [eliminating preclearance],”186 and the more fulsome bill

was moved to the Senate floor and unanimously approved. Congressional findings included a

continued need for the preclearance provisions of the VRA based on evidence of ongoing voter

 

178 H.R. 4312, 102nd Cong. (1992), supra note 152. See Chapter 4, infra for discussion. 179 Tucker, Enfranchising Language Minority Citizens, supra note 152, at 225-26. 180 Coleman, The Voting Rights Act of 1965, supra note 78, at 22. 181 Id. at 23. 182 Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174, 182 (2007), 

https://www.yalelawjournal.org/pdf/606_21wshzpe.pdf. 183 Id. at 183. 184 152 CONG. REC. 96 (daily ed. July 20, 2006) (Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting 

Rights Act Reauthorization and Amendments Act of 2006), https://www.gpo.gov/fdsys/pkg/CREC-2006-07-

20/pdf/CREC-2006-07-20-pt1-PgS7949-6.pdf (last accessed Aug. 3, 2018). 185 Kristen Clarke, The Congressional Record Underlying the 2006 Voting Rights Act: How Much Discrimination 

Can the Constitution Tolerate?, 43 HARV. C.R.-C.L.L. 385, 387 n.9 (2008) (“Summarizing his overall impressions 

of the process leading up to the renewal of the expiring provisions of the VRA, Senator Patrick Leahy (DemocratVT) observed that ‘Senators had available to them an extensive record to inform their votes,’ including a 

‘voluminous Senate Judiciary Committee record,’ a full record before the House of Representatives, the House 

Committee Report, the full debate on the House floor, and debate surrounding four proposed amendments that were 

all rejected. 152 Cong. Rec. S8372-73 (2006). Senator Leahy also noted that Senate members were provided ‘some 

of the extensive evidence received in the Judiciary Committee about the persistence of discriminatory practices in 

covered jurisdictions that supports reauthorization of this crucial provision.’”). 186 White House, President George W. Bush Addresses NAACP Convention, https://georgewbushwhitehouse.archives.gov/news/releases/2006/07/20060720.html (last accessed July 26, 2018).
38 An Assessment of Minority Voting Rights Access

discrimination against minorities.187 In its review of over 15,000 pages of evidence, the House

determined that there was evidence “of continued efforts to discriminate [against minority voters]

and continuing need to reauthorize the temporary [preclearance] provisions.”188 The Senate

incorporated the Congressional Record developed by the House and hosted additional hearings.

Two Senators expressed concern about the seeming lack of relevant differences between the

covered and uncovered jurisdictions and the 25-year period of extension.189

In particular, as discussed in the Supreme Court’s 2013 decision in Shelby County v. Holder,

Congress focused significant debate on the constitutionality of the preclearance formula.190 In

2006, most Members of Congress wanted to renew Section 5, but there was considerable

disagreement about whether the underlying formula regarding which jurisdictions would be

subject to preclearance needed to be updated.191

After much debate, in June 2006, both chambersreauthorized the temporary provisions of the VRA

for another 25 years with bipartisan support, and approved the same preclearance formula that was

later struck down in Shelby County. Moreover, after 21 hearings, the 2006 VRA Reauthorization

Record included 15,000 pages of record evidence, including significant attention to ongoing

discrimination in voting.192 Justice Ginsburg later described the Congressional record as follows:

“The compilation presents countless ‘examples of flagrant racial discrimination’ since the last

reauthorization; Congress also brought to light systematic evidence that ‘intentional racial

discrimination in voting remains so serious and widespread in covered jurisdictions that [S]ection

5 preclearance is still needed.’”193 Based on this record, Congress found that:

The VRA has directly caused significant progress in eliminating first-generation

barriers to ballot access, leading to a marked increase in minority voter registration

and turnout and the number of minority elected officials. 2006 Reauthorization §

2(b)(1). But despite this progress, “second generation barriers constructed to

prevent minority voters from fully participating in the electoral process” continued

to exist, as well as racially polarized voting in the covered jurisdictions, which

increased the political vulnerability of racial and language minorities in those

jurisdictions. §§ 2(b)(2)-(3), 120 Stat. 577. Extensive “[e]vidence of continued

discrimination,” Congress concluded, “clearly show[ed] the continued need for

 

187 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act 

of 2006, Pub. L. No. 109-246, 120 Stat. 577, §§ 2(b)(4)-(5) (second-generation barriers and racially polarized voting 

continued to exist) and §§ 2(b)(5) (“evidence clearly show[ed] the continued need for Federal oversight” in covered 

jurisdictions).

188 Voting Rights Act After the Supreme Court’s Decision in Shelby County: Hearing Before the H. Subcomm. on the 

Constitution and Civil Justice of the H. Comm. on the Judiciary, 113th Cong. 61 (2013), 

https://judiciary.house.gov/wp-content/uploads/2016/02/113-35-81983.pdf (last accessed July 26, 2018). 189 Persily, supra note 182, at 174, 189. 190 Id. at 189-92. 191 Id. at 189. 192 H.R. REP. NO. 109-478, at 5, 11-12 (2006). 193 Shelby Cty., 570 U.S. at 565 (Ginsburg, J., dissenting) (citing Northwest Austin, 557 U.S. at 205).
Chapter 1: Introduction and Background 39

Federal oversight” in covered jurisdictions. §§ 2(b)(4)-(5), id., at 577-578. The

overall record demonstrated to the federal lawmakers that, “without the

continuation of the Voting Rights Act of 1965 protections, racial and language

minority citizens will be deprived of the opportunity to exercise their right to vote,

or will have their votes diluted, undermining the significant gains made by

minorities in the last 40 years.”194

Congress also found that as “registration and voting of minority citizens increase[d], other

measures may be resorted to which would dilute increasing minority voting strength.”195

From the period of 1982 to 2006, there were 700 objections to voting changes under Section 5 of

the VRA; these changes were blocked because they were considered by the DOJ or a federal court

to be racially discriminatory.196 Additionally, over 800 proposed voting changes were withdrawn

or amended after the DOJ requested more information from the submitting jurisdiction.197 All

objections and other DOJ actions under Section 5 occurred in the formerly covered jurisdictions.198

For a map of jurisdictions that were covered in this era (in January of 2008), see Chapter 2, Figure

2. The covered states were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South

Carolina, and Texas, and the counties and other subdivisions that were covered were located in

California, Florida, Michigan, New Hampshire, New York, North Carolina, South Dakota, and

Virginia.

199

There were also a number of successful Section 2 cases from 1982 to 2006. These were cases in

which federal courts held that jurisdictions had violated the nationwide prohibition against racial

discrimination in voting—and most were brought in the jurisdictions that were covered under

Section 5’s preclearance formula. The following graph generated by voting rights expert J. Morgan

Kousser shows that the highest number of successful Section 2 cases were brought between 1982

and 2006, and that the great majority were brought in the formerly covered jurisdictions.

 

194 Id. at 566. 195 City of Rome, 446 U.S. at 180 (quoting H.R. REP. NO. 94-196, at 10 (1975)). 196 H.R. REP. NO. 109-478, at 21 (2006); H.R. REP. NO. 109-478, at 40-41 (2006). 197 H.R. REP. NO. 109-478, at 645 (2006). 198 52 U.S.C. § 10304(a). 199 See Chapter 2, infra Figure 2 (DOJ map of jurisdictions covered under Section 5) (Jan. 17, 2008).
40 An Assessment of Minority Voting Rights Access

Figure 1: Successful Section 2 Cases in Covered and Noncovered Jurisdictions,

1957-2014200

In the years Kousser reviewed for the above graph (1965-2014), an average of five out of six (82.7

percent) of successful Section 2 cases occurred in formerly covered jurisdictions.201

In 2006, Congress determined that the ongoing objections under Section 5 and the overconcentration of Section 2 violations provided evidence that the covered jurisdictions had higher

ongoing incidents of discrimination than other jurisdictions. The 2006 Congress also took into

account that many (but not all) of these jurisdictions had abandoned “first-generation” forms of

discrimination consisting of denial or abridgement of access to the ballot, yet they had found new

ways to discriminate in voting, through discriminatory forms of redistricting and other changes

regarding electoral districts and rules of representation that diluted the weight of minority votes.202

When President George W. Bush signed the 2006 reauthorization into law, he commented that:

In four decades since the Voting Rights Act was first passed, we’ve made progress

toward equality, yet the work for a more perfect union is never ending. We’ll

continue to build on the legal equality won by the civil rights movement to help

ensure that every person enjoys the opportunity that this great land of liberty offers.

 

200 Kousser, Protecting the Right to Vote, supra note 95, at 17. 201 Id. 202 H.R. REP. NO. 109-246, at 1 (2006).
Chapter 1: Introduction and Background 41

Today, we renew a bill that helped bring a community on the margins into the life

of American democracy. My administration will vigorously enforce the provisions

of this law, and we will defend it in court.203

Overview of Past Reports of the U.S. Commission on Civil Rights Related to Voting Rights 

for Minorities

The U.S. Commission on Civil Rights was created through the enactment of the Civil Rights Act

of 1957. Among other civil rights goals, the Act provided that the Commission should “investigate

allegations in writing under oath or affirmation that certain citizens of the United States are being

deprived of their right to vote . . . by reason of their color, race, religion, or national origin[.]”204

Since its creation, the Commission has met this obligation by consistently investigating the state

of voting rights across the country, and reporting the findings. The Commission has released over

20 briefing reports focused on the topic of voting rights.205 In addition to issuing briefing reports

with findings and recommendations to the President and Congress, the Commission has issued a

number of educational reports for general public consumption to both inform and instruct the

public on the complexities of voting rights laws.

 

203 Press Release, White House, President Bush Signs Voting Rights Act Reauthorization and Amendments Acts of 

2006, https://georgewbush-whitehouse.archives.gov/news/releases/2006/07/20060727.html (last accessed July 26, 

2018). 204 Civil Rights Act of 1957, Pub. L. 85-315, 71 Stat. 634, §104(a)(1) (codified as amended at 42 U.S.C. § 1993). 205 See Appendix A for a summary of each of the Commission’s reports on voting rights. 
42 An Assessment of Minority Voting Rights Access

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Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 43

CHAPTER 2: THE SUPREME COURT’S SHELBY COUNTY V. 

HOLDER DECISION AND ITS MAJOR IMPACTS

This chapter first examines the Supreme Court’s 5-4 decision in the Shelby County v. Holder case,

which struck down the preclearance formula of the Voting Rights Act (VRA). It explains what

preclearance was and where it applied, and examines the structural changes in VRA enforcement

resulting from the Court’s decision. It also discusses the rationale for the Supreme Court’s holding

that states and local jurisdictions with a history of discrimination in voting that were covered under

the prior preclearance formula should no longer be subject to federal preclearance. This chapter

also sets forth the precise language of the majority opinion’s acknowledgement that Congress may

enact a new preclearance formula based on current conditions. Appendix B describes various

Congressional bills that have attempted to legislate new VRA preclearance criteria based on

current conditions in the wake of Shelby County.

Chapter 2 then examines some of the major immediate impacts of the Shelby County decision, in

North Carolina and Texas. These states have some of the most extensive post-Shelby County

litigation, and both states altered pending legislation immediately following the Shelby County

decision to include additional voting laws that no longer needed approval by the federal

government under Section 5 of the VRA.

206

The Shelby County v. Holder Decision

Brief Summary of Historical Context

The VRA was enacted in 1965, and subsequently reauthorized and extended in 1970, 1975, 1982,

1992, and 2006. After its enactment in 1965, and after subsequent reauthorizations, the Supreme

Court upheld the constitutionality of the entire VRA.

207 But as discussed below, in June 2013, the

Supreme Court held that the formula for the preclearance process in Section 5 was

unconstitutional.208

 

206 H.R. 589, 2013-2014 Gen. Assemb. (N.C. 2013), 

https://www.ncleg.net/Sessions/2013/Bills/House/PDF/H589v9.pdf (last accessed July 26, 2018) [hereinafter

General Assembly of North Carolina, H.R. 589]; see also Ryan J. Reilly, Harsh Texas Voter ID Law ‘Immediately’

Takes Effect After Voting Rights Act Ruling, HUFFINGTON POST (Apr. 7, 2014), 

http://www.huffingtonpost.com/2013/06/25/texas-voter-id-law_n_3497724.html; see also Jennifer L. Patin,

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, THE VOTING RIGHTS ACT AT 50: THE TEXAS VOTER ID

STORY (2015), http://lawyerscommittee.org/wp-content/uploads/2015/08/The-Voting-Rights-Act-at50_printable.pdf [hereinafter Patin, The Voting Rights Act at 50]. 207 Lopez v. Monterey Cty., 525 U.S. 266, 287 (1999); City of Rome, 446 U.S. at 158; Katzenbach, 383 U.S. at 337; 

Katzenbach v. Morgan, 384 U.S. 641, 658 (1966). 208 Shelby Cty., 570 U.S. at 557.
44 An Assessment of Minority Voting Rights Access

The 1965 VRA was passed to ensure the guarantees of the 14th and 15th Amendments of the U.S.

Constitution against racial discrimination in voting.209 It does this through various provisions,

including: a nationwide prohibition of discrimination in voting in Section 2; a nationwide

prohibition of poll taxes, literacy tests, and other “tests and devices” that limit access to the ballot

for minority voters; and protections against voter intimidation. Additional protections for voters

with limited-English proficiency were enacted in 1975.210 These and other remaining provisions

of the VRA were not struck down by the Shelby County decision.211 The only part of the VRA that

the Shelby County decision struck down was the preclearance formula of the 2006

reauthorization.212 The preclearance formula in Section 4(b) of the VRA determined which

jurisdictions were “covered” and required to comply with the preclearance regime set forth under

Section 5 of the VRA.213 As will be explained in further detail below, preclearance meant that

jurisdictions with a history of discrimination had to submit any changes in voting procedures to

the DOJ or a federal court, and prove that the new voting procedures would not be

discriminatory.214 If they could not do so, the proposed changes in voting procedures would not be

precleared and could not be implemented.215 Historians have documented that Section 5’s

preclearance rules were enacted because:

The drafters of the VRA clearly recognized that the historical record made a

powerful case for ongoing oversight and protection of the voting rights of African

Americans: just as the Fifteenth Amendment had been circumvented by devices

such as literacy tests, the intent of the Voting Rights Act could readily be

circumvented through other devices or alterations in the structure or mechanisms

of elections. The pre-clearance provision was designed to prevent such

circumventions, which would deprive American citizens of their political rights.216

Prior to the Shelby County decision, the VRA’s preclearance rules applied to states and local

jurisdictions (such as counties) with a history of discrimination in voting.217 These states and local

 

209 Katzenbach, 383 U.S. at 308, 341-42; Morgan, 384 U.S. at 651. 210 See Chapter 1, Summary of Major Voting Rights Act Provisions, supra notes 101-48. 211 Shelby Cty., 570 U.S. at 557 (“Our decision in no way affects the permanent, nationwide ban on racial 

discrimination in voting found in § 2. We issue no holding on § 5 itself, only on the coverage formula.”).

212 Id.

213 52 U.S.C. § 10303(b). 214 52 U.S.C. § 10304(a).

215 Id.

216 Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry: 

Hearing Before the S. Comm. on the Judiciary, 109th Cong. 242, 247-48 (2006) (statement of Alexander Keyssar, 

Kenn. Sch. of Gov., Harv. U.), 

https://www.scribd.com/document/333618920/SENATE-HEARING-109TH-CONGRESS-RENEWING-THETEMPORARY-PROVISIONS-OF-THE-VOTING-RIGHTS-ACT-LEGISLATIVE-OPTIONS-AFTER-LULAC-VPERRY (last accessed June 12, 2018). 217 52 U.S.C. § 10304(a).
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 45

jurisdictions were subject to heightened scrutiny of voting changes until the Shelby County

decision. (See Figures 2 and 3 for maps of jurisdictions that were subject to preclearance.)

As an important preliminary matter, the Commission notes that data examined in this report show

that from the time of the 2006 VRA Reauthorization until the Shelby County decision, there were

ongoing violations of Sections 2 and 5 of the VRA in the formerly covered jurisdictions, and that

the Section 2 violations were concentrated in the formerly covered jurisdictions.218 Also, during

the 2006 reauthorization, “Congress found there were more DOJ objections [blocking proposed

voting changes under Section 5 due to determinations that they would be discriminatory] between

1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490).”219

What Were the Mechanics of Preclearance? 

Section 5 of the VRA required that jurisdictions falling under the preclearance formula submit and

receive approval of the federal government or a federal court before implementing any change in

voting procedures.220 That requirement meant that the DOJ or a federal district court were

statutorily required to review any changes in “any voting qualification or prerequisite to voting, or

standard, practice, or procedure with respect to voting”221 in jurisdictions covered under the

formula. The federal government would review the proposed changes to determine if they would

discriminate against black, Latino, Asian, or Native American voters.222 A three-judge federal

district court would either issue a declaratory judgement approving or rejecting the change, or the

U.S. Attorney General would approve, object, or request more information.223 Below are the major

components of preclearance that were suspended by the Shelby County decision.

First, under Section 5, any voting law, practice, or procedure was subject to preclearance review

prior to Shelby County, including:

224

x All redistricting done after each decennial Census;

x Any other changes to voting district lines;

x Eliminating or moving polling places to less accessible areas or to locations that could be 

perceived as intimidating, such as Sheriff’s offices;

x New voter purge procedures;

 

218 See Chapter 5, infra Table 13 and Sources cited therein. 219 Shelby Cty., 570 U.S. at 571 (Ginsburg, J., dissenting) (“On that score, the record before Congress was huge. In 

fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 

and the 1982 reauthorization (490).”); Voting Rights Act: Evidence of Continued Need: Hearing Before the H.

Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 172 (2006). 220 52 U.S.C. § 10304(a).

221 Id. 222 Id.

223 See 28 C.F.R. § 51.10. 224 52 U.S.C. § 10304(a); see also 28 C.F.R. § 51.10; Allen v. State Bd. of Elections, 393 U.S. 544, 548-89 (1969).
46 An Assessment of Minority Voting Rights Access

x English-language literacy tests;

x New voter ID laws;

x Cutting early voting or same-day voter registration;

x Moving Election Day to a day that would be inconvenient to an identifiable set of voters, 

such as a religious holiday, or taking away Sunday voting and limiting voting to a Tuesday, 

and;

x Any other change in registration, voting, or election procedures.225

Redistricting, which is constitutionally required after the 2020 Census, and any and all other

changes in voting procedures in the post-Shelby County era, large and small, will not be subject to

preclearance as they used to be, unless Congress enacts a new preclearance formula.226

Second, prior to the Shelby County decision, in the jurisdictions covered under the formula (see

Figure 2, below), the DOJ or a federal court had to preclear or approve any proposed relevant

voting change before the change could be implemented in any election. The standard for

preclearance grappled with whether voting law changes “ha[ve] the purpose” or “will have the

effect of denying or abridging the right to vote on account of race or color, or in contravention of

the guarantees set forth in section 10303(f)(2) [the language minority requirements] of [the

VRA].”227 Moreover, the burden to prove that the change would not be discriminatory fell on the

jurisdiction (not the DOJ or private plaintiffs).228 The Code of Federal Regulations made clear that

this meant the jurisdiction had to provide racial impact data to the federal government.229 None of

this is required after Shelby County.

Third, as briefly discussed in Chapter 1, Section 5 of the VRA prohibited retrogression.

Retrogression essentially means going backwards by decreasing access to the polls for voters of

color. The measure of whether a change in voting practices was racially discriminatory (or not)

was made in comparison to prior benchmarks.230 For example, if a state expanded early voting

then sought to cut it (and if cuts to early voting disparately impacted voters of color), then the

 

225 See Chapter 5, infra Figure 24 and Sources cited therein. 226 Shelby Cty., 570 U.S. at 530 (2013); U.S. Dep’t of Justice, Jurisdictions Previously Covered by Section 5, 

https://www.justice.gov/crt/jurisdictions-previously-covered-section-5 (last accessed June, 7, 2018) [hereinafter

DOJ Section 5]. 227 52 U.S.C. § 10304(a). 228 Id.; see also 28 C.F.R. § 51.10; Allen, 393 U.S. at 548-49. 229 See 28 C.F.R. § 51.27(n) (required contents of submission of voting changes for preclearance review include 

racial impact assessment); 28 C.F.R. § 51.27(r) (required contents also include: “Other information that the Attorney 

General determines is required for an evaluation of the purpose or effect of the change. Such information may 

include items listed in § 51.28 and is most likely to be needed with respect to redistrictings, annexations, and other 

complex changes. In the interest of time such information should be furnished with the initial submission relating to 

voting changes of this type. When such information is required, but not provided, the Attorney General shall notify 

the submitting authority in the manner provided in § 51.37.”); § 51.28 (detailed demographic data will facilitate 

review). 230 Under Section 5, voting changes must be measured against the benchmark practice to determine whether they 

would “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the 

electoral franchise.” Beer, 425 U.S. at 141.
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 47

change would not be precleared because it was retrogressive.231 Or if a state or county cut back on

the number of polling places, or changed an election date to a less convenient or accessible date,

the DOJ could object if there were sufficient evidence the change would be retrogressive.232

Additionally, preclearance included public notice requirements: individuals and groups could

register with the DOJ to receive weekly notice of the submissions of voting changes received by

the DOJ or via federal court.233 As part of the preclearance review process, the DOJ also

affirmatively reached out to members of the local minority community, to ask for their views on

the proposed voting changes, and took into account “relevant information provided by individuals

or groups.”234

But since the Shelby County decision struck down the preclearance formula, unless and until

Congress updates it based on current conditions, Section 5’s preclearance requirements do not

apply anywhere.235 Now, voting changes—including changes later proven to be discriminatory—

may be implemented immediately, the burden of proof is no longer on the jurisdiction but instead

on plaintiffs in a lawsuit (either impacted voters with access to counsel or the DOJ), no notice or

data about impact is required, and retrogression is no longer clearly prohibited.236

What Was the Pre-Shelby County Preclearance Geographic Scope Criteria?

The Shelby County court struck down the preclearance geographic scope criteria of the 2006 VRA

reauthorization, effectively halting heightened federal scrutiny in advance of voting changes in

jurisdictions where the criteria applied.237 The criteria covered more than just states, because the

rules of the VRA apply to any jurisdiction that conducts voter registration.

238 These range from

states to counties, to cities and townships and other subdivisions.239 The impacted states and

localities are mapped out below in Figure 2.

 

231 Id. 232 See, e.g., U.S. Dep’t of Justice, Section 5 Objection Letters, https://www.justice.gov/crt/section-5-objectionletters (last accessed July 26, 2018). 233 28 C.F.R. § 51.33. 234 28 C.F.R. § 51.53; see also 28 C.F.R. §§ 51.29-51.31, 51.38; see also U.S. Comm’n on Civil Rights Briefing 

Meeting Feb. 2, 2018 (2018) at 41-42 (statement by Bishop Dr. William Barber II, President & Senior Lecturer of 

Repairers of the Breach) [hereinafter Briefing Transcript]. 235 DOJ Fact Sheet, supra note 12. 236 Id. See also Chapter 4, Examination of the Data, infra Figure 21, and Sources cited therein (documenting cases 

where discrimination was proven under Section 2 with an overall limited ability to block such discriminatory voting 

changes through preliminary injunctions or judicial preclearance).

237 Id.

238 52 U.S.C. § 10310(c)(2) (“political subdivision” shall mean any county or parish, except that where registration 

for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision 

of a State which conducts registration for voting.”). 239 DOJ, Jurisdictions Previously Covered by Section 5, supra note 226.
48 An Assessment of Minority Voting Rights Access

The preclearance geographic scope criteria identified jurisdictions with a history of discrimination

in voting, whose record gave rise to the need for more extensive federal oversight.240 These were

called “covered jurisdictions” or “jurisdictions covered under Section 5.”241 As discussed in

Chapter 1, this approach was originally based on finding jurisdictions with very low black voter

registration and turnout, and with racially discriminatory barriers to the ballot. As conditions

changed and the criteria were updated, preclearance coverage reached more jurisdictions.242

The most recent preclearance criteria were based on the 2006 Congressional record documenting

what Congress found to be ongoing discrimination in voting in states and local jurisdictions that

had previously been determined to have used discriminatory “tests and devices” and to have had

disparately low minority voter turnout.243 This criteria covered nine states and 56 local

jurisdictions with a history of discrimination in voting. Below is a map that was issued by the DOJ,

showing the jurisdictions that were covered after the 2006 reauthorization, which since Shelby

County are now termed “formerly covered jurisdictions.”244

 

240 Katzenbach, 383 U.S. at 331. 241 See, e.g., DOJ Section 5, supra note 226. 242 See Chapter 1, Discussion and Sources, supra notes 87-95 and 153-92. 243 H.R. REP. NO. 109-478 (2006); S. REP. NO. 109-295 (2006). 244 DOJ Section 5, supra note 226.
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 49

Figure 2: Section 5 Formerly Covered Jurisdictions245

These formerly covered jurisdictions were subject to Section 5’s preclearance rules unless they

could “bail out.” A statutory bailout was granted by a federal court to jurisdictions that could show

that they had not discriminated in voting for over 10 years.246 If these jurisdictions could make the

requisite showing, then they were no longersubject to heightened federalscrutiny via preclearance.

Between 1985 and 2013, 40 counties and other sub-jurisdictions such as cities and townships in

Alabama, California, Georgia, New Hampshire, North Carolina, Texas, and Virginia, bailed out

of Section 5.247 A substantial portion (23 out of 42) of these bailouts were granted from 2010-

2013.248

After these bailouts and immediately prior to Shelby County, the coverage map looked like this—

although it is important to note that Alaska also remained covered (and that to provide the county-

 

245 Id. 246 52 U.S.C. § 10303(a). 247 U.S. Dep’t of Justice, Section 4 of the Voting Rights Act (see “Jurisdictions Currently Bailed Out” subsection), 

https://www.justice.gov/crt/section-4-voting-rights-act#bailout_list (last accessed July 26, 2018) [hereinafter DOJ 

Section 4 Bailed Out Jurisdictions]; see also Appendix D for summary of New Hampshire State Advisory 

Committee Briefing (discussing bailout). 248 Id.
50 An Assessment of Minority Voting Rights Access

level of visual detail in other states in the map below, the researcher’s map had to cut off Alaska

and Hawaii).249

Figure 3: Counties Covered Under Preclearance

Source: J. Morgan Kousser, Counties Covered Under Section 4 [the geographic scope criteria] at the

Time of Shelby County v. Holder [excluding Alaska which was also covered on a statewide basis].250

The Supreme Court’s Reasoning in Shelby County

Shelby County was a 5-4 decision of the Supreme Court. Justice Roberts wrote the leading opinion,

which Justices Scalia, Kennedy, Thomas, and Alito joined.251 Justice Thomas wrote a concurring

opinion,252 and Justice Ginsburg wrote a dissenting opinion, in which Justices Breyer, Sotomayor,

and Kagan joined.253 Justice Roberts based the majority opinion on (1) a finding that there had

been “dramatic progress”254 in voting rights since the 1965 VRA was enacted, and (2) a conclusion

that states in the South should not be treated unequally, based on “the principle of equal

sovereignty” developed in the Court’s recent voting rights jurisprudence.255 It was mainly based

 

249 J. Morgan Kousser, Do the Facts of Voting Rights Support Chief Justice Roberts's Opinion in Shelby County?

TRANSATLANTICA 1, Map 2, 6 (2015), http://journals.openedition.org/transatlantica/7462 [hereinafter Kousser, 

Facts of Voting Rights]. 250 Id. 251 Shelby Cty., 570 U.S. 529. 252 In his concurrence, Justice Thomas joined with the majority but also wrote separately to argue that not only the 

preclearance formula, but also Section 5 itself, was unconstitutional. Shelby Cty., 570 U.S. at 557 (Thomas, J.,

concurring).

253 Shelby Cty., 570 U.S. at 559 (Ginsburg, J., dissenting). 254 Id. at 556 (quoting Northwest Austin, 557 U.S. at 201 (2009)) (quotation marks omitted). 255 Id.
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 51

on these two factors that the majority held that the most recent (2006) VRA preclearance criteria

covering certain states and counties were unconstitutional, and therefore could no longer be

applied in those jurisdictions.256 Justice Roberts also stated that “Congress may draft another

formula based on current conditions.”257

Progress in Voting Rights

The majority of the Court discussed that past discrimination in voting leading to the 1965 VRA

was “pervasive,” “flagrant,” “widespread” and “rampant,” and that this level of discrimination

justified the extraordinary measure of requiring states and local jurisdictions with a history of

discrimination in voting to preclear any changes to their voting procedures with the federal

government.258 The Court reasoned that it was based upon those conditions that in the case of

South Carolina v. Katzenbach in 1966 and subsequent cases, the Court held that the original

preclearance criteria and subsequent iterations during VRA reauthorizations were constitutional,

as they were based on “exceptional conditions.”259

But after Congress reauthorized the VRA in 2006 for another 25 years, a Texas municipal utility

district immediately challenged the preclearance criteria and argued that the preclearance

requirements were unconstitutional. In its 2009 ruling in Northwest Austin Municipal Util. Dist.

No. One v. Holder [hereinafter “Northwest Austin”], the Supreme Court took into account that this

jurisdiction had never sought bailout, which would have alleviated the preclearance burden, and

therefore declined to rule on the constitutionality of the preclearance formula of the VRA.260

However, in its opinion on Northwest Austin, the Court “expressed serious doubts about the

[Voting Rights] Act’s continued constitutionality.”261 In addition to believing that Section 5

“imposes substantial federalism costs,” in 2009, the Court justified its decision by commenting

that “[t]hings have changed in the South. Voter turnout and registration rates now approach parity.

Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office

at unprecedented levels.”262

 

256 Id.; Justice Ginsburg vehemently disagreed, arguing that any improvements in decreasing discrimination in 

voting were due to preclearance, and wrote in her dissent that: “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.” Shelby Cty., 570 U.S. at 590 (Ginsburg, J., dissenting). 257 Id. at 557. 258 Id. at 554. 259 Id. at 545 (discussing Katzenbach, 383 U.S. at 334). In Katzenbach, the Court relied in part on data that the 

USCCR generated regarding discrimination in voting in the South. 383 U.S. at 309 n.5, 311 n.10, 323 n.33, 337 

n.51.

260 Id. at 539-40 (discussing Northwest Austin, 557 U.S. 193). 261 Id. at 529. 262 Id. at 540 (quoting Northwest Austin, 557 U.S. at 202); see also Kousser, Facts of Voting Rights, supra note 249, 

arguing that:

Devoting only two short sentences to the painstaking 84-page opinion of federal district court judge 

John Bates and only seven more to the thorough 32-page majority opinion of the Court of Appeals 

for the District of Columbia by Judge David S. Tatel, Chief Justice Roberts dismissed the 15,000-
52 An Assessment of Minority Voting Rights Access

In contrast to the Northwest Austin utility district, Shelby County, Alabama could not seek bailout

because the Attorney General had recently objected to some of its voting changes as racially

discriminatory. Because Shelby County could not prove that it had not discriminated in voting in

the last 10 years,263 the Supreme Court found that it had standing to challenge the constitutionality

of the preclearance provisions of the VRA. With standing established to challenge the VRA, the

majority opinion then reviewed the type of past discrimination leading to the 1965 VRA. In

particular, the majority noted that prior to 1965:

Several States had enacted a variety of requirements and tests “specifically

designed to prevent” African-Americans from voting. Case-by-case litigation had

proved inadequate to prevent such racial discrimination in voting, in part because

States “merely switched to discriminatory devices not covered by the federal

decrees,” “enacted difficult new tests,” or simply “defied and evaded court orders.”

Shortly before enactment of the Voting Rights Act, only 19.4 percent of AfricanAmericans of voting age were registered to vote in Alabama, only 31.8 percent in

Louisiana, and only 6.4 percent in Mississippi. Those figures were roughly 50

percentage points or more below the figures for whites.264

The majority also noted that in 1965, “Congress chose to limit its attention to the geographic areas

where immediate action seemed necessary.”265 Furthermore, those areas were places where

 

page record compiled by Congress, which the lower courts discussed extensively, as irrelevant 

because “Congress did not use the record it compiled to shape a coverage formula grounded in 

current conditions.” “History,” Roberts reminded us, “did not end in 1965. By the time the Act was 

reauthorized in 2006, there had been 40 more years of it.” Yet apart from comparing voter 

registration rates in 1965 and 2004 in six Deep South states and making a brief, misleading reference 

to the rate of DOJ objections to election law changes, the Chief Justice ignored that history. 

What if we delve into the history that Chief Justice Roberts disregarded? What if we look at where 

proven violations of the VRA and related laws and constitutional provisions actually took place and 

at the course of those violations over time? How do the geographical and temporal patterns from the 

years shortly before the passage of the Act in 1965 through the years after its latest renewal in 2006 

reflect on the adequacy of the Section 4 coverage formula that the Chief Justice summarily rejected 

as “based on decades-old data and eradicated practices?” What can we learn about how voting rights 

law has actually worked by arraying the patterns of legal actions involving minority voting rights in 

maps and charts? Although Chief Justice Roberts’s opinion rested entirely on his assertions that 

voting rights violations had severely declined and that they were no longer concentrated in 

jurisdictions covered under Section 4 of the VRA, he only briefly and superficially examined the 

“historical experience” that he and Chief Justice Warren before him considered key to “the 

Constitutional propriety of the Voting Rights Act.” When we examine that experience in detail, will 

we reach the same conclusions that Chief Justice Roberts announced in Shelby County?

Id. (internal citations omitted). 263 Id. at 539-40. 264 Id. at 545-46 (quoting Katzenbach, 383 U.S. at 310-14 (internal pinpoint citations omitted)). 265 Id. at 546 (quoting Katzenbach, 383 U.S. at 328).
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 53

discriminatory voting “tests and devices” for voter registration were used, and where in the 1964

Presidential Election, turnout was at least 12 points below the national average.266

The majority opinion also considered that “tests and devices” were made illegal 40 years ago.267

Furthermore, in the 2006 reauthorization, Congress said that “[s]ignificant progress has been made

in eliminating first-generation barriers experienced by minority voters, including increased

numbers of registered minority voters, minority voter turnout, and minority representation in

Congress, State legislatures, and local elected offices.”268 The opinion then included the following

chart, emphasizing that it features voter registration data by race that were compiled before

Congress reauthorized the preclearance formula in 2006:269

Table 2: Voter Registration Rate by Race, 1965, 2004270

1965 2004

White Black Gap White Black Gap

Alabama 69.2% 19.3% 49.9% 73.8% 72.9% 0.9%

Georgia 62.[6]% 27.4% 35.2% 63.5% 64.2% -0.7%

Louisiana 80.5% 31.6% 48.9% 75.1% 71.1% 4.0%

Mississippi 69.9% 6.7% 63.2% 72.3% 76.1% -3.8%

South 

Carolina 75.7% 37.3% 38.4% 74.4% 71.1% 3.3%

Virginia 61.1% 38.3% 22.8% 68.2% 57.4% 10.8%

The majority noted that in the covered jurisdictions, “largely because of the Voting Rights Act,

voting tests were abolished, disparities in voter registration and turnout due to race were erased,

and African-Americans attained political office in record numbers.”271 However, the Commission

 

266 Id. 267 Id. at 547. 268 Id. (citing Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and 

Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577, § 2(b)(1)). During the reauthorization, Congress 

contrasted “first-generation barriers to ballot access,” which the VRA had made “significant progress” in 

“eliminating,” with “second generation barriers constructed to prevent minority voters from fully participating in the 

electoral process” which continued to exist. Id. at 565-66 (citing §§ 2(b)(2)-(3)). 269 Id. at 548 (citing S. Rep. No. 109-295, at 11 (2006); H.R. Rep. No. 109-478, at 12, and noting that: “The 2004 

figures come from the Census Bureau. Census Bureau data from the most recent election indicate that AfricanAmerican voter turnout exceeded white voter turnout in five of the six States originally covered by § 5, with a gap in 

the sixth State of less than one half of one percent.”). 270 Id. 271 Id. at 553.
54 An Assessment of Minority Voting Rights Access

notes that the Court did not take into account turnout data among Asian, Latino, and Native

Americans,272 who are also protected under the VRA, including Section 5.273

The majority did take into account that during the 2006 reauthorization, Congress relied heavily

on “second-generation barriers” regarding “vote dilution” as opposed to vote denial (or barriers to

ballot access).274 Chief Justice Roberts described these second-generation barriers that Congress

relied on in the 2006 reauthorization—which were various forms of racial gerrymandering and

moving district lines to dilute the political power of minority voters—as “not impediments to the

casting of ballots but rather electoral arrangements that affect the weight of minority votes.”275 The

Court’s opinion stated that “Congress did not use the record it compiled to shape a coverage

formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts

having no logical relation to the present day.”276

This phrase could refer back to the 1975 VRA Reauthorization.277 As discussed in Chapter 1, in

renewing the preclearance formula during the 1975 VRA Reauthorization, Congress took into

account updated black voter registration and turnout numbers, while also adding review of low

turnout among other voters of color.278 In contrast, the 1982 and 2006 VRA Reauthorizations were

not based upon turnout. Instead, the later reauthorizations took into account ongoing Section 5

violations in the formerly covered jurisdictions, an over-concentration of Section 2 violations in

them, and the fact that these jurisdictions were inventing new waysto discriminate against minority

voters.279 The majority opinion did not review this newer type of data underlying the differential

treatment of states in the 2006 VRA Reauthorization, which showed a higher rate of discrimination

in the previously covered jurisdictions.280 However, the Court’s holding certainly shows that it

found the geographic scope criteria resulting from the data to be unconstitutional.281 Chief Justice

Roberts wrote that: “Regardless of how to look at the [2006] record, however, no one can fairly

 

272 Id.; Cf. Chapter 4, Disaggregation of Racial Disparities, and sources cited therein at infra notes 1262-72

(discussing black voter turnout and showing large turnout gaps and under 50 percent participation rates in recent 

years among these groups). 273 For example, Section 5 determinations are evaluated based on whether the voting change in a covered jurisdiction 

“neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, 

or in contravention of the guarantees set forth in section 10303(f)(2) of this title [protecting ‘language minority 

groups’].” 52 U.S.C. § 10304(a). This language has been used to object to voting changes on the basis that they 

discriminated against Asian, black, Latino and Native Americans. See, e.g., 52 USC § 10310(c)(3) (“The term 

“language minorities” or “language minority group” means persons who are American Indian, Asian American, 

Alaskan Natives or of Spanish heritage.”). 274 Shelby Cty., 570 U.S. at 554 (“Viewing the preclearance requirements as targeting such efforts simply highlights 

the irrationality of continued reliance on the § 4 coverage formula, which is based on voting tests and access to the 

ballot, not vote dilution.”). 275 Id. 276 Id. at 554. 277 See id. at 538. 278 See Chapter 1, Discussion and Sources cited in notes 162-67, supra. 279 See Chapter 1, Discussion and Sources cited in notes 172 and 202, supra. 280 See Shelby Cty., 570 U.S. at 554. 281 Id.
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 55

say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’

discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions

from the rest of the Nation at that time.”282 Moreover as discussed below, the Court also held that

for preclearance criteria to be constitutional, current conditions would have to show compelling

reasons to treat states differently.

The Principle of Equal Sovereignty

The principle of equal sovereignty among the states originated in the context of evaluating whether

to admit new states, and became a states’ rights theory during the Reconstruction Era.

283 In

upholding the constitutionality of the Voting Rights Act in 1966, the Supreme Court concluded

that the principle of equal sovereignty did not apply in the voting rights context.284 While relying

on pre-1966 cases, equal sovereignty was resurrected by the Supreme Court’s 2009 decision in

Northwest Austin,

285 and became a pillar of the Shelby County decision.286

The principle of equalsovereignty simply meansthatstates, as entities,should not be discriminated

against and all states should be treated equally. It does not mean that states could never be treated

differently, based upon their records.287 In its modern application, in the Northwest Austin and

Shelby County cases, the Supreme Court has held that this principle means that states in the South

and other jurisdictions covered by the preclearance provisions of the VRA should not be treated

differently than other states based only on their history.288 This iteration of the states’ rights

principle represents the majority’s criticism that the VRA preclearance criteria fell too harshly

 

282 Id. 283 Id. at 544. 284 Id. at 545; see also id. at 544 (“Not only do States retain sovereignty under the Constitution, there is also a 

‘fundamental principle of equal sovereignty’ among the States. Northwest Austin, supra, at 203 (citing United States 

v. Louisiana, 363 U.S. 1, 16 (1960); Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 

7 Wall. 700, 725-726 (1869); (emphasis added). Over a hundred years ago, this Court explained that our Nation 

‘was and is a union of States, equal in power, dignity and authority.’ Coyle v. Smith, 221 U.S. 559, 567 (1911). 

Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which 

the Republic was organized.’ Id. at 580. Coyle concerned the admission of new States, and [Morgan v.] Katzenbach

[deciding the constitutionality of the 1965 VRA in 1966] rejected the notion that the principle operated as a bar on 

differential treatment outside that context. 383 U. S. at 328-29. At the same time, as we made clear in Northwest 

Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate 

treatment of States. 557 U. S. at 203.”). 285 557 U.S. at 203. 286 Shelby Cty., 570 U.S. at 544. 287 See, e.g., id. at 557 (the majority of the Roberts Court held that Congress may draft a new VRA preclearance 

formula based on current conditions, which presumably means that the formula would not apply the same way in 

every state, as it would have to be based on actual and current conditions that vary from state to state); see also

Northwest Austin, 557 U.S. at 203 (requiring “disparate geographic coverage” to be “sufficiently related” to its 

targeted problem).

288 The Shelby County court explained that the “fundamental principle of equal sovereignty” among states was first 

re-established in the Court’s decision in Northwest Austin in 2009, and it considered the principle to be “highly 

pertinent” in evaluating disparate treatment of States. Shelby Cty., 570 U.S. at 544 (citing Northwest Austin, 557 

U.S. at 203).
56 An Assessment of Minority Voting Rights Access

upon the modern South. For example, in applying the principle of equal sovereignty in Shelby

County, writing for the majority, Chief Justice Roberts considered that:

In 1965, the States could be divided into two groups: those with a recent history of

voting tests and low voter registration and turnout, and those without those

characteristics. Congress based its coverage formula on that distinction. Today the

Nation is no longer divided along those lines, yet the Voting Rights Act continues

to treat it as if it were.289

In analyzing whether the covered jurisdictions were treated with equal respect for their sovereignty

in comparison to other places in the country, Chief Justice Roberts also reasoned that Congress

did not change the VRA’s prior coverage formula during their 2006 reauthorization (as discussed

above, the prior coverage criteria was a formula identifying jurisdictions based on past

discriminatory “tests or devices” and low minority turnout). The majority held that while the old

coverage formula was justified in 1965, current conditions had improved in the covered

jurisdictions. In defending the VRA in 2013, the federal government had argued before the Court

that there was ongoing discrimination in the jurisdictions that were originally covered by the

turnout-based formula in 1965, 1970, and 1975,

290 and that jurisdictions could also bail out if they

could prove that they had not discriminated in voting in 10 years.291 But writing for the majority,

Justice Roberts reasoned that “history did not end in 1965. By the time the [Voting Rights] Act

was reauthorized in 2006, there had been 40 more years of it.”292 In sum, along with quantitative

data comparing 1965 and 2004 black registration and turnout numbers,293 based on the qualitative

assessment that conditions had “dramatically improved” in the South,294 the Court held that the

preclearance criteria used in the 2006 VRA Reauthorization were unconstitutional.295

The Precise Holding

The immediate and ongoing implications of the Shelby County decision are discussed in

subsequent sections of this report. But it is important to note that the majority opinion also

acknowledged ongoing discrimination, and that the Chief Justice clearly stated that Congress may

draft another set of preclearance criteria based on current conditions. The precise language of the

Supreme Court’s holding bears repeating as a guidepost to the role of the federal government in

protecting minority voting rights going forward:

Our decision in no way affects the permanent, nationwide ban on racial

discrimination in voting found in § 2. We issue no holding on § 5 itself, only on the

coverage formula. Congress may draft another formula based on current

 

289 Id. at 551. 290 52 U.S.C. §10303(a)(1) (describing turnout formula). 291 Shelby Cty., 570 U.S. at 539. 292 Id. at 552. 293 Id. at 549. 294 Id. at 550. 295 Id. at 556.
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 57

conditions.296 Such a formula is an initial prerequisite to a determination that

exceptional conditions still exist justifying such an “extraordinary departure from

the traditional course of relations between the States and the Federal Government.”

Presley v. Etowah Cty. Comm’n, 502 U.S. 491, 500-501 (1992). Our country has

changed, and while any racial discrimination in voting is too much, Congress must

ensure that the legislation it passes to remedy that problem speaks to current

conditions.297

This text provides an opportunity to evaluate current conditions upon which Congress may

constitutionally base another preclearance formula. The Shelby County holding makes clear that

for such an updated preclearance criteria to be constitutional, it should not treat states unequally

based on past conditions of discrimination that are not ongoing in the present. This opinion also

justifies examination of whether the remaining provisions of the VRA are sufficient to protect our

nation and its citizens from discrimination in voting.

Congressional Responses to the Shelby County Decision

Subsequent to the Shelby County decision directing that Congress “must ensure that the legislation

it passes to remedy that problem [of discrimination in voting] speaks to current conditions,”298

despite current conditions evidencing ongoing discrimination in voting,299 Congress has not passed

VRA legislation to address new preclearance criteria. In contrast, Congress had previously

reauthorized the VRA on five separate occasions and each reauthorization received overwhelming

bipartisan support.300 The post-Shelby County VRA bills that have been introduced but not voted

upon are discussed in Appendix B.

The Impact of Shelby County on Federal VRA Enforcement

The most immediate and profound impact of the Shelby County decision is that formerly covered

jurisdictions are no longer required to obtain preclearance for voting changes before they can be

implemented. After the decision, the DOJ issued a Fact Sheet on Justice Department’s

Enforcement Efforts Following Shelby County Decision (“DOJ Fact Sheet”), describing its view

of the impacts.301 It stated that, “In the areas covered by the Section 4(b) [preclearance] formula,

 

296 Chief Justice Roberts even commented on Congressional inaction prior to the Shelby County decision. He stated 

that in striking down an Act of Congress [the 2006 VRA Reauthorization Act]: 

We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of 

the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory 

grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of 

the Act. Congress could have updated the coverage formula at that time, but did not do so. 570 U.S. at 

556-7 (emphasis added).

297 Id. at 557. 298 Id. 299 See Chapters 3-4 and Sources cited therein, infra. 300 Berman, Give Us The Ballot, supra note 79, at 137, 140. 301 DOJ Fact Sheet, supra note 12.
58 An Assessment of Minority Voting Rights Access

the department used to be able to block discriminatory changes to election rules and practices

before they took effect.... One of the impacts of Shelby County is that now, those discriminatory

changes can go into and remain in effect while the department pursues litigation.”302 In Chapter 5

of this report, the Commission will evaluate the Department’s pre- and post-Shelby County federal

voting rights enforcement efforts.

The DOJ Fact Sheet and other public statements set forth DOJ’s view that it can no longer send

federal observers trained by the Office of Personnel Management (OPM) who may enter the

polling place to observe elections in formerly covered jurisdictions, because their certification by

the Attorney General is based in part on the coverage formula in Section 4(b).303 The Commission

notes that DOJ may still send federal observers if so ordered by a federal court. Also, DOJ may

still send its own personnel to monitor elections, but unlike observers, they have no statutory right

to enter the polls and watch the voting process.304

Another impact of Shelby County is in the area of language access. Section 4(f)(4) of the VRA

requires specific jurisdictions to provide election-related materials and information in languages

other than English; these are jurisdictions in which the Attorney General determined that an illegal

voting test or device was in place in 1968 and that participation was less than 50 percent of citizens

of voting age at that time.305 The DOJ Fact Sheet states that Section 4(f)(4) jurisdictions are

“dependent on a part of the Section 4(b) formula,”306 but does not provide any citation to the statute

for that analysis.307 Therefore, DOJ believes that jurisdictions formerly covered under Section

 

302 Id. 303 Id.; see also 52 U.S. C. § 10305 (a)(2); see also U.S. Dep’t of Justice, Attorney General Loretta E. Lynch 

Delivers Remarks at the League of United Latin American Citizens National Convention (July 15, 2014), 

https://www.justice.gov/opa/speech/attorney-general-loretta-e-lynch-delivers-remarks-league-united-latin-americancitizens. (“Unfortunately, our use of observers is largely tied to the preclearance coverage formula that the Supreme 

Court found to be unconstitutional in Shelby County and so our ability to deploy them has been severely 

curtailed.”). 304 Cf. 52 U.S.C. § 10305(d) (“Observers shall be authorized to—(1) enter and attend at any place for holding an 

election in such subdivision for the purpose of observing whether persons who are entitled to vote are being 

permitted to vote; and (2) enter and attend at any place for tabulating the votes cast at any election held in such 

subdivision for the purpose of observing whether votes cast by persons entitled to vote are being properly 

tabulated.”) (emphasis added); see also Justin Levitt, Loyola L. Sch., Written Testimony for the U.S. Comm’n on 

Civil Rights, Feb. 2, 2018 at 15-16 [hereinafter Levitt, Written Testimony] (noting that in 2016 DOJ had sent more 

than 500 observers to observe elections in 67 jurisdictions in 28 states). 

305 52 U.S.C. § 10303(f)(4) (“Whenever any State or political subdivision subject to the prohibitions of the second 

sentence of subsection (a) provides any registration or voting notices, forms, instructions, assistance, or other 

materials or information relating to the electoral process, including ballots, it shall provide them in the language of 

the applicable language minority group as well as in the English language: Provided, That where the language of the 

applicable minority group is oral or unwritten or in the case of Alaskan Natives and American Indians, if the 

predominate language is historically unwritten, the State or political subdivision is only required to furnish oral 

instructions, assistance, or other information relating to registration and voting.”) (emphasis added); 52 U.S.C. § 

10303(b). 

306 DOJ Fact Sheet, supra note 12. 307 Id.
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 59

4(f)(4) no longer have to provide language access (unless they are also covered under other

minority language provisions of the VRA).

Finally, the very process of preclearance required that jurisdictions provide data about the racial

impact of any proposed voting changes, and that the DOJ contact minority community members

in the jurisdiction to investigate the impact on their communities.308 Absent preclearance, DOJ is

no longer required to contact minority community members regarding their views, and affected

jurisdictions are no longer required to provide to DOJ data regarding the racial impact of proposed

voting changes.

Summary of the Impact

1. Voting changes go into effect immediately, unless litigation is quickly brought and 

successfully secures a preliminary injunction under the remaining provisions of the 

VRA, the Constitution, or another state or federal law;

2. DOJ is no longer sending federal observers to formerly covered jurisdictions (unless 

they are separately ordered by a court);

3. DOJ no longer believes that previously covered jurisdictions have to provide language 

access under Section 4(f)(4);

4. Neither the DOJ nor voters have the right to receive notice of changes in voting 

procedures, shifting the burden of monitoring election changes to voting rights groups, 

and imposing a large burden on communities, who must now stretch limited resources 

to track changes themselves in the absence of government transparency;

309

5. Section 5’s rule against retrogression, or determining the impact of voting changes on 

minority voters as compared to a prior benchmark, is no longer in operation;

6. Formerly covered jurisdictions no longer have to provide the DOJ or the public 

information or notice about the racial impact of their voting changes; and

 

308 28 C.F.R. § 51.27(n) (Required contents) (“a statement of the anticipated effect of the change on members of 

racial or language minority groups.”); 28 C.F.R. § 51.38 (Processing of [Section 5] Submissions, Obtaining 

Information From Others).

309 See, e.g., Democracy North Carolina, Election Board Monitoring, https://democracync.org/take-action/board-ofelections-monitoring (last accessed June 6, 2018); see also Go Vote Georgia, Election Board Monitoring, 

https://www.govotega.org/current-issues/election-board-monitoring (last accessed June 6, 2018); see also Common 

Cause Georgia, Help Wanted: Sign Up to Monitor Local Board of Elections for Voter Suppression, 

https://159georgiatogether.org/159-civic-engagement/2017/9/10/help-wanted-sign-up-to-monitor-local-board-ofelections-for-voter-suppression (last accessed June 6, 2018); see also Patin, The Voting Rights Act at 50, supra note 

206; see also Tomas Lopez, Executive Director, Democracy North Carolina, Written Testimony for the U.S. 

Comm’n on Civil Rights, Feb. 2, 2018 [hereinafter Lopez, Written Testimony] (Lopez states that since 2013, 

Democracy North Carolina has: established a program monitoring the activities of county-level boards of elections 

(CBOEs), which determine critical ballot access policies; established a poll monitoring program to document the 

impact of changes to state voting rules in H.R. 589 on voters and the voting experience; engaged in substantial 

public education efforts to inform the general public about changes in state and local voting rules, including those 

relating to H.R. 589 and related litigation; and participated as plaintiffs in litigation to remedy voting rights 

violations).
60 An Assessment of Minority Voting Rights Access

7. DOJ no longer regularly reaches out to members of impacted communities to hear their 

point of view about the impact of proposed voting changes.310

Immediate Post-Shelby County Impact on Minority Voting Rights

Within two hours after the Supreme Court issued its decision in the Shelby County case, the Texas

state Attorney General tweeted that the state would immediately reinstitute its strict photo ID

law,311 which had previously been struck down by a federal court under the VRA’s prior

preclearance procedures. The day after the Shelby County decision, the North Carolina General

Assembly amended a pending bill to make its voter ID law stricter, and added other provisions

eliminating or restricting opportunities to vote that had been beneficial to minority voters.312

Federal courts later found these actions in both states to be intentionally racially discriminatory,

after years of litigation.

313 But in the intervening years before the litigation process led to their

being struck down, the discriminatory provisions went into effect in elections.314

In the post-Shelby County era, new state restrictions on voting have resulted in at least 10 final

findings of Section 2 violations by federal courts,315 and there are other indicia of ongoing

discrimination in voting in the formerly covered jurisdictions and in other states.316 Whether and

how current conditions across the nation evidence racial discrimination in voting is examined in

depth in the following sections and chapters of this report.

North Carolina and Texas, Before and After the Shelby County Decision

In this section, the Commission analyzes the status of voting rights challenges in North Carolina

and Texas, where some of the most intense litigation over VRA issues in this era occurred. The

Commission’s report examines conditions from the 2006 VRA Reauthorization to the present,

including before and after the June 25, 2013 Shelby County decision. Cases in these two states

show several fact patterns: changes that were previously not cleared by the federal government

were immediately implemented; the changes remained in effect through several elections despite

 

310 28 C.F.R. §§ 51.33-51.50 (DOJ Processing of [Section 5] Submissions, covering notice, release of information to 

public, consideration, obtaining information from submitting authority, supplemental information and related 

submissions, judicial review and record of decisions). 311 Greg Abbott (@GregAbbott_TX), Twitter (Jun. 25, 2013 9:19 AM), 

https://twitter.com/GregAbbott_TX/status/349532390336643075 (last accessed May 1, 2018). 312 See The Post-Shelby County Voter Information Verification Act (VIVA/HB 589), at notes 336-42, infra. 313 See Findings of Discriminatory Intent, at notes 354-69, infra. 314 See One of Several Preliminary Injunctions Nullified by the Supreme Court Just Prior to the 2014 Election, at 

note 347-53, infra (noting that in major VRA cases including in North Carolina and Texas, limited preliminary 

injunctions were stayed by the Supreme Court, just prior to the November 2014 election). 315 Chapter 4 of this report documents these cases. 316 Chapter 3 of this report documents various types of voting changes in this era, and their impact on minority 

voters.
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 61

courts’ eventual findings that the changes were racially discriminatory; and judicial preclearance

was not ordered in the wake of findings of racially discriminatory changes.

In North Carolina, there were ongoing VRA violations up until 2006, and prior to Shelby County.

317

Moreover, immediately after the Shelby County decision, minority voters were subjected to

cutbacks in same-day registration, early voting, and out-of-precinct voting, along with a strict voter

ID law, all of which were found by a federal court of appeals to be intentionally discriminatory.

318

In Texas, there was a high number of ongoing VRA violations continuing into the post-2006 VRA

Reauthorization, pre-Shelby County era.319 But the impact of Shelby County was felt soon after the

decision, when Texas’ strict voter ID law that had been struck down under preclearance was

immediately put back into place.320 An amended, less strict voter ID law was recently adopted in

Texas;321 but despite intense litigation under Section 2, three years had passed with the state’s

original, strict voter ID law in place, which federal courts have found was enacted with intentional

discrimination against black and Latino voters.

322

The impact of the loss of preclearance is also evident through intervening elections in both states.

In both North Carolina and Texas, multiple elections were held, during which practices were

applied that federal courts determined to have been intentionally racially discriminatory and in

violation of longstanding constitutional and federal law.323

Even when intentional discrimination has been proven, it has been challenging for minority voters

to receive the protections of judicial preclearance. The judicial preclearance provision of the VRA

is one of the statute’s remaining provisions,324 and some advocates argue that it will suffice in the

place of the former federal administrative preclearance provisions that were struck down by the

 

317 See N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204, 224-25 (4th Cir. 2016) (several Section 

5 objections since 2000, with 55 successful Section 2 cases from 1980-2013). The Fourth Circuit held that North 

Carolina “state officials continued in their efforts to restrict or dilute African American voting strength well after 

1980 and up to the present day.” 

318 Id. at 215-18. 319 See Chapter 5, Evaluation of the DOJ’s Enforcement Efforts Since the 2006 VRA Reauthorization and the 2013 

Shelby County Decision, Table 13 infra, and Sources cited therein. 320 See Discussion and Sources cited in section on Texas, notes 405-20, infra. 321 S.B. 5, 85th Leg., Reg. Sess. (Tex. 2017), https://legiscan.com/TX/text/SB5/id/1625211/Texas-2017-SB5-

Enrolled.html (last accessed July 26, 2018) [hereinafter Texas Senate Bill 5]. 322 Veasey, 830 F.3d at 241 (finding sufficient evidence of racially discriminatory intent for remand to the district 

court). 323 See Discussion and Sources cited in notes 347-53 and 530 (intervening elections in North Carolina), and 443-44 

and 531 (intervening elections in Texas), infra. Litigators from the DOJ and the nonprofit sector representing 

minority voters tried to get preliminary injunctions to stop discriminatory procedures from being implemented in 

elections. But as documented below, they were only partially successful, and the Supreme Court overturned them. 

See Discussion and Sources cited in notes 347-51. The Commission notes that the communities most impacted are 

minority voters, as federal courts’ findings of Section 2 violations in both states show that members of these groups 

had “less opportunity than other members of the electorate to participate in the political process and to elect 

representatives of their choice.” 52 U.S.C. § 10301(b). 324 Shelby Cty., 570 U.S. at 557.
62 An Assessment of Minority Voting Rights Access

Shelby County decision.325 Judicial preclearance enables a court to order that any changes in voting

procedures have to be precleared by the court before they could be implemented, in jurisdictions

where there has been a federal judicial finding of ongoing, intentional discrimination.326 It’s

application is discretionary.327 The DOJ was apt at winning judicial preclearance such decrees in

about a dozen prior cases.328 However, in the post-Shelby County era, Section 3 remedies have

 

325 Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Heritage 

Foundation, Written Testimony for the U.S. Commission on Civil Rights, Feb. 2, 2018 at 8-9 [hereinafter von 

Spakovsky, Written Testimony].

326 52 U.S.C. § 10302(c); see also Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. 1990), appeal dismissed 111 S. Ct. 

1096, on subsequent appeal 992 F.2d 826, on remand 835 F. Supp. 1101 (upon finding violation of voting 

guarantees of 14th and 15th Amendments (which require proof of intent), court has discretion in determining 

whether to order a judicial preclearance remedy)). 327 The statutory language includes the term “shall,” but it is limited to equitable relief, which is a subjective test. 52 

U.S.C. § 10302(c) (“If in any proceeding instituted by the Attorney General or an aggrieved person under any 

statute to enforce the voting guarantees of the 14th or 15th amendment in any State or political subdivision the court 

finds that violations of the 14th or 15th amendment justifying equitable relief have occurred within the territory of 

such State or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for 

such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or 

standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding 

was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, 

practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to 

vote on account of race or color[.]”) (emphasis added). 328 See, e.g., Brief for Respondent, Shelby Cty. v. Holder, 2013 WL 315242 (U.S.), Jurisdictions That Have Been 

Ordered by a District Court to Comply With Preclearance Requirement Pursuant to Bail-in Mechanism in Section 

3(c) of the Voting Rights Act: 

(1) Thurston County, Nebraska, see United States v. Thurston Cty., C.A. No. 78-0-380 (D. Neb. May 9, 1979); 

(2) Escambia County, Florida, see McMillan v. Escambia Cty., C.A. No. 77-0432 (N.D. Fla. Dec. 3, 1979) (559 F. 

Supp. 720 (N.D. Fla. 1983); 

(3) Alexander County, Illinois, see Woodring v. Clarke, C.A. No. 80-4569 (S.D. Ill. Oct. 31, 1983); 

(4) Gadsden County School District, Florida, see N.A.A.C.P. v. Gadsden City Sch. Bd., 589 F. Supp. 953 (N.D. Fla. 

1984); 

(5) State of New Mexico, see Sanchez v. Anaya, C.A. No. 82-0067M (D.N.M. Dec. 17, 1984); 

(6) McKinley County, New Mexico, see United States v. McKinley Cnty., No. 86-0029-C (D.N.M. Jan. 13, 1986); 

(7) Sandoval County, New Mexico, see United States v. Sandoval Cty., C.A. No. 88-1457-SC (D.N.M. May 17, 

1990); 

(8) City of Chattanooga, Tennessee, see Brown v. Bd. of Comm’rs of City of Chattanooga, No. CIV-1-87-388 (E.D. 

Tenn. Jan. 18, 1990); 

(9) Montezuma-Cortez School District RE01, Colorado, see Cuthair v. Montezuma-Cortez Sch. Dist. No. RE-1, No. 

89-C-964 (D. Col. Apr. 8, 1990); 

(10) State of Arkansas, see Jeffers v. Clinton, 740 F. Supp. 585 (E.D. Ark. 1990), appeal dismissed, 498 U.S. 1129 

(1991); 

(11) Los Angeles County, California, see Garza v. Los Angeles Cty., C.A. Nos. CV 88-5143 KN (Ex) and CV 88-

5435 KN (Ex) (C.D. Cal. Apr. 26, 1991); 

(12) Cibola County, New Mexico, see United States v. Cibola Cty., C.A. No. 93-1134-LH/LFG (D.N.M. Apr. 21, 

1994); 

(13) Socorro County, New Mexico, see United States v. Socorro Cty., C.A. No. 93-1244-JP (D.N.M. Apr. 11, 1994); 

(14) Alameda County, California, see United States v. Alameda Cty., C.A. No. C 95-1266 (SAW) (N.D. Cal. Jan. 22, 

1996); 
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 63

been granted through federal court opinions in only two known cases.329 Similarly, Section 3(a)

permits courts to order that federal observers be deployed to monitor elections, either under an

interlocutory order or through a final judgment, if intentional discrimination has been found and

the court considers this relief necessary.330 Considering that the DOJ is no longer sending federal

observers to formerly covered jurisdictions,331 these provisions could be useful in the post-Shelby

County era.

However, as this section documents, to date, judicial preclearance was not ordered in what may be

the most harmful instance of intentional discrimination in the post-Shelby County era, in which

minority voters were targeted “with almost surgical precision.”332 Future litigation may show that

judicial preclearance will be more available in the post-Shelby County era, but as shown below, in

North Carolina and Texas, this alternative method of preclearance has been elusive.

North Carolina

The Commission held its national voting rights briefing in North Carolina,

333 where significant

legislation, litigation, and statewide discussion of voting rights issues have arisen. The following

section documents the effects of the Voter Information Verification Act (HB 589), which the state

legislature enacted immediately after the Shelby County decision.334 This section also documents

the pre-Shelby County history of discrimination in voting in North Carolina, and a federal court of

appeals holding regarding its ongoing impact.

The Post-Shelby County Voter Information Verification Act (VIVA/HB 589)

Within two months of the Shelby County decision, North Carolina enacted the Voter Information

Verification Act (VIVA or HB 589).335 This bill put in place a strict photo ID law336 and cut back

 

(15) Bernalillo County, New Mexico, see United States v. Bernalillo Cty., C.A. No. 93-156-BB/LCS (D.N.M. Apr. 

22, 1998);

(16) Buffalo County, South Dakota, see Kirke v. Buffalo Cty., C.A. No. 03-CV-3011 (D.S.D. Feb. 10, 2004); 

(17) Charles Mix County, South Dakota, see Blackmoon v. Charles Mix Cty., C.A. No. 05-CV-4017 (D.S.D. Dec. 4, 

2007); and 

(18) Village of Port Chester, New York, see United States v. Village of Port Chester, C.A. No. 06-CV-15173 

(S.D.N.Y. Dec. 22, 2006).

329 See Allen v. City of Evergreen, 2014 WL 12607819, No. 13-0107 (S.D. Ala. 2014); Patino v. City of Pasadena, 

230 F. Supp. 3d 667 (S.D. Tex. 2017). 330 52 U.S.C. § 10302(a). 331 See Discussion and Sources cited in The Impact of Shelby County on Federal VRA Enforcement, supra notes 

309-10 (regarding DOJ Fact Sheet with decision to no longer send observers to formerly covered jurisdictions). 332 McCrory, 831 F.3d. at 214. 333 Press Release, U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS, supra note 4. 334 General Assembly of North Carolina, H.R. 589, supra note 206. 335 Id. 336 Strict photo ID laws are defined as those requiring a state-issued photo identification with current name and 

address in order to vote (rather than voter registration cards or more accessible forms of ID). These types of IDs 

require underlying documentary proof of citizenship such as birth certificates or naturalization papers. See

Discussion and Sources cited in Chapter 2, Section 1 at notes 464-65, infra.
64 An Assessment of Minority Voting Rights Access

or eliminated registration and voting procedures.337 The North Carolina State Conference of the

National Association for the Advancement of Colored People (NC NAACP), the North Carolina

League of Women Voters, and several other local groups and individuals sued the state of North

Carolina over HB 589. The DOJ also filed suit against North Carolina, and its lawsuit was

combined with the other actions.

338 Plaintiffs alleged violations of Section 2 of the VRA, for

discriminatory intent and effect, as well as violations of the 14th, 15th, and 26th Amendments of the

U.S. Constitution.339 After three-and-one-half years of litigation, the Fourth Circuit Federal Court

of Appeals340 held that HB 589’s strict photo ID law, along with its cuts to same-day registration,

early voting, and out-of-precinct voting, were enacted with illegal intentional discrimination

targeting African Americans “with almost surgical precision.”341 Between 2013 and 2017, the

State spent over five million dollars defending election changes stemming from HB 589.342

Preliminary Injunction Temporarily Halting Some Discriminatory Provisions

As 2014 began, plaintiffs were concerned about the impact of the comprehensive cutbacks on voter

access in upcoming midterm elections, including in early voting. The North Carolina NAACP

requested a preliminary injunction on May 19, 2014, but on August 8, 2014, the federal district

court denied it.343 Plaintiffs appealed, and on October 1, 2014, the Fourth Circuit Court of Appeals

partially reversed the lower court’s decision and issued a preliminary injunction,344 but it only

applied to block the elimination of same-day registration and counting out-of-precinct ballots, as

 

337 N. Carolina NAACP v. McCrory, 997 F. Supp. 2d 332, 334 (M.D.N.C. 2014). 338 Id. 339 Id. 340 Id. For a description of federal courts of appeals, see United States Courts, Court Role and Structure, Court of 

Appeals, http://www.uscourts.gov/about-federal-courts/court-role-and-structure (last accessed July 26, 2018) 

(“There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the U.S. Courts of 

Appeals. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of 

appeals. The appellate court’s task is to determine whether or not the law was applied correctly in the trial court.”); 

see also U.S. Courts, How Appellate Courts are Different from Trial Courts, http://www.uscourts.gov/about-federalcourts/court-role-and-structure/about-us-courts-appeals (last accessed July 26, 2018). (“At a trial in a U.S. District 

Court, witnesses give testimony and a judge or jury decides who is guilty or not guilty—or who is liable or not 

liable. The appellate courts do not retry cases or hear new evidence. They do not hear witnesses testify. There is no 

jury. Appellate courts review the procedures and the decisions in the trial court to make sure that the proceedings 

were fair and that the proper law was applied correctly.”). 341 McCrory, 831 F.3d at 214. 342 NAACP Legal Defense and Educational Fund, Democracy Diminished: State and Local Threats to Voting PostShelby County, Alabama v. Holder 34 (2018), 

http://www.naacpldf.org/files/case_issue/States%27s%20responses%20post%20Shelby%206.22.18.pdf [hereinafter

NAACP LDF, Democracy Diminished]. 343 McCrory, 997 F. Supp. 2d at 354. 344 The Fourth Circuit considered that plaintiffs met the high standard set by the Supreme Court for a preliminary 

injunction: plaintiffs were likely to succeed on the merits of their Section 2 claims against these practices; the 

plaintiffs were likely to suffer irreparable harm absent an injunction; the balance of hardships weighed in their favor; 

and the injunction was in the public interest. League of Women Voters of N. Carolina, 769 F.3d 224, 236 (4th Cir. 

2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (standard for preliminary injunction)).
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 65

there was evidence that these measures most clearly targeted black voters.

345 The appeals court

denied preliminary injunctive relief regarding the other challenged provisions, because plaintiffs

could not show that they would be immediately harmed in the upcoming election.346

One of Several Preliminary Injunctions Nullified by the Supreme Court Just Prior to the

2014 Election

Implementation of North Carolina’s elimination of same-day registration and out-of-precinct

voting would have been enjoined during the November 2014 election; however, on October 8,

2014, the Supreme Court stayed the Fourth Circuit’s injunction.347

In the months before the 2014 federal election, in cases in Ohio, North Carolina, Wisconsin, and

Texas, plaintiffs tried to bring complex cases as quickly as possible, in order to secure relief from

allegedly discriminatory provisions before they could be implemented during the upcoming

 

345 League of Women Voters of N. Carolina, 769 F.3d at 244-45. The Fourth Circuit took into account that 

“Plaintiffs’ expert presented unrebutted testimony that African American North Carolinians have used same-day 

registration at a higher rate than whites in the three federal elections during which it was offered. Specifically, in 

2012, 13.4 percent of African American voters who voted early used same-day registration, as compared to 7.2

percent of white voters; in the 2010 midterm, the figures were 10.2 percent and 5.4 percent, respectively; and in 

2008, 13.1 percent and 8.9 percent.” Id. at 233.

And with regard to out-of-precinct voting, the Fourth Circuit took into account that: 

The district court found that (1) between the years 2006 and 2010, an average of 17.1 percent of African 

Americans in North Carolina moved within the State, as compared to only 10.9 percent of whites; and (2) 27

percent of poor African Americans in North Carolina lack access to a vehicle, compared to 8.8 percent of 

poor whites...According to calculations the district court accepted, the total number of African Americans 

using out-of-precinct voting represents 0.342 percent of the African American vote in that election. The total 

share of the overall white vote that voted out-of-precinct was 0.21 percent. Id. House Bill 589 bars county 

boards of elections from counting such ballots. Id. at 233-34 (internal citations omitted).

The Fourth Circuit did not preliminarily enjoin the cuts to early voting, despite the evidence that “in 2010, 36

percent of all African American voters that cast ballots utilized early voting, as compared to 33.1 percent of white 

voters. By comparison, in the presidential elections of 2008 and 2012, over 70 percent of African American voters 

used early voting compared to just over 50 percent of white voters.” Id. at 234. This was because the court of 

appeals considered that a preliminary injunction would pose “significant risk” of “substantial burden” to the State, 

due to the fact that the ruling was issued only two weeks before the start of the full early voting schedule, were it to 

be restored. Id. at 236. 346 Id. at 236-37. Notably, the photo ID provision was difficult to enjoin because unlike the other provisions of HB 

589 taking immediate effect, it was subject to a “soft roll-out” in which it would be implemented later in time. Id. at 

230 (soft roll-out) and 237 (preliminary injunction denied despite concerns about lack of poll worker training to 

properly implement soft roll-out; although injury may be shown at trial, irreparable injury in upcoming election was 

“speculative”).

347 North Carolina v. League of Women Voters of N. Carolina, 135 S. Ct. 6 (2014); League of Women Voters of N. 

Carolina, 769 F.3d 224. On April 6, 2015, the Supreme Court denied certiorari on the case and effectively restored 

the Fourth Circuit’s partial preliminary injunction. North Carolina v. League of Women Voters of N. Carolina, 135

S. Ct. 1735 (2015). This meant that in North Carolina, same-day registration and out-of-precinct voting were 

temporarily restored until there was a decision on the merits—but this was after the November 2014 election had 

already occurred. McCrory, 831 F.3d at 219. Furthermore, implementation of the other challenged provisions of HB 

589—including others that were also later found to be unconstitutional due to being intentionally racial 

discriminatory—was never enjoined. Id.
66 An Assessment of Minority Voting Rights Access

election. But in a series of rapid decisions in which both plaintiffs and defendants asked for

emergency stays, from September 24-October 18, the Supreme Court decided against making any

changes to existing voting procedures too close to the election.348 The Court so ruled even with

regard to those changes that would seem to be designed to prevent irreparable harm to voters in

the upcoming election.349 In addition, these decisions were inconsistent, as preliminary injunctions

were upheld in Ohio and Wisconsin (where discriminatory effect, but not intent, was found), but

not in North Carolina or Texas (where intentional discrimination had been found).350 Another new

development was that in deciding on these post-Shelby County preliminary injunctions, the Court

effectively counted new voting restrictions as the existing procedures that should not be changed

too close to an election.351 In contrast, under Section 5, the benchmark was considered to be the

conditions prior to the new voting changes.

352 Moreover, under Section 5, the new restrictions

would not have gone into effect in the first place in North Carolina and Texas.

353

Findings of Discriminatory Intent

After appeal, in its final ruling on the merits in 2016, the Fourth Circuit held that in enacting HB

589, the North Carolina state legislature and governor had violated the VRA’s prohibition against

intentional discrimination under Section 2, as well as the 14th Amendment to the United States

Constitution.354 The federal court of appeals held that HB 589’s strict voter ID law,355 cuts to early

 

348 Husted v. Ohio Conference of N.A.A.C.P., 135 S. Ct. 42 (2014); North Carolina, 135 S. Ct. 6; Frank v. Walker, 

135 S. Ct. 7 (2014); Veasey v. Perry, 135 S. Ct. 9 (2014). 349 See, e.g., North Carolina, 135 S. Ct. 6 and discussion above. 350 Veasey v. Perry, 769 F.3d 890, 892, 895 (5th Cir. 2014). 351 See, e.g., Veasey, 135 S. Ct. at 10 (2014) (Ginsburg, J., dissenting) (“Texas need only reinstate the voter 

identification procedures it employed for ten years (from 2003 to 2013) and in five federal general elections. To 

date, the new regime, Senate Bill 14, has been applied in only three low-participation elections—namely, two 

statewide primaries and one statewide constitutional referendum, in which voter turnout ranged from 1.48 percent to 

9.98 percent.”). 352 Beer, 425 U.S. at 141 (under preclearance, voting changes must be measured against the benchmark practice to 

determine whether they would “lead to a retrogression in the position of racial minorities with respect to their 

effective exercise of the electoral franchise.”). 353 52 U.S.C. § 10304(a). 354 McCrory, 831 F.3d. at 219. 355 Id. This was the holding even though North Carolina amended its voter ID law, such that voters who declare they 

had a reasonable impediment to getting current, government-issued photo ID with their current name and address 

may be challenged by another voter, whether or not they were from the same county. H.R. 836, Gen. Assemb., §§ 

163-82.1B(a) (N.C. 2015) [hereinafter North Carolina General Assembly, H.R. 836]. 

North Carolina voters also have to present their current voter registration card, or the last four digits of their social 

security number and date of birth as part of the reasonable impediment declaration process. North Carolina General 

Assembly, H.R. 836, §§ 163-66.15(c). Also, their provisional ballot would not be counted if they were challenged 

by another voter with grounds “to believe the [reasonable impediment] declaration is factually false, merely 

denigrated the photo identification requirement, or made obviously nonsensical statements;” or if the voter’s 

registration could not be confirmed, or if they were otherwise disqualified. Id. at §§ 163-82.1B(a).

Anita Earls, former Executive Director of the Southern Coalition for Social Justice, testified before the Commission 

about the “reasonable impediments” procedure not being well-implemented, because the list of reasonable 

impediments was so narrow and interpreted in limiting ways by poll workers. See Anita Earls, Former Executive 
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 67

voting, same-day registration, out-of-precinct voting, and pre-registration were enacted “with

discriminatory intent” and “target[ed] African American [voters] with almost surgical

precision.”356 The factors examined included the sequence of events leading up to enactment:

[A]fter Shelby County it [the North Carolina legislature] moved forward with what

it acknowledged was an omnibus bill that restricted voting mechanisms it knew

were used disproportionately by African Americans, and so likely would not have

passed preclearance. And, after Shelby County, the legislature substantially

changed the one provision that it had fully debated before. As noted above, the

General Assembly completely revised the list of acceptable photo IDs, removing

from the list the IDs held disproportionately by African Americans, but retaining

those disproportionately held by whites. This fact alone undermines the possibility

that the post-Shelby County timing was merely to avoid the administrative costs.357

The fact that the legislature also asked for data about the racial impact of each and every one of

the contemplated changes, found that they would have a racially discriminatory impact, and then

enacted those changes without any further debate, also indicated discriminatory purpose.358 The

Fourth Circuit also found it probative that the data revealed that white voters disproportionately

used absentee voting, yet the state legislature did not restrict absentee voting in any way. Instead,

the new law “drastically restricted all of these other forms of access to the franchise, but exempted

absentee voting from the photo ID requirement.”359 The court went on to conclude that “[i]n sum,

relying on this racial data, the General Assembly enacted legislation restricting all—and only—

 

Director, Southern Coalition for Social Justice, Written Testimony for the U.S. Commission on Civil Rights, Feb. 2, 

2018 [hereinafter Earls, Written Testimony]. 356 McCrory, 831 F.3d. at 214-15. 357 Id. at 229 (internal citations omitted). 358 Id. at 216. 359 Id. at 230.
68 An Assessment of Minority Voting Rights Access

practices disproportionately used by African Americans.”360 Additionally, taken altogether, the

discriminatory effect was cumulative.361

 

360 Id. at 230. Regarding the strict photo ID law:

[D]ata showed that African Americans disproportionately lacked the most common kind of photo ID 

[required], those issued by the Department of Motor Vehicles (DMV). The pre-Shelby County version 

of SL 2013-381 provided that all government-issued IDs, even many that had been expired, would 

satisfy the requirement as an alternative to DMV-issued photo IDs. J.A. 2114-15. After Shelby County, 

with race data in hand, the legislature amended the bill to exclude many of the alternative photo IDs 

used by African Americans. As amended, the bill retained only the kinds of IDs that white North 

Carolinians were more likely to possess. McCrory, 831 F.3d. at 216.

Regarding the cuts to early voting: “60.36 percent and 64.01 percent of African Americans voted early in 2008 and 

2012, respectively, compared to 44.47 percent and 49.39 percent of whites . . . In particular, African Americans 

disproportionately used the first seven days of early voting.” McCrory, 831 F.3d at 216 (citing McCrory, 182 F.

Supp. 3d 320 (M.D.N.C. 2016), reversed and remanded by McCrory, 831 F.3d 204).

Regarding elimination of same-day registration:

The legislature’s racial data demonstrated that, as the district court found, “it is indisputable that 

African American voters disproportionately used [same-day registration] when it was available.” . . . 

African American registration applications constituted a disproportionate percentage of the incomplete 

registration queue. And the court found that African Americans “are more likely to move between 

counties,” and thus ‘are more likely to need to re-register.’ As evidenced by the types of errors that 

placed many African American applications in the incomplete queue, in-person assistance likely would

disproportionately benefit African Americans. McCrory, 831 F.3d. at 217-18 (internal citations 

omitted).

Regarding elimination of out-of-precinct voting:

Legislators additionally requested a racial breakdown of provisional voting, including out-of-precinct 

voting . . . which required . . . each county to count the provisional ballot of an Election Day voter who 

appeared at the wrong precinct, but in the correct county, for all of the ballot items for which the voter 

was eligible to vote. This provision assisted those who moved frequently . . . 

The district court found that the racial data revealed that African Americans disproportionately voted 

provisionally. In fact, the General Assembly that had originally enacted the out-of-precinct voting 

legislation had specifically found that “of those registered voters who happened to vote provisional 

ballots outside their resident precincts’ in 2004, ‘a disproportionately high percentage were African 

American.’” With SL 2013-381, the General Assembly altogether eliminated out-of-precinct voting. 

McCrory, 831 F.3d. at 217.

Regarding elimination of pre-registration of 16- and 17-year-olds:

African Americans also disproportionately used preregistration. Preregistration permitted 16- and 17-

year-olds, when obtaining driver’s licenses or attending mandatory high school registration drives, to 

identify themselves and indicate their intent to vote. This allowed County Boards of Elections to verify 

eligibility and automatically register eligible citizens once they reached eighteen. Although 

preregistration increased turnout among young adult voters, SL 2013-381 eliminated it. McCrory, 831 

F.3d at 217-18.

360 The Fourth Circuit reasoned that “a court must be mindful of the number, character, and scope of the 

modifications enacted together in a single challenged law . . . Only then can a court determine whether a legislature 
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 69

Finally, the federal court of appeals also took into account the tenuous relationship between the

asserted reasons for the restrictions—“to combat voter fraud and promote public confidence in the

electoral system”—and the record evidence that the legislature would not have enacted its photo

ID requirement “if it had no disproportionate impact on African American voters.”362 In particular,

the state had been unable to “identify even a single individual who has ever been charged with

committing in-person voter fraud in North Carolina.”363 The overbreadth of the voter ID

requirement was considered to be “most stark in the General Assembly’s decision to exclude as

acceptable identification all forms of state-issued ID disproportionately held by African

Americans.”364 Similarly, the opinion states that the State’s proffered administrative interests in

eliminating same-day registration, cutting early voting (particularly on Sundays), and eliminating

out-of-precinct voting were not logical, and the goals could have been accomplished by

nondiscriminatory means.365 And regarding eliminating pre-registration of 16- and 17-year olds,

which was also disproportionately used by African-American voters, the sponsor of the law said

 

would have enacted the law regardless of its impact on African American voters.” McCrory, 831 F.3d at 234. It 

considered that: 

For example, the photo ID requirement inevitably increases the steps required to vote, and so slows the process. 

The early voting provision reduced the number of days in which citizens can vote, resulting in more voters 

voting on Election Day. Together, these produce longer lines at the polls on Election Day, and absent out-ofprecinct voting, prospective Election Day voters may wait in these longer lines only to discover that they have 

gone to the wrong precinct and are unable to travel to their correct precincts. Thus, cumulatively, the panoply of 

restrictions results in greater disenfranchisement than any of the law’s provisions individually. McCrory, 831 

F.3d. at 231.

362 McCrory, 831 F.3d at 235. The photo ID law was also complex because it was amended on June 18, 2015, on the 

eve of the July 2015 trial on the merits. The amendment permitted people who did not have an unexpired, state 

government-issued photo ID (excluding state-issued student IDs) to cast a provisional ballot if they completed a 

declaration under penalty of perjury that they had “reasonable impediment” to acquiring such an ID. See General 

Assembly of North Carolina, H.R. 836, § 8(d), https://www.ncleg.net/Sessions/2015/Bills/House/PDF/H836v6.pdf

(last accessed Aug. 3, 2018). North Carolina argued that this was akin to the reasonable impediment provision a 

federal court had approved under Section 5 of the VRA, in the case of South Carolina’s voter ID law. See

Discussion of South Carolina v. United States in Chapter 3, Section (A), and Sources cited therein at notes 506-08, 

infra. But North Carolina’s law was more stringent as North Carolina voters would be required to list the specific 

reasonable impediment under penalty of perjury. General Assembly of North Carolina, H.R. 836, §§ 163-66.15(e), 

requiring the voter to check one of the following boxes, under penalty of perjury:

a. Lack of transportation. 

b. Disability or illness. 

c. Lack of birth certificate or other documents needed to obtain photo identification. 

d. Work schedule. 

e. Family responsibilities. 

f. Lost or stolen photo identification. 

g. Photo identification applied for but not received by the voter voting in person. 

h. Other reasonable impediment. If the voter checks the “other reasonable impediment” box, a further brief 

written identification of the reasonable impediment shall be required, including the option to indicate that 

State or federal law prohibits listing the impediment.

363 McCrory, 831 F.3d. at 235. 364 Id. at 236. 365 Id. at 236-39.
70 An Assessment of Minority Voting Rights Access

it was to “offer some clarity and some certainty as to when” a “young person is eligible to vote,”

but the Fourth Circuit concluded “that explanation does not hold water.”366 The Fourth Circuit held

that: “[HB 589 was] not tailored to achieve its purported justifications, a number of which were in

all events insubstantial. In many ways, the challenged provisions . . . constitute solutions in search

of a problem.”367 Because Section 5 also prohibited changesin voting proceduresthat were enacted

with unconstitutional intentional discrimination,368 it is clear that the provisions of HB 589 would

have been struck down and their implementation would have been prohibited under the prior

preclearance regime that the Supreme Court quashed in Shelby County.

369

Racially Polarized Voting and Ongoing History of Discrimination

In deciding that the State had violated the VRA, the Fourth Circuit also took into account high

levels of racially polarized voting in North Carolina. Under the VRA, racially polarized voting or

racial bloc occurs when “the white majority votes sufficiently as a bloc to enable it—in the absence

of special circumstances, such as the minority candidate running unopposed—usually to defeat the

minority’s preferred candidate.”370 In evaluating the role of racially polarized voting in the postShelby County VRA case in North Carolina, the Fourth Circuit noted that recent scholarship

suggested that in the years following President Obama’s election, racial discrimination and racially

polarized voting had increased in jurisdictions formerly covered by Section 5.371 The research

showed that, “[t]his gap is not the result of mere partisanship, for even when controlling for

partisan identification, race is a statistically significant predictor of vote choice, especially in the

covered jurisdictions.”372 The court of appeals recognized that racially polarized voting alone does

not prove racial discrimination, “[b]ut it does provide an incentive for intentional discrimination

in the regulation of elections.”373

Additionally, the Fourth Circuit took into account the impact of HB 589’s provisions with regard

to the history of discrimination in voting in North Carolina, which it considered to be extensive

and ongoing. While the trial court had found the record free of “official discrimination” from 1980

to 2013, the appeals court took into account that the DOJ had issued over 50 objection letters under

Section 5 regarding proposed election law changes in North Carolina from 1980 to 2013, including

 

366 Id. at 238. 367 Id. 368 52 U.S.C. § 10304(a); Beer, 425 U.S. at 141 (holding that reapportionment legislation that enhances the position 

of racial minorities in the electoral process does not violate Section 5 if it discriminates on the basis of race or color 

as to violate the constitutional protections against intentional discrimination). 369 Shelby Cty., 570 U.S. 529. 370 Gingles, 478 U.S. at 51 (internal citations omitted). 371 McCrory, 831 F.3d. at 221-22 (citing Stephen Ansolabehere, Nathaniel Persily & Charles Stewart III, Regional 

Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of 

Section 5 of the Voting Rights Act, 126 HARV. L. REV. F. 205, 206 (2013)). 372 Id. at 222 (quoting Ansolabehere, supra note 371) (alteration in original). 373 Id. 
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 71

several since 2000.374 Also during the same period, private plaintiffs brought 55 successful cases

under Section 2 of the VRA in North Carolina, and a few months before the Fourth Circuit

decision, a federal court had found that a redistricting plan enacted by the North Carolina General

Assembly violated the Equal Protection Clause of the U.S. Constitution because it was

impermissibly motivated by race.375 The Fourth Circuit held that “[t]he district court failed to take

into account these cases and their important takeaway: that state officials continued in their efforts

to restrict or dilute African American voting strength well after 1980 and up to the present day.”376

Considering this context, the court of appeals ruled that the legislature enacted HB 589 with

discriminatory intent. It emphasized that:

Our conclusion does not mean, and we do not suggest, that any member of the

General Assembly harbored racial hatred or animosity toward any minority group.

But the totality of the circumstances—North Carolina’s history of voting

discrimination; the surge in African American voting; the legislature’s knowledge

that African Americans voting translated into support for one party; and the swift

elimination of the tools African Americans had used to vote and imposition of a

new barrier at the first opportunity to do so—cumulatively and unmistakably reveal

that the General Assembly used SL 2013-381 [HB 589] to entrench itself. It did so

by targeting voters who, based on race, were unlikely to vote for the majority party.

Even if done for partisan ends, that constituted racial discrimination.377

The law requires that any voting changes based upon discriminatory purpose must be struck

down.378 Therefore, based on its conclusion that the North Carolina state legislature enacted HB

589 with racially discriminatory intent, the Fourth Circuit did not have to (and did not) address

whether HB 589 also violated Section 2’s prohibition of discriminatory effects. After several years

of litigation, the Fourth Circuit reversed and remanded the lower court’s decision, instructing that

it issue an order permanently enjoining HB 589’s intentionally discriminatory provisions. The

State petitioned to the Supreme Court, but on May 15, 2017, the Court declined the State’s petition

to review the case.379

Judicial Preclearance Denied

Plaintiffs and the DOJ had also requested judicial preclearance under Section 3 of the VRA, but

the court of appeals denied this request.380 Despite the findings of discriminatory purpose and

consequent violation of the 14th Amendment, the Fourth Circuit “decline[d] to impose any of the

 

374 Id. at 224 (citing U.S. Dep’t of Justice, Voting Determination Letters for North Carolina (DOJ Letters) (Aug. 7, 

2015), https://www.justice.gov/crt/voting-determination-letters-north-carolina) (further citations omitted). Twentyseven objections were to laws originating in or approved by the General Assembly. Id. 375 Id. at 224-25. 376 Id. at 225. 377 Id. at 233. 378 Id. at 240 (citing Veasey, 830 F.3d at 268). 379 North Carolina v. N. Carolina State Conference of NAACP, 137 S. Ct. 1399 (2017). 380 McCrory, 831 F.3d at 241.
72 An Assessment of Minority Voting Rights Access

discretionary additional relief available under § 3 of the Voting Rights Act, including imposing

poll observers during elections and subjecting North Carolina to ongoing preclearance

requirements.”381 Citing federal case law, it found that “[s]uch remedies ‘[are] rarely used’ and are

not necessary here in light of our injunction [of HB 589].”382 This may be because current case

law shows that judicial preclearance may only be granted if it is imperative—and regarding North

Carolina, the Fourth Circuit reasoned that its permanent injunction striking down HB 589 made

such remedies “not necessary.”383

Relevant Testimony and Ongoing Voting Rights Issues in North Carolina

During the Commission’s February 2 briefing, Bishop Dr. William Barber II, President and Senior

Lecturer of Repairers of the Breach, testified that in 2016 a Republican party official

produced and distributed a memo to Republican members of the County Board of

Elections instructing them to make party line decisions in drafting new early voting

plans, including voting against Sunday hours or voting and maintaining decreased

number of hours at sites, particularly on weekends. This resulted in 2016 [that there

were] 158 fewer early voting sites in the 40 previously covered counties, [than the

number of polling places] that we had in 2012. Thisis another example of [a] blatant

. . . attempt to block the power of the African-American and minority vote.384

His testimony is corroborated in detail by reporting summarizing the email records of the

Executive Director of the state’s Republican Party, Dallas Woodhouse, which were obtained by

public records request of The News & Observer.

385 Woodhouse’s emails were sent to Republican

members of county boards of elections, who are politically appointed.386 After the Fourth Circuit

ruled against HB 589’s reductions in early voting, county boards of elections still had to set and

vote upon the actual early voting schedules, as well as the number, location, and hours of polling

places to be open during early voting.387 In addition to the directions to reduce polling places, the

party Executive Director’s emails also told county election officials to end early voting on Sundays

(stating that “six days of voting . . . is enough”) and same-day registration (stating that it was only

available during early voting and “ripe with voter fraud, or the opportunity commit it”).388 And

regarding polling places on college campuses, the party chair wrote that: “No group of people are

entitled to their own early voting site, including college students, who already have more voting

 

381 Id. 382 Id. (quoting Conway Sch. Dist. v. Wilhoit, 854 F. Supp. 1430, 1442 (E.D. Ark. 1994)). 383 Id. 384 Briefing Transcript, supra note 234, at 41-42 (statement by Bishop Dr. William Barber II). 385 Colin Campbell, NC Republican Party Seeks “Party Line Changes” to Limit Early Voting, THE NEWS AND 

OBSERVER (Aug. 17, 2016), http://www.newsobserver.com/news/politics-government/election/article96179857.html

[hereinafter Campbell, NC Republican Party]. 386 Id. 387 Id. 388 Id.
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 73

options than most other citizens.”389 There may be VRA concerns regarding student voting issues

because they may (or may not) disparately impact student voters of color, especially on historically

black or Hispanic college campuses.390 Moreover, the younger generation attending colleges is

more racially diverse than older generations.391

In addition, Bishop Barber testified about the visible presence of KKK members and swastikas on

streets near pro-voting marches as well as derogatory comments from bystanders.392 For Barber,

this reemergence of voter suppression tactics in North Carolina is a result of the loss of

preclearance due to the Supreme Court’s decision in Shelby County.

393 The Commission notes that

because of high levels of racially polarized voting in North Carolina, targeting African-American

voters can be a way of targeting Democratic voters.394 The allegedly partisan motives for reducing

access to polling places are beyond the scope of this report; however VRA issues may possibly

arise when partisanship is mixed with racially discriminatory results (and/or intent),395 as was the

case in the cuts to early voting and other measures in HB 589 in North Carolina.396 Therefore, it is

possible, although still unproven, that the Republican Party State Executive Director’s proposed

elimination of 158 polling places could be of concern under Section 2 (and if it were still

applicable, Section 5). These issues show yet another likely negative impact of the loss of

preclearance: at the very least, it is impossible to know if there is a racially discriminatory impact

without the data that the preclearance process would have provided.397

 

389 Id. 390 See, e.g., Emily Foxhall, Waller County Backs Off Plan to Limit Early Voting, HOUSTON CHRONICLE (Jan. 5, 

2016), https://www.houstonchronicle.com/news/houston-texas/houston/article/Waller-Co-backs-off-plan-to-limitearly-voting-6739007.php (describing local officials’ plans to operate no early voting locations within walking 

distance of an HBCU campus). 

391 See, e.g., OurTime.org and the Advancement Project, The Time Tax: America’s Newest Form of Voter 

Suppression for Millennials, and How it Must be Eliminated to Make Voting Accessible for the Next Generation, 2-

3, OURTIME.ORG AND THE ADVANCEMENT PROJECT (Nov. 18, 2013), https://advancementproject.org/resources/thetime-tax/. 392 Bishop Dr. William Barber II, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 [hereinafter

Barber, Written Testimony]. 393 Id. 394 See, e.g., McCrory, 831 F.3d at 214. Notably, according to NC GOP Executive Director Woodhouse, the 

Democratic Party was also involved in advocacy regarding early voting. See Campbell, NC Republican Party, supra

note 385. 395 League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 440 (2006); see also Discussion and Sources cited in 

Chapter 4, Section B at notes 1334-37 (discussion of allegations of partisanship in voting rights litigation; discussion 

of partisanship mixed with racial discrimination). 396 McCrory, 831 F.3d at 216 (“The racial data provided to the legislature revealed that African Americans 

disproportionately used early voting in both 2008 and 2012,” particularly the first seven days and during “souls-tothe-polls Sundays in which African American churches provided transportation to voters.”) and 238 (“The only clear 

factor linking these various ‘reforms’ is their impact on African American voters. The record thus makes obvious 

that the ‘problem’ the majority in the General Assembly sought to remedy [by cutting early voting and other 

reforms] was emerging support for the minority party. Identifying and restricting the ways African Americans vote 

was an easy and effective way to do so.”).

397 See 28 C.F.R. §§ 51.33-51.50 (preclearance regulations), supra note 310.
74 An Assessment of Minority Voting Rights Access

In addition, there is current litigation about alleged discriminatory challenges of voters in North

Carolina, which is discussed in Chapter 3, in the Current Voter Registration Issues section of this

report.

398

Most recently, on June 7, 2018, North Carolina House Speaker Tim Moore and other House

Republicans proposed a ballot measure for the November 2018 election through which voters

would decide on a constitutional amendment requiring voter ID.399 The proposed ballot language

is as follows: “Photo identification for voting in person. Every person offering to vote in person

shall present photo identification before voting in the manner prescribed by law.”400 Their

amendment would leave the actual voter ID requirements up to the state legislature, although it

would not cover absentee voting,401 which is disproportionately used by whites in the state.402

While the bill sponsor stated that the constitutional amendment is “a commonsense measure to

secure the integrity of our elections system[;]” Allison Riggs of the Southern Coalition for Social

Justice commented that, “It’s certainly not constitutional to embed discrimination in the state

constitution.”403

Texas

The state of Texas has the highest number of recent VRA violationsin the nation,

404 and that record

renders in depth analysis of the state’s importance in this report. Moreover, during its recent

national field briefing on voting rights in North Carolina, the Commission received extensive

testimony concerning voting rights access issues in Texas. The following section documents the

effect of strict voter ID legislation in Texas, relevant litigation, and its impact on minority voters.

Ongoing Voter ID Litigation in Texas Spansthe Pre- and Post-Shelby County Era to the Present

The ongoing saga of Texas voter ID litigation shows the differences in ability to protect minority

voting rights before and after the Shelby County decision. Prior to Shelby County, it was possible

to stop a discriminatory change in voting procedures before it could deny or abridge access for

voters of color. Under the pre-Shelby County legal regime, Texas’ strict voter ID law (SB 14) was

 

398 See Discussion and Sources cited at notes 835-43, infra. 399 Travis Fain, Amendment Would Put Voter ID in NC Constitution, WRAL (June 7, 2018), 

https://www.wral.com/amendment-would-put-voter-id-in-nc-constitution/17611888/. 400 Id. 401 Id. 402 McCrory, 831 F.3d at 230. 403 Ari Berman, North Carolina Republicans Want a Constitutional Amendment to Require ID to Vote: The Voter ID 

Law Was Struck Down in Court, So Now the GOP Is Putting It On the November Ballot, MOTHER JONES (June 7, 

2018), https://www.motherjones.com/politics/2018/06/north-carolina-republicans-want-a-constitutional-amendmentto-require-id-to-vote/. 404 See, e.g., Chapter 4, Table 12 (Chart of Successful Post-Shelby County Section 2 Cases), infra, note 1322

(showing that five of the 21 cases (23.8 percent) of successful Section 2 cases in the post-Shelby County era were in 

Texas).
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 75

enacted in 2011,

405 and blocked by a federal court in 2012 as it failed the preclearance process

under Section 5 of the VRA, due to it being retrogressive.406 Of all types of voter ID laws, Texas’

was the strictest in the country and it disproportionately impacted African-American and Hispanic

voters.

407 The data that Texas was required to submit as part of the preclearance process showed

that over 6 percent of the state’s registered voters did not have identification required by SB 14.408

In addition, the DOJ’s analysis of this data demonstrated that Latino voters in Texas were over 45

percent more likely than others to lack identification required by SB 14.409 That was enough to

show retrogression, so the DOJ did not require further information about the impact on black

voters, nor did it evaluate whether SB 14 was enacted with discriminatory intent. Texas appealed

the DOJ’s decision, and a federal court found that the cost of obtaining the underlying documents

needed to get the ID required to vote in Texas ranged from $22 to $354.410 The court reviewed

more expansive data, and determined the state failed to demonstrate that SB 14 would not have a

disparate and retrogressive impact on African-American and Latino-American voters.411 It held

that:

None of the burdens associated with obtaining an EIC412 [the “free

ID” required to vote] has ever before been imposed on Texas voters. Based on the

 

405 S.B. 14, 82d Leg., Reg. Sess. (Tex. 2011). (In May 2011, Texas’ SB 14 amended the amount and type of 

acceptable documents that voters were required to present in order to cast a ballot); see also Texas v. Holder, 888 F. 

Supp. 2d 113, 115 (D.D.C. 2012), vacated and remanded by Texas v. Holder, 133 S. Ct. 2886 (2013) (describing 

that prior to SB 14, registrants could vote by presenting a voter registration certificate or sign an affidavit along with 

presenting one of various forms of identification, including state-issued photo IDs as well as a utility bill, expired 

driver’s license, “official mail addressed to the person . . . from a governmental entity,” any “form of identification 

containing the person’s photograph that establishes the person’s identity,” or “any other form of identification 

prescribed by the secretary of state.” Under SB 14, these types of identification were no longer permissible.). 406 Texas, 888 F. Supp. 2d at 144-45 (holding that SB 14 was retrogressive and violated Section 5), vacated and 

remanded on June 27, 2013, based on Shelby Cty., 570 U.S. 529 (2013), after which the state put SB 14 immediately 

back into effect. 

407 Veasey v. Perry, 71 F. Supp. 3d 627, 642, 659 (S.D. Tex. 2014), affirmed in part, reversed in part, and vacated in 

part by Veasey, 830 F.3d 216 (5th Cir. 2016). 408 Thomas Pérez, Asst. U.S. Attorney General, U.S. Dep’t of Justice, Voting Determination Letter by at the 

Department of Justice to Keith Ingram, Director of Elections in Texas, https://www.justice.gov/crt/votingdetermination-letter-34 (last accessed July 26, 2018); see also TEX. ELEC. CODE ANN. § 65.0541, 

https://capitol.texas.gov/tlodocs/82R/billtext/html/SB00014F.HTMl (Voters were required to present either a 

driver’s license, personal identification card that is no more than 60 days expired, U.S. military ID card that is no 

more than 60 days expired, U.S. citizenship certificate with a photo, U.S. passport that is no more than 60 days 

expired, or a license to carry a concealed handgun. Voters who did not present identification required by SB 14 at 

the polling location were permitted to vote provisionally, but in order for the ballot to count the voter had to present 

the required identification within six days.). 409 Id. 410 Texas, 888 F. Supp. 2d at 116. 411 Id. at 142. 412 TEX. TRANSP. CODE ANN. § 521A.001(e) (If registrants were unable to obtain an ID to satisfy SB 14, the State 

offers an Election Identification Certificate (EIC) free of charge); see also Texas, 888 F. Supp. 2d at 117. However, 

SB 14 required EIC applicants to show Department of Public Safety officials at least one of the following forms of 

identification: an expired Texas driver’s license or personal ID card, an original or certified copy of a birth 

certificate, U.S. citizenship or naturalization papers, or a court order indicating a change of name and/or gender.
76 An Assessment of Minority Voting Rights Access

record evidence before us, it is virtually certain that these burdens will

disproportionately affect racial minorities. Simply put, many Hispanics and African

Americans who voted in the last election will, because of the burdens imposed by

SB 14, likely be unable to vote in the next election. This is retrogression.

413

The court ruled that the photo ID law imposed “strict, unforgiving burdens on the poor, and racial

minorities in Texas,” who disproportionately live in poverty.414 Because the voting change failed

preclearance under Section 5, Texas voters were not obliged to comply with SB 14’s strict photo

ID rules in 2012 and early 2013 elections.

415

After Shelby County, the same discriminatory measure was implemented during elections and

could only be stopped after several years of litigation. Two hours after Shelby County, the Texas

Attorney General tweeted that the state’s strict voter ID law would be re-enacted.416 The following

day, plaintiffsfiled a lawsuit alleging that the bill was adopted with unconstitutional discriminatory

intent, and that it also violated Section 2 through its discriminatory effect on black and Latino

voters.417 Similar to the prior ruling, a federal court found that SB 14 had a discriminatory effect

because it burdened Texans living in poverty, a disproportionate number of whom are African

American and Latino,

418 but this time the court also found that SB 14 constituted an

unconstitutional poll tax.419 It issued a preliminary injunction to block its implementation, which

was affirmed by the court of appeals, but in October 2014, the Supreme Court overturned it,

leaving the strict voter ID law in place in Texas during the November 2014 election.420

After a trial on the merits, SB 14 was also held to have been enacted with racially discriminatory

intent against black and Latino voters in Texas. And in determining on the merits whether SB 14

violated Section 2 of the VRA, the federal court followed the requirements of the leading Supreme

Court case, Thornburg v. Gingles, under which it analyzed the state’s history of discrimination in

voting and its ongoing effects.421 This was part of a “totality of circumstances” analysis422 that was

not necessary under Section 5.423 After relevant testimony, the court found that since 1970, “[i]n

every redistricting cycle since 1970, Texas has been found to have violated the VRA with racially

 

413 Texas, 888 F. Supp. 2d at 141 (emphasis added) (citing Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 324 

(2000)). 414 Id. at 144. 415 Patin, The Voting Rights Act at 50, supra note 206, at 8. 416 Reilly, Harsh Texas Voter ID Law, supra note 206; see also Patin, The Voting Rights Act at 50, supra note 206. 417 Mary Kate Sexton, Identity Crisis: Veasey v. Abbott and the Unconstitutionality of Texas Voter ID Law SB14, 37 

B.C.J.L. & SOC. JUST. E. SUPP. 75, 79 (2016), http://lawdigitalcommons.bc.edu/jlsj/vol37/iss3/7. 418 Id. at 80. 419 Veasey, 71 F. Supp. 3d at 633, affirmed in part, reversed in part, and vacated in part by Veasey, 830 F.3d 216. 420 Id. at 707 (where SB 14 was preliminarily enjoined on the basis of likelihood of success on the merits for 

intentional discrimination and with regard to Section 2’s prohibition of discriminatory effects, but this was stayed 

upon appeal, Veasey, 769 F.3d at 896, and the motion to vacate the stay was denied, Veasey, 135 S. Ct. 9). 421 Veasey, 71 F. Supp. 3d at 633-37 (discussing expert testimony regarding Texas’ all-white primaries, literacy 

tests, poll taxes, voter purging, and redistricting). 422 52 U.S.C. § 10301(b). 423 52 U.S.C. § 10304(a).
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 77

gerrymandered districts.”424 The court also found that in Texas, even intimidation at the polls was

ongoing and continued to impact minority voters.425 After testimony from numerous expert and

lay witnesses, the trial court made its decision on the merits, and found that:

[T]he record as a whole (including the relative scarcity of incidences of in-person

voter impersonation fraud, the fact that SB 14 addresses no other type of voter

fraud, the anti-immigration and anti-Hispanic sentiment permeating the 2011

legislative session, and the legislators’ knowledge that SB 14 would clearly impact

minorities disproportionately and likely disenfranchise them) shows that SB 14 was

racially motivated.426

However, without preclearance and with the time and complexity of Section 2 litigation,

implementation of SB 14 was not blocked until 2016.427 The Fifth Circuit Court of Appeals also

held that despite its finding of discriminatory intent, the State of Texas would not be subject to the

alternative remedy of judicial preclearance under Section 3 of the VRA.428 Also, a subsequent,

July 2016 en banc decision of the entire Fifth Circuit affirmed the discriminatory results ruling

regarding SB 14 but remanded the discriminatory intent ruling for further consideration by the

lower court,429 while also ordering the federal district court to fashion an appropriate interim

remedy before the November 2016 election.430 It stated that:

[A]ny new law would present a new circumstance not addressed here. Such a new

law may cure the deficiencies addressed in this opinion. Neither our ruling here nor

any ruling of the district court on remand should prevent the Legislature from acting

 

424 Veasey, 71 F. Supp. 3d at 636 (internal citations omitted). 425 The court found that: 

Minorities continue to have to overcome fear and intimidation when they vote. Reverend Johnson testified that 

there are still Anglos at the polls who demand that minority voters identify themselves, telling them that if they 

have ever gone to jail, they will go to prison if they vote. Additionally, there are poll watchers who dress in law

enforcement-style clothing for an intimidating effect. State Representative Ana Hernandez-Luna testified that a 

city in her district, Pasadena, recently made two city council seats into at-large seats in order to dilute the 

Hispanic vote and representation. Id. at 636-37 (internal citations omitted).

426 Id. at 659 (internal citations omitted). 427 Veasey v. Abbott, 796 F.3d 487 (5th Cir. 2016) (holding that SB 14 was intentionally racially discriminatory, and 

sending the case back to the district court to determine the proper remedies), affirmed in part, reversed in part, and 

vacated in part by Veasey, 830 F.3d 216 (5th Cir. 2016) (en banc); in Aug. 2016 the parties then agreed to an interim 

remedy for the 2016 election, which the court accepted, and in May 2017, Texas amended SB 14 and introduced SB 

5, which “essentially mirror[ed]” that interim remedy and provided for new exceptions to the strict voter ID bill, 

including a “reasonable impediment procedure” and an expansion of the list of acceptable identifications (Veasey v. 

Abbott, 888 F.3d 792, 804 (5th Cir. 2018)). 428 Veasey v. Abbott, 888 F.3d 792, 804 (5th Cir. 2018). 429 Veasey, 830 F.3d at 265. En banc is way to ask for reconsideration of a ruling by only several judges. See En 

banc, Law.com, https://dictionary.law.com/Default.aspx?selected=625 (last accessed June 14, 2018) (en banc is 

way to ask for reconsideration of a ruling by only several judges).

430 Veasey, 830 F.3d at 271.
78 An Assessment of Minority Voting Rights Access

to ameliorate the issues raised in this opinion. Any concerns about a new bill would

be the subject of a new appeal for another day.431

After this order, the two parties agreed to an amended version of Texas’ strict photo ID law that

provided exceptions for voters with “reasonable impediments” to getting current, state-issued

photo ID, which was accepted by the court.432 Implementation of the strict photo ID law (SB 14)

was then finally blocked in 2016.

433

Under the new Administration, in February 2017, DOJ withdrew its discriminatory intent claim,

based in part on the parties’ agreement to an interim remedy providing for “reasonable

impediment” exceptions to the strict voter ID rules, and Texas’ plan to enact substantively the

same provisions that the parties had agreed to.

434 In May 2017, Texas enacted an amended voter

ID law (SB 5) with these exceptions to the strict photo ID rules.

435

In August 2017, the federal district court ruled that SB 5 does not ameliorate the discriminatory

aspects of SB 14 but rather “perpetuates” them, and permanently prohibited Texas from enforcing

 

431 Id. (emphasis added). 432 Veasey v. Abbott, 265 F. Supp. 3d 684, 687 (S.D. Tex. 2017). 433 Veasey, 796 F.3d at 493 (holding that SB 14 was intentionally racially discriminatory, and sending the case back 

down to the district court to determine the proper remedies), affirmed in part, reversed in part, and vacated in part 

by Veasey, 830 F.3d 216; in Aug. 2016 parties then agreed to an interim remedy for the 2016 election, which the 

court accepted, and in May 2017, Texas amended SB 14 and introduced SB 5, which “essentially mirror[ed]” that 

interim remedy and provided for new exceptions to the strict voter ID bill, including a “reasonable impediment 

procedure” and an expansion of the list of acceptable identifications. Veasey, 888 F.3d 792, 804. 434 See United States’s Motion for Voluntary Dismissal of Discriminatory Purpose Claim without Prejudice, Veasey 

v. Abbott, 2017 WL 3670954 (S.D. Tex. 2017). Despite granting the DOJ’s Motion for Voluntary Dismissal because 

it was unopposed, the district court noted that: 

It is well-settled that new legislation does not ipso facto eliminate the discriminatory intent behind 

older legislation and moot a dispute regarding the violation of law. Hunter v. Underwood, 471 U.S. 

222, 232-33, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (events over 80 years to change the terms of the 

law do not eliminate its original discriminatory intent); Miss. State Chapter, Operation Push, Inc. v. 

Mabus, 932 F.2d 400, 408-09 (5th Cir. 1991) (each bill must be evaluated on its own terms for 

discriminatory purpose); N.C. State Conference of NAACP v. McCrory, 831 F.3d 204, 240 (4th Cir. 

2016) (reasonable impediment amendment does not eliminate all lingering effects of law that was 

discriminatory when passed); Perez v. Texas, 970 F.Supp.2d 593, 603 (W.D. Tex. 2013) (claims of 

intentional discrimination in connection with legislation are not mooted by subsequent legislation so 

long as requested relief is available for purposeful discrimination); Perez v. Abbott, 253 F.Supp.3d 

864, 872 (W.D. Tex.) (finding intentional discrimination claims not moot so long as relief was 

available to remedy the associated harm, even if remedy for discriminatory effects claim was mooted 

by later legislation). 

Veasey v. Abbott, 248 F. Supp. 3d 833, 835 (S.D. Tex. 2017). 

435 This “reasonable impediment” exception is available if a voter could not reasonably obtain the necessary ID due 

to one of seven given reasons: (1) lack of transportation, (2) lack of birth certificate or other documents needed to 

obtain acceptable form of photo ID, (3) work schedule, (4) lost or stolen identification, (5) disability or illness, (6) 

family responsibilities, or (7) acceptable form of photo ID applied for but not received. See Texas Senate Bill 5,

supra note 321.
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 79

both SB 14 and SB 5.436 The district court therefore found that SB 5 violated Section 2 of the VRA

as well as the U.S. Constitution, and permanently enjoined its enforcement.

437 But the federal

district court’s ruling was overturned by a 2-1 vote of the Fifth Circuit in April 2018,

438 reversing

the ruling that SB 5 was tainted with intentional discrimination.

439 As of June 25, 2018, five years

after the Shelby County decision, SB 5 is still subject to potential litigation regarding whether it

should be invalidated as the fruit of intentional discrimination, or permitted unless ongoing

discriminatory effect can be proven.

440 As of this writing, SB 5 was in effect during the March

2018 federal primary,441 and will continue to be in effect in the 2018 federal elections in Texas.442

Absent Section 5, it has taken several elections and years of litigation, which likely is not over as

of the writing of this report, to determine which aspects of Texas’ post-Shelby County voter ID

law discriminated against minority voters.

Relevant Testimony and Ongoing Voting Rights Issues in Texas

During the February 2 national briefing, the Commission heard extensive testimony from various

experts about the voter ID litigation in Texas. NAACP Legal Defense Fund (LDF) President and

 

436 Veasey, 265 F. Supp. 3d at 697-98, affirmed in part, reversed in part, and vacated in part by Veasey, 888 F.3d at 

796. The district court also left open the possibility of imposing the additional VRA remedy of Section 3(c) 

preclearance. Id. at 700. 437 Id. at 688-89. See also Derrick Robinson, Victory for Voters: Judge Rules New Texas Voter ID Law is Still

Discriminatory and Doesn’t Fix Damage Caused by 2011 Law, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 

LAW (Aug. 23, 2017), https://lawyerscommittee.org/2017/08/victory-voters-judge-rules-new-texas-voter-id-lawstill-discriminatory-doesnt-fix-damage-caused-2011-law/. 438 Veasey, 888 F.3d at 796 (“Nothing we conclude today disposes of any potential challenges to SB 5 in the 

future. Plaintiffs may file a new lawsuit, and bear the burden of proof, if the promise of the law to remedy disparate 

impact on indigent minority voters is not fulfilled. They did not challenge SB 14, for instance, for several years after 

its effective date. As a remedy for the deficiencies found by this court in Veasey II, however, there is no evidentiary 

or legal basis for rejecting SB 5, and the district court was bound not to take the drastic step of enjoining it. Further, 

because SB 5 constitutes an effective remedy for the only deficiencies testified to in SB 14, and it essentially mirrors 

an agreed interim order for the same purpose, the State has acted promptly following this court's mandate, and there 

is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c).”) (internal 

citations omitted). 

439 The Fifth Circuit remanded the case to the district court, which issued its judgment in accordance. Veasey v. 

Abbott, No. 2:13-CV-193 (S.D. Tex., June 19, 2018). 440 See, e.g., Manny Fernandez, Texas’ Voter ID Law Does Not Discriminate and Can Stand, Appeals Court Rules, 

N.Y. TIMES (April 27, 2018), https://www.nytimes.com/2018/04/27/us/texas-voter-id.html (also noting that an 

appeal from the 3-judge court’s ruling that SB 5 was not prohibited as the fruit of intentional discrimination by the 

Plaintiffs to the full Fifth Circuit or the Supreme Court “seems likely”); see also Veasey, 888 F.3d at 804-05 (Justice 

Jones’ discussion of potential new case in which disparate impact evidence may be developed (for a Section 2 claim 

based in discriminatory results)). The staff-generated portion of this report was adopted by the Commission on June 

25, 2018. Subsequent developments are therefore not reported here. 

441 See, e.g., Alexa Ura, What to Expect in Texas’ Voting Rights Court Fights in 2018, TEX. TRIB. (Jan. 3, 2018),

https://www.texastribune.org/2018/01/03/what-expect-texas-voting-rights-court-fights-2018/; see also Texas Sec’y 

of State, Important Election Dates, SOS.STATE.TX, https://www.sos.state.tx.us/elections/voter/2018-importantelection-dates.shtml (last accessed July 26, 2018). 442 See, e.g., Texas Sec’y of State, What Kind of Identification is Required to Vote in Person?, VOTETEXAS.GOV, 

www.votetexas.gov/faq (last accessed June 24, 2018). 
80 An Assessment of Minority Voting Rights Access

Director Counsel Sherrilyn Ifill testified that while the Texas voter ID litigation has been pending,

Texas elected a U.S. Senator in 2014, all 36 members of the Texas delegation to the U.S. House

of Representatives, Governor, Lieutenant Governor, Attorney General, Controller, various

statewide Commissioners, four Justices of the Texas Supreme Court, candidates for special

election in the state Senate, state boards of education, 16 state senators, all 150 members of the

state House, over 175 district judges, and over 75 district attorneys.443 In the meantime, Texas’

strict voter ID law (SB 14) was found to be discriminatory in both intent and effect, in violation of

the U.S. Constitution and Section 2 of the VRA. SB 14 had been blocked by preclearance, and but

for the Shelby County decision, it would not have been implemented.444

In reflecting on the process of Section 2 litigation in Texas following the Shelby County decision,

former DOJ Voting Section Historian Peyton McCrary remarked that it is “slow, time-intensive,

[and] it ties up precious resources” and can take years to work its way through the courts.445 ACLU

Voting Rights Project Director Dale Ho stated that Section 2 litigation is like “a ray of light,” but

he believes that litigation is inherently not fast enough to keep up with the discriminatory voting

provisions enacted in Texas and around the country.446 Ho noted that it will be difficult to not only

prosecute Section 2 cases in a timely matter, but also to have the resources to bring such complex

litigation in the first place. He added that the ACLU alone has brought more Section 2 cases than

the DOJ, and the current administration is shifting gears away from a focus on voting rights.447

Justin Levitt, former Deputy Assistant Attorney General for Civil Rights in the DOJ, stated in his

written testimony that “the Federal Judicial Center determined that of 63 different forms of

litigation, voting rights cases are the sixth most cumbersome for the courts: more cumbersome

than an antitrust case, and nearly twice as cumbersome as a murder trial.”448

Levitt also offered his views that since the Supreme Court’s 2006 ruling about Texas in LULAC v.

Perry, recognizing indicia of ongoing intentional discrimination in voting,449 “[w]hen it comes to

racial misconduct, Texas has unfortunately proven themselves to be an unrepentant recidivist....

 

443 Briefing Transcript, supra note 234, at 90 (statement by Sherrilyn Ifill). 444 52 U.S.C. § 10304(a) (requirement that any alterations in voting procedures be approved through preclearance by 

the Attorney General or a federal court, before they may be implemented). 445 Dr. Peyton McCrary, George Wash. U. L. Sch., Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 

2018 at 12 [hereinafter McCrary, Written Testimony]. 446 Dale Ho, Director, Voting Rights Project, American Civil Liberties Union, Written Testimony for the U.S. 

Comm’n on Civil Rights, Feb. 2, 2018 at 12 [hereinafter Ho, Written Testimony]; see also Briefing Transcript,

supra note 234 at 96-97 (statement by Sherrilyn Ifill) (Ifill also notes that the recent voting litigation in Texas has 

established that Section 2 litigation takes too long and in the meantime, harm is being done to minority 

communities). 

447 Id. 448 Levitt, Written Testimony, supra note 304, at 8 (citing Federal Judicial Center, 2003-2004 District Court CaseWeighting Study: Final Report to the Subcommittee on Judicial Statistics of the Committee on Judicial Resources of 

the Judicial Conference of the United States (2005), https://www.fjc.gov/sites/default/files/2012/CaseWts0.pdf). 449 League of United Latin Am. Citizens, 548 U.S. at 440-41. 
Chapter 2: The Supreme Court’s Shelby County v. Holder Decision 81

the same legislature passed a restrictive ID law also found to be intentionally discriminatory.”450

He also believes that if preclearance still existed it would have blocked Texas’ voter ID law.451

Mexican American Legal Defense and Educational Fund (MALDEF) Litigation Director Nina

Perales testified about repeated, successful lawsuits against voting rights violations in Texas,

particularly regarding discriminatory redistricting.452 Perales pointed out that while the Latino

population and Latino political participation have grown in Texas, the state has been intransigent

and continued to enact redistricting plans every decade that are found to be discriminatory.453 Jerry

Vattamala, Director of the Democracy Program at the Asian American Legal Defense and

Education Fund (AALDEF), also testified about recent violations of Section 208 of the VRA,

limiting the rights of Asian voters to receive required language assistance in Texas until litigation

forced the state to change its law.

454

Several voting rights experts commented on DOJ’s switching positions in the Texas voter ID

litigation, with remarks of disappointment and serious qualms about the future of the Justice

Department’s voting rights enforcement efforts. Vanita Gupta, the former head of the Civil Rights

Division and current President and CEO of the Leadership Conference on Civil and Human Rights,

stated that it was “really troubling” that this decision reversed a position that DOJ lawyers had

been pursuing for years.455 In her written testimony to the Commission, she characterized the

DOJ’s change of position as “embracing a vote suppression agenda,”456 with “wholesale

programmatic shifts”457 evidenced in DOJ actions in the North Carolina, Ohio, and Texas cases.458

Justin Levitt, Ezra Rosenberg, Dale Ho, Peyton McCrary, Sherrilyn Ifill, Gerry Hebert, Lorraine

Minnite, and Nina Perales—who all provided expert testimony at the Commission’s briefing—

also critiqued the DOJ switching positions in the Texas voter ID.459

 

450 Briefing Transcript, supra note 234, at 36 (statement by Justin Levitt). 451 Id. at 15. 452 Briefing Transcript, supra note 234, at 92-93 (statement by Nina Perales, Vice Pres. of Litigation, Mexican 

American Legal Defense and Educational Fund (MALDEF)). 453 Nina Perales, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 at 2-3 [hereinafter Perales, 

Written Testimony]; see also League of United Latin Am. Citizens, 548 U.S. 399; see also Perez v. Abbott, 253 F.

Supp. 3d 864 (W.D. Tex. 2017) (Congressional maps); see also Perez v. Abbott, 274 F. Supp. 3d 624 (W.D. Tex. 

2017) (state legislative maps); see also Benavidez v. Irving Indep. Sch. Dist., 2014 WL 4055366 (N.D. Tex. 2014); 

see also Beaumont Indep. Sch. Dist. v. United States, 944 F. Supp. 2d 23 (D.D.C. 2013); see also Patino, 230 F.

Supp. 3d 667 (granting 3(c) remedy). 454 Briefing Transcript, supra note 234, at 181-82 (statement by Jerry Vattamala, Director of Testimony, Asian 

American Legal Defense and Education Fund (AALDEF)); see also Jerry Vattamala, Written Statement for the U.S. 

Comm’n on Civil Rights, Feb. 2, 2018, at 9 [hereinafter Vattamala, Written Testimony] (discussing the case of 

Organization of Chinese Americans v. Texas brought to enforce Section 208 of the VRA). 455 Id. 456 Vanita Gupta, Pres. and CEO, Leadership Conference on Civil and Human Rights, Written Testimony for the 

U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 3 [hereinafter Gupta, Written Testimony]. 457 Id. at 6. 458 Id. at 3-6. 459 Briefing Transcript, supra note 234, at 26, 78, 109, 212 and 219.
82 An Assessment of Minority Voting Rights Access

On March 18, 2018, in a briefing held by the Texas SAC to the Commission, Assistant Professor

of Law at the University of Houston Teddy Rave declared the importance of running election

decisions through preclearance as an “additional institution” would not have partisan interests.460

He noted that when preclearance was established by the DOJ, it served as an “external check” on

partisan decisions and helped ensure that legislation was not enacted if it was created with the goal

of assuming a partisan advantage. Rave noted that the DOJ is “not beholden to the same interests

as local election officials” which allowed preclearance to succeed, when it was enforced before

Shelby County. At the same briefing, AALDEF’s Jerry Vattamala pointed out the recent lack of

enforcement of voting rights by the DOJ, and stressed the utmost importance of the Department’s

role in monitoring elections.461

Not Just a North Carolina and Texas Problem

At least 23 states have enacted newly restrictive statewide voter laws since the Shelby County

decision.462 The findings of federal courts show that North Carolina’s HB 589, Texas’ SB 14, and

similar electoral changes have violated Section 2 of the VRA and negatively impact minority

voters.463

In the following chapter, the Commission reviews the main types of changes in voting procedures

that impact minority voters and are relevant to federal VRA enforcement, from the 2006 VRA

Reauthorization to the present.

 

460 Teddy Rave, Assist Prof. of Law, Univ. of Houston, Tex. Advisory Committee to the U.S. Comm’n on Civil 

Rights, Mar. 13, 2018 at 22-30 [hereinafter Houston Meeting]. 461 Jerry Vattamala, Houston Meeting, at 97. 462 Barber, Written Testimony, supra note 392, at 1. According to the Brennan Center, since 2010, 23 have passed 

new restrictions on voting. In addition, 13 have more restrictive voter ID laws, 11 introduced stricter rules for voter 

registration, 6 cut back on early voting days and hours, and 3 made it harder for persons with past felony convictions 

to vote. See also The Brennan Cent. for Justice, New Voting Restrictions in America, THE BRENNAN CENT. FOR 

JUSTICE, https://www.brennancenter.org/new-voting-restrictions-america (last accessed July 26, 2018) [hereinafter 

Brennan, New Voting Restrictions in America]. 463 See Chapter 4, Table 12 at note 1322, infra (listing and citing 23 successful Section 2 cases in the post-Shelby 

County era).
Chapter 3: Recent Changes in Voting Laws and Procedures 83

CHAPTER 3: RECENT CHANGES IN VOTING LAWS AND 

PROCEDURES THAT IMPACT MINORITY VOTERS

This chapter examines some of the main changes in voting laws and procedures from the time of

the 2006 Reauthorization of the Voting Rights Act (VRA) until the present, providing an analysis

of the impact of these measures on minority voters. When relevant, this chapter discusses litigation

and other actions brought to address VRA issues, and the results of those methods. The analysis

herein focuses at the state and local level, and includes information about relevant proceedings of

the Commission’s SACs.

Chapter 3 begins by examining voter ID laws and their impact on minority voters. It then

documents and evaluates various arguments about voter fraud that have been used to justify voter

ID laws and other measures discussed in this chapter. This chapter then examines the impact on

minority voters of recent state rules requiring documentary proof of citizenship for voter

registration, challenges of voters on the rolls, and removal or purges of voters from the voter

registration list. The impact of recent cuts to early voting are also documented. Finally, this chapter

discusses various polling place and accessibility issues, including moving or closing polling

places, language access issues, and accessibility for voters with disabilities. Appendix E

summarizes the overall results in a table showing where potentially discriminatory issues have

occurred acrossthe nation, in a state-by-state chart. Research shows that in the 15 formerly covered

states, there were an average of at least two potentially discriminatory voting changes per state

during the time period studied in this report. In comparison, there was an average of less than one

potentially discriminatory voting change per state in the 35 states that were not formerly covered.

In total, 55.4 percent of the potentially discriminatory voting changes occurred in the 15 formerly

covered states, while 44.6 percent occurred in other states.

Voter Identification Laws 

Voter identification (ID) laws that require eligible voters to present identification when casting a

ballot are a highly debated and contested issue in state legislatures and courtrooms throughout the

United States. This section illustrates the various types of voter ID laws and which states have

enacted them. It briefly discusses relevant federal legal background, then summarizes the status of

voter ID laws in the states (from 2006 to the present). The Commission then examines further

detail about whether and how voter ID laws have a discriminatory impact on minority voters. As

will be discussed below, federal court decisions as well as current, available data show that

different types of voter ID laws enacted by different states have different levels of discriminatory

impact, ranging from those that federal courts have found to be racially discriminatory and in

violation of the VRA, to those that may have negligible impact.
84 An Assessment of Minority Voting Rights Access

Data regarding the various types of voter ID laws are found in the following graph and map:

Figure 4: Type of Voter Identification Law in U.S. States, 2000-2016

Source: National Conference of State Legislatures464

 

464 Nat’l. Conf. of State Legislators (NCSL), History of Voter ID, http://www.ncsl.org/research/elections-andcampaigns/voter-id-history.aspx (last accessed July 26, 2018) [hereinafter NCSL, History of Voter ID]. NCSL 

documented that these states adopted four types of voter ID laws. These are: strict photo ID laws (governmentissued photo IDs are required to vote), non-strict photo ID laws (photo IDs are not required, but requested before 

voting), strict non-photo ID laws (non-photo IDs are required to vote), and non-strict non-photo ID laws (non-photo

IDs are requested before voting). NCSL adds that strict voter ID laws are also characterized by the inability of 

voters without ID to have even provisional ballots counted, unless the person presents appropriate ID within several 

days after Election Day. Id.
Chapter 3: Recent Changes in Voting Laws and Procedures 85

Figure 5: Voter Identification Laws in Effect in 2018

Source: National Conference of State Legislatures465

Legal Background

Voter ID laws were not prominent until the late 20th century.466 Prior to the 1965 VRA, poll

workers sometimes required other voters or poll workers to “vouch” for the voter’s identity or

qualifications.467 This practice was used in such a racially discriminatory manner in some

jurisdictions, particularly in the South, that the 1965 VRA legislated a permanent, nationwide ban

 

465 Wendy Underhill, Voter Identification Requirements, NCSL (May 15, 2018), 

http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx [hereinafter Underhill, Voter ID 

Requirements]. 466 NCSL, History of Voter ID, supra note 464. 467 Voting Rights Act of 1965, Pub. L. 89-110, § 4(c) (codified as amended at 52 U.S.C. § 10303(c)), 

http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf (prohibited tests and devices as 

prerequisites to voting or registration included any requirement that a person “prove his qualification by the voucher 

of registered voters or members of any other class.”); see also NAACP LDF, Jim Crow Era Voucher Laws “Have 

No Place in Modern Day Alabama,” NAACP LDF (May 29, 2014), http://www.naacpldf.org/press-release/naacplegal-defense-fund-calls-state-alabama-stop-using-discriminatory-voucher-test; see also U.S. COMM’N ON CIVIL 

RIGHTS VOTING 1961, supra note 62, at 26, 50, 53 (displaying evidence of this practice of requiring someone to 

vouch for a potential voter’s identity or qualifications).
86 An Assessment of Minority Voting Rights Access

on vouchers.468 Between this time and 2008, states verified the identity of voters through a variety

of other formal and informal methods. In 2008, the Supreme Court summarized these methods:

States employ different methods of identifying eligible voters at the polls. Some merely

check off the names of registered voters who identify themselves; others require voters to

present registration cards or other documentation before they can vote; some require voters

to sign their names so their signatures can be compared with those on file; and in recent

years an increasing number of states have relied primarily on photo identification.469

In addition, state and federal law include criminal penalties for impersonating another voter.470

The VRA itself provides criminal penalties, including fines of $10,000 and 5 years’ imprisonment,

for voting twice.471

The first law requiring voters to show identification at the polls was passed in South Carolina in

1950, followed by four other states—Hawaii (1970), Texas (1971), Florida (1977), and Alaska

(1980)—that all passed laws.472 Throughout the next several decades, several more states began

considering voter ID laws and by the 2000 election, 14 states passed voter ID laws.473 Since the

2000 Presidential Election, the number of state voter ID laws has been on the rise.474 After the

recount in Florida that changed the initial results of the 2000 election, Congress enacted the Help

America Vote Act (HAVA).475 In addition to other reforms, HAVA included a new federal law

requirement that every person who registers to vote must either present identification at that time,

or at the polls, if the person is a first-time registrant in that jurisdiction.476 The types of ID that

HAVA considers acceptable are: a current driver’s license or state ID card, or a “current utility

bill, bank statement, government check, paycheck, or other government document that shows the

name and address of the voter.”477 HAVA also includes a provision for “fail-safe voting” if the

 

468 Id.; see also Voting Rights Act of 1965, Pub. L. 89-110, § 4(c) (codified as amended at 52 U.S.C. § 10303(c)). 469 Crawford v. Marion Cty., 553 U.S. 181, 197 (2008). 470 U.S. Dep’t of Justice, Federal Prosecution of Election Offenses, DEPT. OF JUSTICE 26 (7th Edition, May 2007) 

https://www.justice.gov/sites/default/files/criminal/legacy/2013/09/30/electbook-rvs0807.pdf (According to the 

Justice Department, this can occur when “Voting in federal elections for individuals who do not personally 

participate in, and assent to, the voting act attributed to them, or impersonating voters or casting ballots in the names 

of voters who do not vote in federal elections (42 U.S.C. §§ 1973i(c), 1973i(e), 1973gg-10(2).”). See also Thomas J. 

Baldino & Kyle L. Kreider, Of the People, by the People, For the People: A Documentary Record of Voting Rights 

and Electoral Reform 631 (2010) (Santa Barbara, Calif.: Greenwood); The Heritage Foundation, Voter Fraud Cases,

THE HERITAGE FOUNDATION, https://www.heritage.org/voterfraud (last accessed Aug. 2, 2018) [hereinafter

Heritage, Voter Fraud Cases] (noting their database of 1,132 “proven instances of voter fraud” from 1979 to 2018). 471 52 U.S.C. § 10307(e). 472 NCSL, History of Voter ID, supra note 464. 473 Id. 474 Id. 475 Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666 (codified as amended in scattered sections 

of 32 U.S.C., 56 U.S.C.), https://www.eac.gov/assets/1/6/HAVA41.PDF; see also 2000 and 2001 USCCR voting 

investigations discussed in Appendix A. 476 52 U.S.C. § 21083(b) (also stating that the State shall implement these requirements “in a uniform and 

nondiscriminatory manner”).

477 52 U.S.C. § 21083(b)(2)(A)(i)(II).
Chapter 3: Recent Changes in Voting Laws and Procedures 87

voter does not bring ID to the polls, by providing for provisional ballots, which are special ballots

election administrators must offer to voters who believe they are eligible but are rejected at the

polls due to state or local rules, after which administrators must notify voters as to whether their

vote was counted.478 HAVA, however, does not require states to count provisional ballots. 479

Using the definitions of the National Conference of State Legislatures, HAVA therefore includes

a “non-strict voter ID rule.”480 However, HAVA also permits states to adapt their own, more

restrictive or strict voter ID rules.481

 

478 52 U.S.C. § 21083(b)(2)(B). 479 52 U.S.C. §§ 21082(a), 21085 (leaving method of implementation to the states). See, e.g., Nat’l. Conf. of State 

Legislators, Provisional Ballots: What are the Reasons for Rejecting/Accepting a Provisional Ballot?, NCSL (June 

19, 2015) http://www.ncsl.org/research/elections-and-campaigns/provisional-ballots.aspx#Accept/Reject (discussing 

widely varying state laws on whether provisional ballots are counted). 480 NCSL, History of Voter ID, supra note 464; 52 U.S.C. § 21083(a)(5)(i) (stating HAVA’s ID requirements as a 

minimum. “Except as provided in clause (ii), notwithstanding any other provision of law, an application for voter 

registration for an election for Federal office may not be accepted or processed by a State unless the application 

includes [a drivers’ license or the last 4 digits of the applicant’s social security number, which will then be verified 

through presentation of ID when they vote].”) The voter registration verification requirements under 52 U.S.C. 

§21083(b) of the statute include the following:

(5) VERIFICATION OF VOTER REGISTRATION INFORMATION

(A) Requiring provision of certain information by applicants

(i) In general Except as provided in clause (ii), notwithstanding any other provision 

of law, an application for voter registration for an election for Federal office 

may not be accepted or processed by a State unless the application includes—

(I) in the case of an applicant who has been issued a current and valid driver’s license, the 

applicant’s driver’s license number; or

(II) in the case of any other applicant (other than an applicant to whom clause (ii) applies), the last 

4 digits of the applicant’s social security number.

(ii) Special rule for applicants without driver’s license or social security number:

 If an applicant for voter registration for an election for Federal office has not been issued a 

current and valid driver’s license or a social security number, the State shall assign the applicant a 

number which will serve to identify the applicant for voter registration purposes. To the extent 

that the State has a computerized list in effect under this subsection and the list assigns unique 

identifying numbers to registrants, the number assigned under this clause shall be the unique 

identifying number assigned under the list.

(iii) Determination of validity of numbers provided:

 The State shall determine whether the information provided by an individual is sufficient to meet 

the requirements of this subparagraph, in accordance with State law.

481 52 U.S.C. § 21083(b)(5)(A)(II)(iii); see also 52 U.S.C. §§ 21082(a), 21085 (leaving decision of whether to count 

provisional ballots without ID to the states). 
88 An Assessment of Minority Voting Rights Access

From 2000 to 2016, 34 states adopted various forms of new voter ID laws,

482 which are analyzed

further below.

Post-2006 VRA Reauthorization and Post-Shelby County Voter ID Litigation

Indiana adopted the nation’s first voter ID law that required voters to show an unexpired, stateissued photo ID, with their current name and address, at the polls in order to vote.

483 Indiana’s law

is not an entirely strict photo ID law,

484 because it does not apply at all for absentee voters, persons

voting at licensed care facilities, or voters with religious objections.

485 Additionally, indigent

voters may sign an affidavit permitting them to vote after procuring a free photo ID card at the

state Bureau of Motor Vehicles.486 Indiana’s photo ID law was immediately challenged and the

case rose to the Supreme Court. In 2008, in Crawford v. Marion County Election Board, the Court

held that Indiana’s law requiring photo identification when casting a ballot did not violate the 14th

Amendment of the U.S. Constitution.487

In deciding Crawford, the Court reasoned that in prior constitutional cases, it did not apply “any

‘litmus test’ that would neatly separate valid from invalid restrictions” on the right to vote, and

that “a court must identify and evaluate the interests put forward by the State as justifications for

the burden imposed by its rule, and then make the ‘hard judgment’ that our adversary system

demands.”488 This balancing test, evaluating state interests versus the burden on voters, impacts

how challenges to voter ID laws have been decided since Crawford, even under VRA claims.489

 

482 Underhill, Voter ID Requirements, supra note 465. 483 S. Enrolled Act (SEA) 483, §1, 114th Leg., 1st Sess. (Ind. 2005), 

http://www.in.gov/legislative/bills/2005/SE/SE0483.1.html [hereinafter SEA 483] (requiring that in order to cast a 

ballot, voters must show proof of identification as follows:

“‘Proof of identification’ refers to a document that satisfies all the following:

(1) The document shows the name of the individual to whom the document was issued, and the name conforms to 

the name in the individual's voter registration record.

(2) The document shows a photograph of the individual to whom the document was issued.

(3) The document includes an expiration date, and the document (i) is not expired; or (ii) expired after the date of 

the most recent general election.

(4) The document was issued by the United States or the state of Indiana.”) 

484 Id.; Cf. NCSL, History of Voter ID (with definitions of types of voter ID laws), supra note 464. 485 SEA 483, supra note 483. 486 Id. 487 Crawford, 553 U.S. at 202-04. 488 Id. at 189-90 (citing Anderson v. Celebrezze, 460 U.S. 780 (1983)) (plurality opinion of Justices Stevens, 

Roberts, and Kennedy, who were joined by Justices Scalia, Thomas, and Alito in a concurring opinion) and at 200 

(resulting in a 6-3 majority holding that Indiana’s photo ID law was constitutional). 489 See, e.g., Frank v. Walker, 768 F.3d 744, 748 (7th Cir. 2014), cert. denied 135 S. Ct. 1551 (2015); Frank v. 

Walker II, 819 F.3d. 384, 386-87 (7th Cir. 2014); but see McCrory, 831 F.3d at 235 (distinguishing Crawford’s 

balancing test in case of voter ID by stating that “at least in part, race motivated the North Carolina legislature. Thus, 

we do not ask whether the State has an interest in preventing voter fraud—it does—or whether a photo ID 
Chapter 3: Recent Changes in Voting Laws and Procedures 89

In Crawford, the Court agreed that the following three interests put forth by the state were

compelling: modernizing election administration, preventing voter fraud, and “safeguarding voter

confidence.”490 Despite the lack of specific evidence of in-person voter fraud, which the Court

noted is the only type of voter fraud that Indiana’s photo ID law would address, it found that each

of these three state interests were valid.491 Regarding the burden on voters, the Court reasoned that

most people have a government-issued photo ID,492 and furthermore:

[J]ust as other States provide free voter registration cards, the photo identification

cards issued by Indiana’s [Bureau of Motor Vehicles (BMV)] are also free. For

most voters who need them, the inconvenience of making a trip to the BMV,

gathering the required documents, and posing for a photograph surely does not

qualify as a substantial burden on the right to vote, or even represent a significant

increase over the usual burdens of voting.493

 

requirement constitutes one way to serve that interest—it may—but whether the legislature would have enacted SL 

2013-381’s photo ID requirement if it had no disproportionate impact on African American voters”). 490 Crawford, 553 U.S. at 191. 491 Id. Regarding election administration, the Court took into account the legislative language of HAVA, as well as 

the findings of the bipartisan Carter-Baker Commission report issued in 2005 and stating that establishing voter 

identification connecting directly to a voter’s registration would enhance the integrity in elections without adding 

additional costs to participation. See Commission on Federal Election Reform, Building Confidence in the U.S. 

Elections 6 (September 2005); see also NCSL, History of Voter ID, supra note 464. (The Commission was chaired 

by former President Jimmy Carter and former Secretary of State James A. Baker III in order to increase voter 

participation and assure integrity in U.S. elections.) The Court found that this interest was valid. Id. at 193-94. (In 

particular, the Court took into account this finding of the Carter-Baker Commission: “There is no evidence of 

extensive fraud in U.S. elections or of multiple voting, but both occur, and it could affect the outcome of a close 

election. The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to 

confirm the identity of voters. Photo [identification cards] currently are needed to board a plane, enter federal 

buildings, and cash a check. Voting is equally important.”). Regarding voter fraud, the majority in Crawford was 

very clear that: “The only kind of voter fraud that SEA 483 [Indiana’s voter ID law] addresses is in-person voter 

impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at 

any time in its history.” Id. at 194-95. However, the Court held that even so, the state still had a general interest in 

protecting election integrity. Id. And regarding voter confidence, the Crawford opinion noted that, “While that 

interest is closely related to the State’s interest in preventing voter fraud, public confidence in the integrity of the 

electoral process has independent significance, because it encourages citizen participation in the democratic 

process.” Id. at 197. 492 Id. at 198. 493 Id. at 199. In their concurring opinion, Justices Scalia, Thomas, and Alito found the evidence presented by 

opponents of Indiana’s voter ID law even more lacking and wrote that: 

The lead opinion assumes petitioners’ premise that the voter-identification law “may have imposed a 

special burden on” some voters, but holds that petitioners have not assembled evidence to show that 

the special burden is severe enough to warrant strict scrutiny. That is true enough, but for the sake of 

clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grounds 

that petitioners’ premise [of voter ID laws burdening voters] is irrelevant and that the burden at issue 

is minimal and justified. Id. at 204 (emphasis added).
90 An Assessment of Minority Voting Rights Access

In their plurality (or “leading”) opinion, Justices Stevens, Roberts, and Kennedy also took into

account the weak evidentiary record in the case,494 and determined that “Indiana’s voter photo ID

law imposed only a ‘limited burden’ on voting rights that is justified by the state interest in

protecting election integrity.”495 Thus, on the factual record before it, the Court characterized

Indiana’s voter ID law as “neutral” and “nondiscriminatory.”496 Justice Kennedy’s leading opinion

simply held that, “on the basis of the record that has been made in this litigation, we cannot

conclude that the statute imposes ‘excessively burdensome requirements’ on any class of

voters.”497

The type of legal challenge that the Crawford Court reviewed was also important. The majority in

Crawford rejected a facial challenge (i.e., a case to invalidate the entire statute), brought without

any showing of individual harm, but it left open the possibility of challenges to particular

applications of such laws (“as-applied” challenges).498 The leading opinion also cautioned that

voter ID laws might be unconstitutional in certain circumstances, if the laws could be shown to

burden particular voters.499 Yet although the Crawford opinion left open the possibility that voter

ID laws could be challenged by individual as-applied claims, these types of claims can be difficult

to bring for several reasons. First, the individual plaintiffs who would bring these claims are less

likely to have the resources needed to pursue litigation since they are also the people who are

unable to obtain a photo ID.500 Second, it is possible that some plaintiffs who were previously

rejected in their application would be granted an ID after litigation was brought, likely mooting501

 

494 Id. at 200. 495 Eric A. Fisher, R. Sam Garrett, and L. Paige Whitaker, State Voter Identification Requirements: Analysis, Legal 

Issues, and Policy Considerations, 6 CONG. RESEARCH SERV., R42806 (2016), 

https://fas.org/sgp/crs/misc/R42806.pdf. 496 Crawford, 553 U.S. at 203-04. The Court also noted that: 

[I]f a nondiscriminatory law is supported by valid neutral justifications, those justifications should not 

be disregarded simply because partisan interests may have provided one motivation for the votes of 

individual legislators. The state interests identified as justifications for SEA 483 are both neutral and 

sufficiently strong to require us to reject petitioners’ facial attack on the statute. The application of the 

statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the 

integrity and reliability of the electoral process.” Id. at 204. 

497 Id. at 202. 498 Id. 499 Id.; see also Richard Sobel, The High Cost of ‘Free’ Photo Voter Identification Cards, at 4, HARV. L. SCH. INST.

FOR RACE & JUSTICE (June 2014), https://today.law.harvard.edu/wpcontent/uploads/2014/06/FullReportVoterIDJune20141.pdf [hereinafter Sobel, High Cost]. 500 Kathleen M. Stoughton, Note, A New Approach to Voter ID Challenges: Section 2 of the Voting Right Act, 81 

GEO. WASH. L. REV. 292, 302 (2013), http://www.gwlr.org/wp-content/uploads/2013/01/Stoughton_81_1.pdf. 501 Wex Legal Dictionary explains the doctrine of mootness as follows: 

Because Federal Courts only have constitutional authority to resolve actual disputes (see Case or Controversy) 

legal actions cannot be brought or continued after the matter at issue has been resolved, leaving no live dispute 

for a court to resolve. In such a case, the matter is said to be “moot.” For Supreme Court decisions focusing on 

mootness, see, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) and Hicklin v. Orbeck, 437 

U.S. 518 (1978). Wex Legal Dictionary, Moot (Legal Information Institute, Cornell Univ.), 

https://www.law.cornell.edu/wex/moot. 
Chapter 3: Recent Changes in Voting Laws and Procedures 91

out the viability of further litigation on behalf of that plaintiff.502 Although federal courts may

recognize that the tactic of making changes in the face of litigation (as opposed to permanent,

systemic changes) is not a permanent solution to voting rights violations,503 in private litigation,

individual plaintiffs who are injured are still needed for standing, and in order to prove the case.504

Despite these hurdles, after the Crawford decision, voter ID laws were challenged in a number of

other states in the pre- and post-Shelby County era. The research shows that in addition to the

above factors, the success of these challenges has been closely dependent upon the factual details

of each case.

Prior to Shelby County, voter ID laws had been precleared under Section 5 in Georgia (2011)505

and South Carolina (2012), but as discussed in Chapter 2 of this report, Texas’ strict voter ID law

was not precleared (2012).506 The DOJ also objected to South Carolina’s voter ID law as

retrogressive, but it was eventually precleared by a federal court after the state added a “reasonable

impediment” exception.507 Specifically, the court stated that:

. . . South Carolina’s new law, Act R54, does not require a photo ID to vote. Rather,

under the expansive “reasonable impediment” provision in Act R54—as

authoritatively interpreted by the responsible South Carolina officials, an

interpretation on which we base our decision today—voters with the non-photo

voter registration card that sufficed to vote under pre-existing law may still vote

without a photo ID. Those voters simply must sign an affidavit at the polling place

and list the reason that they have not obtained a photo ID.508

In contrast, Texas’ strict photo ID law (SB 14) was struck down as retrogressive in litigation under

Section 5,

509 primarily because of the racially discriminatory impact of requiring photo ID in order

 

502 Jessica Parks, Lead Plaintiff in Pennsylvania Voter ID Case Gets Photo ID, PITTSBURGH POST-GAZETTE (Aug. 

18, 2012), http://www.post-gazette.com/news/state/2012/08/18/Lead-plaintiff-in-Pennsylvania-voter-ID-case-getsphoto-ID/stories/201208180187 (showing that 93-year-old Viviette Applewhite (lead plaintiff) was given ID after 

she testified that she could not get ID needed to vote after various attempts at the Pennsylvania Department of Motor 

Vehicles). 

503 Puerto Rican Org. for Political Action v. Kusper, 350 F. Supp. 606, 611 (N.D. Ill. 1972). 504 See Applewhite v. Com., 2014 WL 184988, No. 330 M.D. 2012 (Pa. Commw. Ct. 2014),

https://www.clearinghouse.net/chDocs/public/VR-PA-0115-0009.pdf. 505 See, e.g., Press Release, Rome News Tribune, Secretary of State: Georgia’s Voter ID Requirement Cleared by 

Feds, ROME NEWS TRIBUNE (April 4, 2011), http://www.northwestgeorgianews.com/rome/secretary-of-stategeorgia-s-voter-id-requirement-cleared-by/article_ec638578-2423-57b3-a792-e5b7eae70647.html [hereinafter

Rome News Tribune, Georgia’s Voter ID]. 506 DOJ Section 5, supra note 226 (last updated Aug. 6, 2015); see also South Carolina v. United States, 898 F. 

Supp. 2d 30 (D.D.C. 2012); Texas, 888 F. Supp. 2d at 144-45 (D.D.C. 2012), vacated and remanded, 49 F. Supp. 3d 

27 (D.D.C 2014) (2013) (remanded based on Shelby Cty.). 507 South Carolina, 898 F. Supp. 2d at 32. 508 Id. 509 See Texas, 888 F. Supp. 2d at 144-45. 
92 An Assessment of Minority Voting Rights Access

to vote, ongoing racial disparities in access to the underlying documents, and disparities in access

to the time and transportation needed to get a government-issued photo ID.510

As in Indiana, to mitigate some of the strict voter ID laws they have enacted, some states have

begun offering free voter IDs to registrants who lack the proper identification demanded by the

statute.511 National Review columnist John Fund testified during the Commission’s briefing that a

free voter ID card would be like the “Freedom Cards” supported by Martin Luther King III and

former Atlanta Mayor Andrew Young, in that it would not only enable a person to vote, but also

enable the “poor and disadvantaged” people to enter “mainstream American life.”512 Despite any

potential benefits, many opponents of voter ID laws equate these laws to the poll taxes of the Jim

Crow era. They argue that even if the ID itself is offered free of charge, there are other costs

citizens must pay in order to receive these IDs. For instance, expenses for documentation (e.g.,

birth certificate), travel, and wait times are significant—especially for low-income voters (who are

often voters of color)—and they typically range anywhere from $75 to $175.513 According to

Professor Richard Sobel, even after being adjusted for inflation, these figures represent far greater

costs than the $1.50 poll tax outlawed by the 24th Amendment in 1964.514 Similarly, during the

Commission’s New Hampshire SAC briefing on voting rights, advocates commented that although

their state’s voter ID law is not strict, it still presents barriers for homeless, disabled, and elderly

voters.515

Table 3 summarizes the status of litigation of voter ID laws in the time period studied by the

Commission in this report. Post-2006, pre-Shelby County cases include Section 5 matters in

Georgia, South Carolina, and Texas, and a Section 2 claim in Arizona. Post-Shelby County, voter

ID laws have been challenged through litigation of Section 2 claims in Alabama, North Carolina,

Texas, Virginia, and Wisconsin; and during this time period, voter ID laws in Arkansas, Missouri,

North Dakota, Pennsylvania, and Tennessee were challenged in state courts under state

constitutional protections. State constitutional claims are included herein because due to the

complexity of Section 2 litigation, advocates are reaching for non-VRA theories to protect voting

rights.516

 

510 See Discussion and Sources cited at notes 421-26, supra. 511 See Sobel, High Cost, supra note 499, at 2 (noting that many states post-Crawford began offering “free” photo 

voter IDs, specifically noting Pennsylvania, South Carolina, and Texas as three states who have done such 

programs). 

512 John Fund, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 2 [hereinafter Fund, 

Written Testimony] (“The Freedom Card would eliminate some of the worst barriers to poor people participating in 

our banking industry. In addition, the Freedom Card would significantly improve the integrity of the I-9 employee 

verification process since it would be much harder for a person applying for a job to use another worker’s card”).

513 Sobel, High Cost, supra note 499, at 2. 514 Id. at 2, 30-31. 515 See Appendix D for a summary of New Hampshire State Advisory Committee (also discussing only 2 

documented cases of voter fraud from 2000-2012 (0.0003 percent of all voters). 516 See, e.g., NAACP Legal Defense and Educational Fund, The Cost (in Time, Money, and Burden) of Section 2 of 

the Voting Rights Act Litigation, NAACP LDF (Oct. 25, 2017), 

http://www.naacpldf.org/files/case_issue/Section%202%20costs%2010.25.17.pdf (discussing Section 2 cases 
Chapter 3: Recent Changes in Voting Laws and Procedures 93

In the following chart, an “amended” photo ID law means that an original, strict photo ID law was

amended to include exceptions, such as the provision of free IDs or the ability for a voter to cast a

ballot without an ID based on an affidavit. The chart illustrates that VRA claims against voter ID

laws are not always successful, and that to date, success varies with whether an extensive

evidentiary record can be developed to prove discriminatory impact in a timely manner, and

whether there are exceptions to the photo ID rule.

Table 3: Results of Major Litigation Challenging Voter Identification Laws (2006-Present)

State (date of ruling(s)) Status Type of Claims

Georgia (2011)517 Precleared under Section 5 likely based on exceptions 

permitting voters to sign affidavits swearing they could 

not get photo ID and vote without ID.

Section 5

South Carolina (2012)518 Precleared under Section 5 based on “reasonable 

impediment” type of exceptions permitting voters to 

sign affidavits swearing they could not get photo ID

and vote without ID.

Section 5

Arizona (2012)519 Ninth Circuit affirmed lower federal court’s opinion 

rejecting facial challenge (based on the limited 

evidence brought in haste to try to get a preliminary 

injunction).

Section 2; U.S. 

Constitution

Pennsylvania (2012 and 

2014)520

Strict photo ID enjoined (2012) and an amended photo 

ID law was struck down because even with “free ID,” 

the law still burdened state constitutional rights to vote 

for those without state ID who would have to procure 

one (2014).

State constitutional 

claim

Texas (2012, 2014, 2016, 

2018)521

Strict photo ID law (SB14) struck down under Section 

5 (2012), but this was vacated 2 days after Shelby 

Section 2; U.S. 

Constitution

 

costing millions of dollars, and that Section 2 cases take 2-5 years to resolve); see also Dale Ho, Voting Rights 

Litigation After Shelby County, Mechanics and Standards in Section 2 Vote Denial Claims, 17 N.Y.U. J. LEG. &

PUB. POL’Y 675, 697-705 (2014), http://www.nyujlpp.org/wp-content/uploads/2014/11/Ho-Voting-RightsLitigation-After-Shelby-County-17nyujlpp675.pdf (discussing fewer Section 2 precedents and complexity of 

elements in vote denial cases and need to develop new legal precedents in the wake of Shelby County). 517 See, e.g., Rome News Tribune, Georgia’s Voter ID, supra note 505. 518 South Carolina v. United States, 898 F. Supp. 2d 30 (D.D.C. 2012). 519 Gonzalez v. Arizona, 677 F.3d 383, 407 (9th Cir. 2012). 520 Applewhite v. Com., 2012 WL 3332376, No. 330 M.D. 2012 (Pa. Commw. Ct. 2012), vacated, 617 Pa. 563, 54 

A.3d 1 (2012), https://www.clearinghouse.net/chDocs/public/VR-PA-0115-0001.pdf; see also Applewhite v. Com., 

2014 WL 184988, No. 330 M.D. 2012 (Pa. Commw. Ct. 2014), https://www.clearinghouse.net/chDocs/public/VRPA-0115-0009.pdf. 521 There are four main decisions regarding voter ID in Texas in this era: (1) Texas, 888 F. Supp. 2d at 144-45 

(D.D.C. 2012), vacated and remanded, Texas v. Holder, 570 U.S. 928 (2013) (remanded on June 27, 2013, based on 

Shelby County, after which the SB 14 was immediately put back into effect); (2) Veasey, 71 F. Supp. 3d at 707 (SB 

14 was preliminarily enjoined on basis of likelihood of success on the merits for intentional discrimination and with 

regard to Section 2’s prohibition of discriminatory effects), but this was stayed upon appeal, Veasey, 769 F.3d at 
94 An Assessment of Minority Voting Rights Access

State (date of ruling(s)) Status Type of Claims

County; then preliminarily enjoined under Section 2 

(2014) and permanently enjoined as intentionally 

discriminatory (2016); amended photo ID law (SB 5) 

was struck down by lower court (2017), but recently 

overturned by 5th Circuit panel (April 27, 2018). 

Tennessee (2013, 2015)522 Strict photo ID law of 2011 upheld by state supreme 

court (2013); amended in 2013 to limit acceptable IDs 

to federal or Tennessee-issued IDs only. Students sued 

alleging discrimination, particularly against out-of-state 

students, but the court granted the state’s motion to 

dismiss (Dec. 22, 2015).

14th and 26th

Amendments of 

U.S. Constitution

Wisconsin (2014 and 2016)523 Strict and amended photo ID laws struck down by 

lower federal court under Section 2; overturned by 7th

Circuit (2014); with subsequent limited success on U.S. 

Constitutional claims as applied to college IDs (2016).

Section 2; U.S. 

Constitution

North Carolina (2016)524 Strict photo ID law and amended version both struck 

down by Fourth Circuit due to discriminatory intent 

(2014).

Section 2; U.S

Constitution

Virginia (2016)525 Fourth Circuit upheld lower federal court’s opinion that 

photo ID law with significant exceptions and free ID 

provisions did not present undue burden or have 

discriminatory effect (2016).

Section 2; U.S. 

Constitution

 

898, 135 S. Ct. 9 (2014) (denying motion to vacate stay); (3) Veasey, 830 F.3d at 272 (SB 14 found to be 

intentionally racially discriminatory, remanded to district court on equal protection claim and on remedies); in the 

interim, Texas amended SB 14 and introduced SB 5, which provided for new exceptions to the strict voter ID bill, 

including a “reasonable impediment procedure,” as well as expanding the list of acceptable identifications. SB 5 was 

also found to be intentionally discriminatory in (4) Veasey v. Abbott, 248 F. Supp. 3d 833, 835-37 (S.D. Tex. 2017) 

(holding that SB 5 must be invalidated as tainted fruit of intentional discrimination), but after the Fifth Circuit (en 

banc) affirmed the relevant decision and remanded the remedies issue, on remand, on April 27, 2018, a three-judge 

panel of the Fifth Circuit concurred to strike down the en banc ruling of the full Fifth Circuit, based on the theory 

that Texas’ appeal was not moot and that SB 5 should be independently evaluated. Veasey v. Abbott, 888 F.3d 792, 

795-96, 799, 2018 WL 1995517 (5th Cir. 2018). In this latest ruling, which is likely to be appealed, in the 2-1 

decision, of the three judges, one ruled that the lower court’s opinion was based on inequitable remedies because SB 

5 was not “tainted” by prior discrimination and that the state’s appeal was moot, Id. at 801-02, the second agreed 

with overturning the permanent injunction because it was moot as the legislature should be allowed to solve 

problems, Id. at 804-06, and the third judge that it was still “tainted.” Id. at 823. 522 City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013). See also Nashville Student Org. Comm. v. Hargett, 155 

F. Supp. 3d 749 (M.D. Tenn. 2015) (granting state’s motion to dismiss). Notably, the mayor of Memphis found a 

unique way to provide access to voters, by issuing a library card that qualifies. See Brentin Mock, The Overlooked 

Fight Against Voter ID in Tennessee, FACING SOUTH (Nov. 1, 2013), https://www.facingsouth.org/2013/11/theoverlooked-fight-against-voter-id-in-tennessee.html. 523 Frank, 768 F.3d 744. But see One Wisconsin Inst. v. Walker, 186 F. Supp. 3d 958 (W.D. Wis. 2016) (state did not 

have a rational basis for excluding expired college or university IDs). 524 McCrory, 831 F.3d at 236-37 (2016), cert. denied 137 S. Ct. 1399 (2017). 525 Lee v. Virginia Bd. Elections, 843 F.3d 592 (4th Cir. 2016).
Chapter 3: Recent Changes in Voting Laws and Procedures 95

State (date of ruling(s)) Status Type of Claims

North Dakota (2016)526 Preliminary injunction issued due to likelihood of 

success under U.S. Constitutional claims, holding that 

the state could not enforce its new strict law requiring 

photo ID with a current address that excluded P.O. 

boxes and did not have fails-safe mechanism, which 

burdened Native Americans, and required the state to 

return to previous voter ID guidelines that included 

affidavit option (2016); state complied. 

Section 2; U.S. and 

state constitutions

Arkansas (2014 and 2018)527 The state Supreme Court struck down a strict photo ID 

law, holding that it violated the state’s Constitution 

(2014); amended version also enjoined (2018) but 

stayed (May 2, 2018).

State constitutional 

claim

Alabama (2018)528 A federal court granted Defendants’ Motion to Dismiss 

claims against photo ID rule with affidavit option 

(2018), but plaintiffs recently appealed.

Section 2

Post-Shelby County Considerations

In the post-Shelby County era, due to the lack of preclearance in formerly covered jurisdictions,

strict and potentially discriminatory voter ID laws are implemented soon after their enactment. As

discussed above, this speedy implementation occurred within hours of the Shelby County decision

in the case of Texas, and in North Carolina, the day after.529 Since elections occur with frequency

in the United States, post-Shelby County voter ID litigation is on an accelerated timeline. For

example, in 2014 in North Carolina, elections were held on May 6 (local school board and federal

primary, plus 12th Congressional district special election) and November 4 (local school board,

statewide ballot measure and federal general election).530 In Texas in 2014, elections were held on

January 28 (state house special election), March 4 (primary), May 10 (state senate special election,

56 school board elections), May 13 (one school board election), May 27 (primary runoff election

date), and November 4 (federal, statewide ballot measure and 28 school board elections).531

 

526 Brakebill v. Jaeger, 2016 WL 7118548, No. 1:16-CV-0008 (D.N.D. Aug. 1, 2016), 

https://www.documentcloud.org/documents/3002700-North-Dakota-Ruling.html. 527 Martin v. Kohls, 444 S.W.3d 844 (Ark. 2014); see also Andrew DeMillo, Arkansas Supreme Court Says State 

Can Enforce Voter ID Law, ASSOCIATED PRESS, (May 2, 2018), 

https://apnews.com/656a45047efc4e9d998a61de714ad892 (discussing current and prior decisions). 528 Greater Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253 (N.D. Ala. 2018), 

https://www.documentcloud.org/documents/4346593-AL-Voter-ID-Decision.html; see also Press Release, NAACP

LDF, LDF Files Notice of Appeal in Alabama Photo ID Case, NAACP LDF (Jan. 12, 2018), 

http://www.naacpldf.org/press-release/ldf-files-notice-appeal-alabama-photo-id-case. 529 See Discussion and Sources cited in Chapter 2, at notes 311-12, supra. 530 Ballotpedia, North Carolina Elections, 2014, BALLOTPEDIA, 

https://ballotpedia.org/North_Carolina_elections,_2014 (last accessed July 30, 2018). 531 Ballotpedia, Texas’s 2014 Elections, BALLOTPEDIA, https://ballotpedia.org/Texas_elections,_2014 (last 

accessed July 30, 2018). 
96 An Assessment of Minority Voting Rights Access

Professor Michael Pitts, who has participated in and studied voting rights litigation, testified at the

Commission’s briefing that it is challenging to locate individual plaintiffs in time to petition for

injunctive relief before the next election.532 Other litigation experts also testified that the relevant

litigation is exceedingly time-consuming and expensive. 533 It is also critically impactful that the

Supreme Court held in various recent cases (in 2014 in particular) that injunctive relief may not

be granted too close to Election Day,534 making the rush to the courthouse to file a case even more

time-sensitive. Because the Supreme Court has made clear that it will be hesitant to grant injunctive

relief during the two months before a federal election, plaintiffs must be identified, preliminary

evidence must be collected, and their case must be filed well in advance of Election Day.535

Furthermore, the number and complexity of voter ID cases summarized above show that this is a

rapidly developing area of law, particularly under Section 2 of the VRA.536 Since its 2008 decision

in Crawford, the Supreme Court has not yet heard the as-applied voter ID case it would seem to

welcome, much less a case to determine what the parameters of Section 2 are in voter ID cases.

What is clear is that in states formerly subject to preclearance under Section 5 of the VRA, these

new laws are being tested on voters during elections, rather than being put on hold until they could

be proven to be nondiscriminatory.537

 

532 Briefing Transcript, supra note 234, at 187 (statement by Michael J. Pitts, Professor, Indiana U.); see also

Gonzalez, 677 F.3d at 407 (“The record does include evidence of Arizona’s general history of discrimination against 

Latinos and the existence of racially polarized voting. But Gonzalez adduced no evidence that Latinos’ ability or 

inability to obtain or possess identification for voting purposes (whether or not interacting with the history of 

discrimination and racially polarized voting) resulted in Latinos having less opportunity to participate in the political 

process and to elect representatives of their choice. Without such evidence, we cannot say that the district court’s 

finding that Gonzalez failed to prove causation was clearly erroneous. Therefore we affirm the district court’s denial 

of Gonzalez’s VRA claim.”); and id. at 389 (plaintiffs filed shortly after passage of the voter ID law). 533 McCrary, Written Testimony, supra note 445, at 7 (discussing the Texas voter ID litigation cost “well into six 

figures.”); see also Briefing Transcript, supra note 234, at 187 (statement by Michael J. Pitts); see also Briefing 

Transcript, supra note 234, at 90 (statement by Sherrilyn Ifill) (noting Texas voter ID case that was filed in 2014 is 

still ongoing and has lasted four years, during which a voter ID law that was found to be intentionally discriminatory 

has not been enjoined. Therefore, elections are being conducted while an estimated 600,000 eligible voters, who are 

disproportionately black and Latino, lack the type of ID needed to vote); see also Briefing Transcript, supra note 

234, at 29 (statement by Vanita Gupta) (testifying that voting rights litigation is “slow,” “time-intensive,” and takes 

many “resources” to do correctly.); but see 42 U.S.C. § 1988 (allowing, however, attorneys’ fees and litigation costs 

to be granted eventually to private litigants (but not the DOJ) in these cases). Some advocates do not see the merit in 

challenging voter ID laws. See Briefing Transcript, supra note 234, at 189 (statement by Cleta Mitchell, Partner, 

Foley & Lardner LLP, testifying that litigation against voter ID laws is part of what she derided as “the professional 

grievance industry.”). 534 See Husted, 135 S. Ct. 42; North Carolina, 135 S. Ct. 6; Frank, 135 S. Ct 7; and Veasey, 135 S. Ct. 9. 535 Id.; see also Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006). 536 See, e.g., Dale Ho, Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby, 127 

YALE L. J. (2017-2018), https://www.yalelawjournal.org/forum/the-new-vote-denial-litigation-since-shelby-county

(discussing federal court of appeals circuit splits over the standards of proof in Section 2 vote denial cases, including 

voter ID cases in North Carolina, Texas, and Wisconsin). 537 52 U.S.C. §10304(a).
Chapter 3: Recent Changes in Voting Laws and Procedures 97

Impact of Voter ID Laws on Racial Minorities

Various studies have found that photo ID laws have a racially discriminatory impact. A recent

study conducted by MIT political scientist Dr. Charles Stewart surveyed 10,000 registered voters

from all 50 states and Washington, D.C. and found that in comparing types of ID possessed, the

great majority had some form of government identification; however, the registered voters

surveyed that did not vote in strict photo ID states were twice as likely to state they did not vote

due to a lack of identification.

538 As discussed below, like others, Stewart also found significant

racial differences, with black and Latino voters disproportionately lacking photo ID.539 In addition

to this study, several large-scale surveys of the American public have documented significant

disparities in the possession of government issued IDs by race, age, and income.540 Federal courts

have found that this absence of ID is in large part due to less access to the underlying documents

needed to secure a government-issued photo ID, such as a birth certificate or naturalization

documents, both of which are costly to replace.541 Furthermore, several courts and scholarly

studies have found that socioeconomic disparities may make the cost of finding out about voter ID

rules and visiting government offices—which may not be accessible in terms of hours, location,

and other factors—disproportionately burdensome to voters of color.542

Dr. Stewart’s 2012 survey also found that black and Latino voters were asked to present ID more

often than white voters, even in jurisdictions that do not require voter ID.

543 Other research

suggests in jurisdictions where voter ID laws are established, poll workers disproportionately ask

racial minorities for identification.544 As shown in Table 4 below, a 2012 national survey of adults

 

538 Charles Stewart, Voter Id: Who Has Them? Who Shows Them?, 66 OKLA. L. REV. 21, 22 (2013), 

https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1063&context=olr (“[W]hile 

few non-voters attribute their failures to vote to their lack of identification, the type of voter-identification regime 

does matter—nonvoters in states with strict photo identification laws are twice as likely to state they failed to vote 

due to the lack of identification, compared to nonvoters in states in which such laws are less strict (or even nonexistent).”).

539 Id. at 25. 540 See Matt Barreto, Stephen Nuño, & Gabriel Sánchez, The Disproportionate Impact of Voter-ID Requirements on 

the Electorate—New Evidence from Indiana, PS: POL. SCI. & POL., 42(1), 111-116 (2009), 

http://mattbarreto.com/papers/PS_VoterID.pdf ; see also M.V. Hood III & Charles S. Bullock III, Worth a Thousand 

Words?: An Analysis of Georgia’s Voter Identification Status, 36 AM. POL. RESEARCH 555 (July 2008) (unofficial 

version available at: https://www.brennancenter.org/sites/default/files/legal-work/download_file_50886.pdf). 541 See, e.g., McCrory, 831 F.3d at 236 (regarding “the General Assembly’s decision to exclude as acceptable forms 

of state-issued ID disproportionately held by African Americans”). 542 Keesha Gaskins & Sundeep Iyer, THE CHALLENGE OF OBTAINING VOTER IDENTIFICATION, The Brennan Center 

for Justice (2012), http://www.brennancenter.org/publication/challenge-obtaining-voter-identification; see also

Zoltan Hajnal, Nazita Lajevardi & Lindsay Nielson, Voter Identification Laws and the Suppression of Minority 

Votes, 79 THE J. OF POL. 363 (2017) [hereinafter Hajnal, Lajevardi, Nielson, Voter Identification Laws]; see also

Applewhite, 2014 WL 184988, https://www.clearinghouse.net/chDocs/public/VR-PA-0115-0009.pdf. 543 Charles Stewart III, MIT, Survey of the Performance of American Elections, iii (2012), 

https://elections.delaware.gov/pdfs/SPAE_2012.pdf. 544 Id.; see also Stephen Ansolabehere, Effects of Identification Requirements on Voting: Evidence from the 

Experiences of Voters on Election Day, 42 PS: POL. SCI. & POL. 127 (2009).
98 An Assessment of Minority Voting Rights Access

aged 18-29 also found that even in places without photo ID laws, black and Latino millennials

were asked to show ID more than their white counterparts.

Table 4: Percentage of Young Voters Asked for ID by Type of State Law 

Group No ID Requirement (%) ID Required (%)

All Youth 48.6% 86.1%

Black Youth 65.5% 94.3%

White Youth 42.8% 84.3%

Latino Youth 55.3% 81.8%

Source: November 2012 Black Youth Quarterly Survey545

In “Jim Crow 2.0? Why States Consider and Adopt Restrictive Voter Access Policies,” Keith G.

Bentele and Erin E. O’Brien examined the factors associated with the introduction and enactment

of what they refer to as “restrictive voter access” proposals from 2006 to 2011,

546 defining

restrictive voter access legislation as those policies that relate to photo ID requirements for casting

a ballot, proof of citizenship requirements, laws that introduce restrictions on voting, or restrictions

on absentee and early voting.547 The authors found that restrictive voter access legislation was

introduced from 2006 to 2011 in nearly every state, but these proposals passed more frequently in

southern states in which federal elections are highly contested.548

The statistical models the researchers employed found that the racial composition of a state is

strongly related to the proposed changes that would restrict voter access. That is, restrictive voter

access laws were substantially more likely to be introduced in states with a larger share of AfricanAmerican persons, noncitizen populations, and higher minority voter turnout, as well as in states

where both minority and low-income turnout recently increased.549

In 2017, an in-depth study by researchers Zoltan Hajnal, Nazita Lajevardi, and Lindsay Nielson

found that strict photo ID laws have a disproportionate negative impact on the turnout of racial

minorities in primaries and general elections.550 This disparity was especially pronounced in

 

545 OurTime.org, The Time Tax, supra note 391 (citing and reproducing results of Nov. 2012 Black Youth Quarterly 

Survey, as analyzed by Professors John G. Rogowsky and Cathy J. Cohen. The original survey data are available at 

http://blackyouthproject.com/wp-content/uploads/2015/11/voter_id_effect_2012.pdf). 546 Keith G. Bentele & Erin E. O’Brien, Jim Crow 2.0?: Why States Consider and Adopt Restrictive Voter Access 

Policies, 11 PERSPECTIVES IN POL. 1088 (2013), 

https://scholarworks.umb.edu/cgi/viewcontent.cgi?article=1010&context=sociology_faculty_pubs [hereinafter

Bentele and O’Brien, Jim Crow 2.0]. 547 Id. 548 Id. at 1089. 549 Id. (The authors demonstrate this finding both from their independent variables that measure turnout amongst 

communities of color in previous presidential elections, and the larger fraction of African Americans who are 

statistically significantly associated with more proposed restrictive access legislation. In addition, the authors found 

that restrictive voter access legislation is more likely to be proposed where low-income registrants turned out to vote 

in higher rates in the previous presidential elections, and where there is a larger share of noncitizens.). 550 Hajnal, Lajevardi, Nielson, Voter Identification Laws, supra note 542 (The authors coded a state’s voter 

identification law as “strict” if required voters are required to show photo identification to cast ballots. The authors 
Chapter 3: Recent Changes in Voting Laws and Procedures 99

primary elections, and the researchers suspected is due to these elections being generally seen as

less salient, and because any additional costs to accessing the ballot box disproportionately affect

racial minority voters.551

The Hajnal study also found that in the period 2006-2014 that the study analyzed, Latino turnout

was 7.1 percent lower in strict voter ID states in general elections, and 5.3 percent lower in

primaries; the black turnout gap was negligible in general elections, but 4.6 percent lower in

primaries; Asian turnout was 5.4 percent lower in general, and 6.2 percent lower in primaries;

multiracial turnout was 5.3 percent lower in general, and 6.7 percent lower in primaries; while

white turnout was 0.2 percent higher in general, and 0.4 percent higher in primaries.552

The authors found a substantial increase in the white vs. non-white voter turnout gap in strict voter

ID states.553 Their results are robust because even after controlling for state-level electoral laws,

campaign dynamics, and individual characteristics, communities of color were found to be

disproportionately and negatively affected.554 Moreover, the white vs. non-white gaps were

especially pronounced among Latino- and Asian-American voters. For example, in comparing

turnout in states with strict voter ID laws vs. states with non-strict voter ID laws:

x The predicted Latino-white gap in turnout rates for a general election jumped from 4.9 

percent in states without strict voter ID laws to 13.5 percent in states with strict voter ID

laws; and this gap more than tripled in primary elections;555

x For Asian-American voters, the voter turnout gap relative to white voters increased from 

6.5 percent to 11.5 percent in general elections, and from 5.8 percent to 18.8 percent in 

primary elections;556

x The model predicts that Latino Americans were 10 percent less likely to turn out in states 

with strict voter ID laws than in states without strict voter ID laws, and that these effects 

were almost as large (9.3 percent) in primary elections;557

 

also study more lenient voter identification laws that do not require photo identification, and they also identified 

several other gaps in the literature on the impact of voter ID laws. For instance, much of the previous research relied 

upon self-reported voter turnout data instead of verified voter turnout data. Using self-reported estimates of voter 

turnout makes it more difficult to study the impact of these laws on minority voters, as racial minorities are more 

likely to over-report their participation than white registered voters, and therefore, under-report any negative impacts 

of voter ID laws). See id. at 375 (“More critically, those who over-report turnout differ by race and class from those 

who do not over-report turnout. Racial minorities, in particular, are particularly prone to over-report their 

participation in elections.”). This study analyzed 51 elections—26 general and 25 primary—across 10 states from 

2006 to 2014 with strict voter ID laws using validated voter turnout data from the Cooperative Congressional 

Election Study (CCES). Id. at 369. 551 Id. at 368. 552 Id. 553 Id.; see also Ho, Written Testimony, supra note 446, at 7. 554 Hajnal, Lajevardi, Nielson, Voter Identification Laws, supra note 542, at 368. 555 Id. at 369. 556 Id. at 368. 557 Id. 
100 An Assessment of Minority Voting Rights Access

x African-American turnout could be expected to decrease by 8.6 percent in strict voter ID 

states;

558 and 

x Similarly, Asian-American turnout could be expected to decrease by 12.5 percent.559

Despite the plethora of statistical evidence presented in their article, the authors concluded that

they could not demonstrate a causal connection between voter ID laws and turnout.560 It is

extremely challenging to disaggregate the impact of voting procedures from other factors such as

the popularity of candidates,561 and even the weather on Election Day.562 However, the evidence

presented in the article strongly suggests that where strict voter ID proposals are enacted, racial

and ethnic minorities are less apt to vote.

But Dan Morenoff, Executive Director of the Equal Voting Rights Institute, a public-interest law

firm that seeks to protect every Americans’ fundamental right to vote and election integrity, while

seeking to “redeem the VRA” as they believe it has been used to create “racial entitlements,”563

believes this is false. He argues in his written testimony to the Commission that there is significant

scholarly disagreement on the impact of laws enacted or enforced post-Shelby County, including

strict voter ID laws and their effect on voter turnout.564 Morenoff testified that while one study

found that voter ID laws have dramatic impact in decreasing minority voters, other articles with

statistically significant results found that these laws may actually increase turnout for minority

voters.565 So, on the one hand, Morenoff asserts that it is not possible to know if turnout has been

 

558 Id. 559 Id. 560 Id. 561 Gustavo Lopez & Antonio Flores, Dislike of Candidates or Campaign Issues was Most Common Reason for not 

Voting in 2016, PEW CENT. RESEARCH (June 1, 2017), http://www.pewresearch.org/fact-tank/2017/06/01/dislike-ofcandidates-or-campaign-issues-was-most-common-reason-for-not-voting-in-2016/ [hereinafter Lopez and Flores, 

Dislike of Candidates]. 562 Anna Bassi, Weather, Mood, and Voting: An Experimental Analysis of the Effect of Weather Beyond Turnout, 

UNI OF N.C. (June 2, 2013), https://www.unc.edu/~abassi/Research/weather-mood-voting.pdf. 563 See Equal Voting Rights Institute, Our Mission, http://equalvotingrights.org/our-mission/ (last accessed July 30, 

2018). 564 Daniel Morenoff, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 5 [hereinafter

Morenoff, Written Testimony].

565 Id. at 5, n.14; see also Hajnal, Lajevardi, Nielson, Voter Identification Laws, supra note 542 (the authors found 

that voter ID laws skew the elections to the right.); but also see Justin Grimmer, Eitan Hersh, Marc Meredith, 

Jonathan Mummolo, & Clayton Nall, Comment on “Voter Identification Laws and the Suppression of Minority 

Votes,” (Aug. 17, 2017), STANFORD, https://stanford.edu/~jgrimmer/comment_final.pdf. (However, a replicated 

study led by Justin Grimmer questioned the validity of their research, suggesting that although the effects of voter 

identification laws may exist, the study employed flawed data and made miscalculations that impeded the authors’ 

ability to make conclusions about the impact of voter identification laws. According to Grimmer and colleagues, the 

Hajnal et al. study’s conclusions are problematic for several reasons. First, the data employed in the study estimated 

voter turnout rate was 10 points below the verified turnout rates in 15 states. Id. at 3. Second, according to the 

authors of the replication study, the researchers had significant miscalculations and misinterpretations of their data 

and results. Id. at 9. Lastly, Grimmer et al. demonstrated that when the errors were corrected, they could recover 

positive, negative, or null estimates of the effect of voter ID laws on turnout, making it difficult to claim any firm 

conclusions concerning the impact of voter ID laws on turnout. Id.). 
Chapter 3: Recent Changes in Voting Laws and Procedures 101

impacted at all by the influx of voter ID laws; and on the other, whatever the impact is, it might

not be substantial enough to determine an election.566 The Commission also received testimony

from another panelist, John Park, Counsel with Strickland Brockington Lewis LLP, stating that

after the implementation of voter ID laws in Georgia and Indiana, voter turnout increased, and in

Virginia, registrars and experts reported little to no impact on voting or registration because of the

recently enacted voter ID law.567

While scholarly data on impact on turnout seem to be split, as various expert witnesses noted, the

legal test as to whether voter ID laws may be discriminatory does not depend on turnout. Under

the VRA, the test of whether a voting procedure is discriminatory depends on whether voters of

color do or do not have equal access to political participation. Therefore, even if turnout has not

decreased or even increased,568 if voters of color have less access or higher barriers to political

participation and the ability to elect representatives of their choice, strict voter ID laws may violate

their rights under the VRA. This has been the case in North Carolina and Texas, where federal

courts found that black and Latino voters disproportionately lacked access to the type of photo IDs

required to vote.569

In his testimony before the Commission, Professor Justin Levitt argued that voter ID laws are not

needed, since every state already has provisions that require voters to confirm their identity when

casting ballots.570 Levitt added that the controversy surrounding voter ID laws is not about whether

we should or should not have an identification or a security system. Instead, according to Levitt,

the issue is that there are states that are quite restrictive in the documentation they allow.571

Moreover, Levitt testified that these restrictions disparately impact minority voters and in some

cases were proven to have been enacted because of that disparate impact.572 Therefore, the

disparate impact is not a condition of having an identification system in place; rather, it is the result

of particular choices that some state legislatures have made. Concerns about these laws arise when

they are enacted with discriminatory intent or have a discriminatory effect on minority voters.573

But despite any discriminatory impact, proponents of voter ID legislation posit that voter ID

legislation is necessary to protect the integrity of the electoral process and guard against voter

fraud.574 For instance, Kansas Secretary of State Kris Kobach, a proponent of strict voter ID laws,

 

566 Id. 567 John Park, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 10 [hereinafter Park, 

Written Testimony]. 

568 See, e.g., Briefing Transcript, supra note 234, at 175 (statement by Sherrilyn Ifill). 569 See Discussion and Sources cited at notes 193 (NC) and 288 (Tex.), supra. 570 Briefing Transcript, supra note 234, at 66 (statement by Justin Levitt); see also HAVA rules discussed in the text 

accompanying notes 381-82, supra. 571 Briefing Transcript, supra note 234, at 67 (statement by Justin Levitt). 572 Id. at 68. 573 Id. 574 See von Spakovsky, Written Testimony, supra note 325; see also Fund, Written Testimony, supra note 512; see

also Cleta Mitchell, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 [hereinafter Mitchell, 

Written Testimony]; see also Hans von Spakovsky, Voter Photo Identification: Protecting the Security of Elections, 
102 An Assessment of Minority Voting Rights Access

argues, “[f]ear that elections are being stolen erodes the legitimacy of our government,” and “voter

identification laws protect this legitimacy.”575 In addition, these experts argue that IDs are

ubiquitous, easy to obtain, and needed in everyday life.576 Others contend that the photo IDs should

be made easy to acquire, as this will also help people navigate other aspects of society. 577 These

arguments are discussed and relevant data are analyzed in the following section of this chapter.

Voter Fraud and Other Arguments

The prominent argument championed by supporters of voter ID laws and similar measures is that

they prevent voter fraud. Voter fraud includes allegations of: in-person voter fraud, noncitizen

voting, double voting, and voter registration rolls that are “bloated” and contain ineligible voters

who should be removed. Each of these allegations arose during the Commission’s national briefing

on minority voting rights as reasons for strict voter ID laws and other measures discussed in this

chapter (these include: cuts to early voting, requiring documentary proof of citizenship to register,

challenges to voter eligibility, and purges of voter registration rolls). After a general review of data

regarding voter fraud, each of the major allegations regarding voter fraud that the Commission

heard testimony about are examined in turn below.

A 2011 study by the Republican National Lawyers Association found that from 2000 to 2010, 21

states had only one or two convictions each “for some form of voter irregularity.”578 Professors

David Cottrell, Michael C. Herron, and Sean J. Westwood examined the main types of voter fraud

alleged in 2016 (impersonation, double voting and ineligible voting)579 to determine how common

they were in the 2016 Presidential Election.580 They used aggregate election statistics to examine

allegations and found that:

Consistent with existing literature, we do not uncover any evidence supportive of

Trump’s assertions of systemic voter fraud in 2016. Our results imply neither that

there was no fraud at all in the 2016 General Election . . . . They do strongly suggest,

however, that the expansive voter fraud concerns espoused by Donald Trump and

 

THE HERITAGE FOUNDATION (July 13, 2011), https://www.heritage.org/report/voter-photo-identification-protectingthe-security-elections. 575 Kris Kobach, The Case for Voter ID, WALL ST. J. (May 23, 2011), 

https://www.wsj.com/articles/SB10001424052748704816604576333650886790480. 576 Id. 577 Fund, Written Testimony, supra note 512, at 1-2. 578 See Debbie Hines, New Republican Data Shows No Need for Voter ID Laws, HUFFINGTON POST (Feb. 11, 2012), 

https://www.huffingtonpost.com/debbie-hines/voter-fraud-statistics_b_1139085.html (discussing underlying data 

found at Republican National Lawyers Association, Election Integrity News, http://www.rnla.org/votefraud.asp). 579 David Cottrell, Michael C. Herron, & Sean J. Westwood, A Rigged Election? Evaluating Donald Trump’s 

Allegations of Massive Voter Fraud in the 2016 Presidential Race, 51 ELECTORAL STUDIES 123, 129-30 (Feb. 

2018). 580 Id. at 124 (abstract).
Chapter 3: Recent Changes in Voting Laws and Procedures 103

those allied with him are not grounded in any observable features of the 2016

election.581

In a 10-year independent study by News21 commissioned by the Knight Foundation (“News21

Study”), researchers examined public news and court records of all allegations of voter fraud in

all 50 states. Researchers found that there were 2,068 cases of alleged fraud from 2000-2010, but

only 10 cases of allegations of in-person voter fraud (approximately one case per every 15 million

eligible voters).582 They found that the most common form of reported allegations of voter fraud

was absentee ballot fraud (24.2 percent), followed by “unknown” (19.0 percent), registration fraud

(17.8 percent), casting ineligible votes (13.0 percent), and double voting (7.4 percent).583 This

research was updated on a smaller scale in 2016, when data about cases from five states in which

politicians had alleged voter fraud showed that no prosecutions were brought for in-person voter

fraud.584

In 2007, Professor Levitt reviewed nationwide allegations of voter fraud and found that “by any

measure, voter fraud is extraordinarily rare,”585 and that it is many times attributable to “clerical

or typographical errors” or bad data matching that leads to “jumping to conclusions.”586 In 2014,

Levitt conducted a comprehensive study of in-person voter fraud from 2000 to 2014, and found

that there were 31 credible instances among one billion votes cast in general and primary

elections.587 In December 2016, writing for the Washington Post, Philip Bump found that there

were only four documented cases of voter fraud in the 2016 election.588

 

581 Id. 582 NEWS21, Comprehensive Database of U.S. Voter Fraud Uncovers No Evidence That Photo ID Is Needed,

NEWS21 (Aug. 12, 2012), https://votingrights.news21.com/article/election-fraud/; see also the described database at 

NEWS21, Election Fraud in America, NEWS21 (Aug. 12, 2012), http://votingrights.news21.com/interactive/electionfraud-database/ [hereinafter, NEWS21, Election Fraud] (documenting 2,068 allegations of voter fraud between 2000 

and 2012, and noting that News21 is a student reporting project created by the Carnegie Corporation of New York 

and the John S. and James L. Knight Foundation, and based at Arizona State University’s Walter Cronkite School of 

Journalism).

583 Id. 584 Sami Edge & Sean Holstege, Voter Fraud Is Not a Persistent Problem, NEWS21 (Aug. 20, 2016), 

https://votingwars.news21.com/voter-fraud-is-not-a-persistent-problem/ [hereinafter Edge and Holstege, Voter 

Fraud Is Not a Persistent Problem]. 585 Justin Levitt, The Truth About Voter Fraud, 7 THE BRENNAN CENT. JUSTICE (2007), 

https://www.brennancenter.org/sites/default/files/legacy/The%20Truth%20About%20Voter%20Fraud.pdf. 586 Id. at 7-9. 587 See Justin Levitt, A Comprehensive Investigation of Voter Impersonation Finds 31 Credible Incidents Out of One 

Billion Ballots Cast, WASH. POST (Aug. 6, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/08/06/acomprehensive-investigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballotscast/?utm_term=.71e2bad379f3 (linking to underlying data). 588 Philip Bump, There Have Been Just Four Documented Cases of Voter Fraud in the 2016 Election, WASH. POST

(Dec. 1, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/12/01/0-000002-percent-of-all-the-ballotscast-in-the-2016-election-were-fraudulent/?utm_term=.e7c658b95c21 (explaining methodology (Nexis newsaggregation database search) and describing the four cases).
104 An Assessment of Minority Voting Rights Access

At the Alabama SAC briefing, Alabama Secretary of State John Merrill testified that he hassecured

6 convictions for voter fraud in Alabama during his three-year tenure as Secretary of State.589 He

also testified that before he became Secretary of State in January 2015, more than a decade had

passed since any voter fraud conviction had been secured in Alabama.590 Moreover, before passage

of a state voter ID law that he championed to address election integrity, he knew of no evidence

of voter fraud in Alabama.591 In balancing these interests, he has also publicly challenged the

NAACP LDF to show him any cases of voters who have been unable to get Alabama’s free voter

ID.592

Another database of election fraud was collected by the Heritage Foundation, which compiled

1,132 instances of what they term “Proven Voter Fraud” in the last two years, with 983 criminal

convictions and 48 civil penalties in the country.593 Reviewing the data from the Heritage

Foundation database shows that the most common forms of election fraud it contains are in the

following categories, related most to political operatives and not individual voters: absentee ballot

fraud, fraudulent signatures on ballot petitions, vote buying, election insiders, and voter

intimidation.594

As discussed above, this section of the Commission’s report addresses the type of voter fraud that

voter ID laws and the other major types of recent restrictions on voting that impact minority voters

were enacted to correct.595 Therefore, allegations of in-person voter fraud, double voting, “bloated”

voting rolls, and noncitizen voting are each examined below. These allegations have been used

alone or in combination to justify voter ID laws,596 requirements of documentary proof of

citizenship,597 challenges to voter eligibility,598 removal of voters from the rolls,599 cuts to early

 

589 Alabama State Advisory Committee to the U.S. Comm’n on Civil Rights Transcript: Access to Voting in 

Alabama, statement by John Merrill, Sec. of State of Ala., (Feb. 22, 2018) at 5 [hereinafter Merrill, Alabama SAC, 

Briefing]. 590 Id. 591 Id. at 14. 592 Id. at 25. 593 Heritage, Voter Fraud Cases, supra note 470. 594 Id. 595 These are different from the most common forms of fraud identified by either the Heritage Foundation or 

News21. For example, none of the main types of restrictions discussed herein (voter ID, documentary proof of 

citizenship, challenges to eligibility, purges, cuts to early voting, or decreasing access to the polls) are designed to 

address absentee ballot fraud, which is the most common type of voter fraud identified in both databases. Id.; see 

also NEWS21, Election Fraud, supra note 582. 596 See, e.g., Discussion and Sources cited, supra notes 362-64, 490-99 and 571-76 (strict voter ID laws justified by 

allegations of in-person of voter fraud, relevant court findings). 597 See, e.g., Discussion and Sources, infra notes 697-710 (arguments that documentary proof of citizenship 

requirements justified by allegations of various types of voter fraud).

598 See, e.g., Discussion and Sources cited, infra notes 835-42 and 848-50 (arguments that challenges of voters on 

the rolls justified by allegations of various types of voter fraud). 599 See, e.g., Discussion and Sources cited, infra notes 858-60, 867, 873-880, 884-89, 918, 926-28 and 938 (systemic 

voter roll purging based on allegations of various types of fraud, eligibility, and election integrity concerns).
Chapter 3: Recent Changes in Voting Laws and Procedures 105

voting,600 and cuts to language access.601 Before examining the allegations, the Commission notes

that the measures used to remedy them have at times resulted in restricting or infringing upon the

rights of eligible voters and disparately impacted minority voters.602

In-Person Voter Fraud

The Heritage Foundation found 12 instances during the past two years of “impersonation voter

fraud at the polls,” defined at “[v]oting in the name of other legitimate voters and voters who have

died, moved away, or lost their right to vote because they are felons, but remain registered.”603

Current data from Heritage Foundation indicate that impersonation voter fraud at the polls

amounted to 1.06 percent of all cases in the last two years.604

The News21 Study found there is “utterly no evidence”605 that points to any significant level of

instances of in-person voter fraud. Out of 2,068 incidents of alleged voter fraud from 2000-2012,

only 10 (0.5 percent) were allegations of in-person voter fraud.606 The News 21 Study found that

in-person voter fraud allegations were only 0.5 percent of all allegations in all 50 states for over

10 years.607 Yet, in-person voter fraud is the only type of voter fraud that voter ID laws protect

against.608

In the Commission’s briefing, Professor Levitt testified that a number of other empirical studies

have found that in-person voter fraud is exceedingly rare.609 Courts have also taken into account

that in-person voter fraud is “extremely rare,”610 and a “truly isolated phenomenon.”611 Moreover,

 

600 See McCrory, 831 F.3d at 235; Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 547-58 (6th Cir. 

2014), vacated on other grounds, Ohio State Conference of The Nat. Ass’n For The Advancement of Colored People 

v. Husted, 2014 WL 10384647, No. 14-3877 (6th Cir. Oct. 1, 2014) (staying the preliminary injunction pending 

petition of writ of certiorari); see also Discussion and Sources supra, notes 365-67 (North Carolina) and infra, note 

995 (Ohio) (the Sixth Circuit concluded that the district court “properly identified that the specific concern 

Defendants expressed regarding voter fraud—that the vote of an EIP [early in-person] voter would be counted 

before his or her registration could be verified—was not logically linked to concerns with voting and registering on 

the same day.”). 601 See Discussion and Sources, infra notes 1124-27 (alleging fraud among arguments against providing language 

access).

602 See, e.g., McCrory, 831 F.3d 204; Veasey, 830 F.3d 216; Arcia v. Detzner, 908 F. Supp. 2d 1276 (S.D. Fla. 

2012), rev’d sub nom. Arcia v. Fla. Sec’y of State, 746 F.3d 1273 (11th Cir. 2014), opinion vacated and superseded, 

772 F.3d 1335 (11th Cir. 2014), and rev’d and remanded sub nom. Arcia v. Fla. Sec’y of State, 772 F.3d 1335 (11th 

Cir. 2014), and vacated, 2015 WL 11198230, No. 12-22282-CIV (S.D. Fla. Feb. 12, 2015).

603 Heritage, Voter Fraud Cases, supra note 470.

604 Id.

605 Edge and Holstege, Voter Fraud Is Not a Persistent Problem, supra note 584. 606 Heritage, Voter Fraud Cases, supra note 470. 607 Id. 608 See, e.g., Frank v. Walker, 773 F.3d 783, 783 (7th Cir. 2014) (denial of rehearing en banc) (Posner, Wood, 

Rovner, Williams, and Hamilton, J.J., dissenting). 609 Briefing Transcript, supra note 234, at 77-78 (statement by Justin Levitt). 610 Id. (citing sources). 611 Id. (citing sources).
106 An Assessment of Minority Voting Rights Access

when voter fraud occurs, it is often aggressively prosecuted, even if the person was mistaken that

the person had the right to vote and did not intend to vote illegally.612

Studies also show that because instances of in-person voter fraud account for such a small

percentage of voter fraud, current prohibitions outside of voter ID laws seem to be effectively

preventing it.613 At the Commission’s briefing Peyton McCrary, a historian who was employed at

the Justice Department for almost 40 years, testified that “[t]here is no evidence of which I am

aware that there’s in-person voter fraud at the polls. The only kind of casting ballots that is covered

by the photo ID requirement of these laws exists anywhere in the United States except in a handful

of cases, and I mean literally a handful, in most states throughout the millions of votes cas[t].”614

McCrary does acknowledge that in some statesthere issome degree of election fraud with absentee

ballots.615 However, the majority of voter ID laws do not apply to absentee ballots or any related

absentee ballot reform. McCrary added that there is another kind of election fraud that may be

perpetrated by partisan election officials, and there was one relevant case brought by the DOJ,

United States v. Ike Brown, that dealt with fraud by party officials in Noxubee County,

Mississippi.616 That case did not involve in-person voter fraud, but instead involved possible

fraudulent conduct of election officials.617

Allegations of “Bloated” Voting Rolls and Double Voting

Another type of voting fraud is due to a voter “double voting” which can occur if an individual

casts multiple ballots under different registration records in the same election. Many argue that

“bloated” voting rolls, in which there are more registered voters on the rolls than there should be,

pose a significant risk of double or invalid votes. The Commission received testimony about this

issue from panelists.618 Moreover, John Park, Counsel with Strickland Brockington Lewis L.L.P.,

pointed out that the independent, nonprofit group Government Accountability Institute (GAI)

raised concern about inaccurate voter rolls that contain registrants who are no longer eligible, as

follows:

In 2012, Pew Research found 24 million (one in eight) voter registrations were

either invalid or significantly inaccurate. About 1.8 million deceased voters were

 

612 See Michael Wines, Illegal Voting Gets Woman 8 Years in Prison, and Almost Certain Deportation, N.Y. TIMES 

(Feb. 10, 2017), https://www.nytimes.com/2017/02/10/us/illegal-voting-gets-texas-woman-8-years-in-prison-andcertain-deportation.html; see also BBC News, Texas woman jailed for five years for accidental voter fraud, BBC

NEWS (Mar. 30, 2018), http://www.bbc.com/news/world-us-canada-43597908?SThisFB (discussing former felony 

conviction in Texas).

613 German Lopez, In 2016, In-person Voter Fraud Made up 0.00002 Percent of All Votes in North Carolina, VOX

(Apr. 26, 2017), https://www.vox.com/policy-and-politics/2017/4/26/15424270/voter-fraud-north-carolina. 614 Briefing Transcript, supra note 234, at 63-64 (statement by Peyton McCrary). 615 Id. at 64. 616 Id.; see also United States v. Brown, 561 F.3d 420 (5th Cir. 2009). 617 Briefing Transcript, supra note 234, at 62 (statement by Peyton McCrary). 618 Park, Written Testimony, supra note 567, at 9; see also Briefing Transcript, supra note 234, at 178-79 and 200 

(statement by John Merrill).
Chapter 3: Recent Changes in Voting Laws and Procedures 107

discovered on state voter rolls, and 2.75 million people were registered to vote in

more than one state. These findings alone do not equate to voter fraud, but show a

system rife with error and vulnerability.619

Researchers Sharad Goel and colleagues conducted a study on double voting in the 2012 U.S.

Presidential Election.620 Their findings suggest that double voting is not carried out in a systematic

way, thus not presenting a threat to the integrity of American elections. In an election in which

about 129 million votes were cast, at most 33,000 votes cast were a double vote, which only

equates to 0.02 percent of votes cast.621 The authors stressed this estimate should be considered an

upper bound of the potential for double votes and contrasted it to erroneous estimates of double

voting numbering in the millions.622 Goel et al. conclude their study by stating:

[M]any policies that would reduce the potential for fraud also make it more difficult

forsome legitimate votes to be cast. Likewise, many policies that make voting more

accessible also increase opportunities for fraud. Emphasizing accessibility or

integrity, without consideration for the other, is likely to lead to poor election

administration.

623

A 2016 report by the GAI studied voter registration lists from 21 states and found that it is “highly

likely” that 8,741 votes cast in the 2016 election were duplicate votes cast by voters who voted in

more than one state.624 Hans von Spakovsky, attorney and senior legal fellow in The Heritage

Foundation’s Edwin Meese III Center for Legal and Judicial Studies, has written about this report

and stated that the GAI extrapolated the data from 21 states to all 50 states, used a conservative

name-matching system, and found with “high reliability” that there are “45,000 duplicate votes.”625

However, the Heritage Foundation database currently indicates that there have been 84 instances

of duplicate voting that were confirmed through a government adjudicative process in the last two

years.626 Regarding the Heritage Foundation database and conclusions, the Brennan Center

 

619 Park, Written Testimony, supra note 567, at 9; see also Government Accountability Institute, America the 

Vulnerable: The Problem of Duplicate Voting, GAI 4-5 (2017), http://www.g-a-i.org/wpcontent/uploads/2017/07/Voter-Fraud-Final-with-Appendix-1.pdf (citing The PEW Center on the States, Inaccurate, 

Costly and Inefficient: Evidence That America’s Voter Registration System Needs an Upgrade, PEW (Feb. 2012), 

http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2012/pewupgradingvoterregistrationpdf.pdf). 620 Sharad Goel, Marc Meredith, Michael Morse & David Rothschild, One Person, One Vote: Estimating the 

Prevalence of Double Voting in U.S. Presidential Elections (Oct. 24, 2017), working paper, 

https://www.dropbox.com/s/bbzgpeo1rh1s7dy/ OnePersonOneVote.pdf?dl=0 [hereinafter Goel et al., One Person, 

One Vote]. 621 Id. at 29. 622 Id. at 27-28. 623 Id. at 29. 624 Park, Written Testimony, supra note 567, at 9 (citing GAI, The Problem of Duplicate Voting, supra note 619). 625 Hans A. von Spakovsky, New Report Exposes Thousands of Illegal Votes in 2016 Election, THE HERITAGE 

FOUNDATION (July 28, 2017), https://www.heritage.org/election-integrity/commentary/new-report-exposesthousands-illegal-votes-2016-election. 626 Heritage, Voter Fraud Cases, supra note 470. 
108 An Assessment of Minority Voting Rights Access

commented that their analyses of double voting cases show that “clerical errors and confusion are

more likely to be the culprit than intent to defraud the election system.”627

There is no evidence to support allegations that double registration leads to double voting.628 Many

voters are registered in two states because they moved without filing a change of address form

with the U.S. Postal Service, which may be used by states to update their voter rolls under the

National Voter Registration Act (NVRA).629 A jurisdiction’s failure to perform voter list

maintenance and fulfill its duties under the NVRA to remove voters who have moved state-tostate, after notice has been attempted to verify such a move,630 also does not mean that the voter

has voted in both states.631 Additionally, because voters of color and other low-income voters move

more often than white voters do, aggressive removal programs may lead to disparate impact

because their names are thus more likely to appear as duplicate registrations if they fail to cancel

their previous voter registration at their old address. November 2016 U.S. Census data reflected

that:

The highest mover rates by race were for the black or African-American alone

population (13.8 percent) and the Asian alone population (13.4 percent). These two

mover rates were not statistically different. The white alone population moved at a

rate of 10.3 percent. The Hispanic or Latino population (12.6 percent) were more

mobile than the non-Hispanic white population (9.8 percent).632

However, allegations of persons being registered to vote in two states are often used to justify

aggressive voter list maintenance to remove voters from the rolls. Aggressive removal programs

are also sometimes justified by the simple fact that there are more voters on the rolls than the most

 

627 Rudy Mehrbani, Heritage Fraud Database: An Assessment, THE BRENNAN CENT. FOR JUSTICE 5 (Sept. 8, 2017), 

https://www.brennancenter.org/sites/default/files/publications/HeritageAnalysis_Final.pdf [hereinafter Mehrbani, 

Heritage Fraud Database: An Assessment]. 628 Id.; see also Sam Levine, Trump Claims Without Evidence that Millions of People Are Voting Illegally in 

California, HUFFINGTON POST (Apr. 5, 2018), https://www.huffingtonpost.com/entry/trump-california-voterfraud_us_5ac68372e4b0337ad1e5eb06 (noting that the White House pointed to a study that showed there were 

nearly 3 million people registered in more than one state to support the President’s claim that millions voted 

illegally). 

629 See 52 U.S.C. § 20507(c)(1) (stating that notice to voter to confirm change of address before removal may be 

sent after information change-of address information supplied to Postal Service is received). 630 52 U.S.C. § 20507(a)(4) requires that “each State shall . . . conduct a general program that makes a reasonable 

effort to remove the names of ineligible voters from the official lists of eligible voters by reason of—the death of the 

registrant; or (B) a change in the residence of the registrant [after appropriate notice is sent to the voter’s address to 

confirm is either confirmed or not returned, and after 2 federal election cycles].”

631 See e.g., Kurtis Lee, President Trump says it’s illegal to be registered to vote in two states—but he’s wrong, L.A.

TIMES (Feb. 1, 2017), http://www.latimes.com/nation/la-na-voters-registered-multiple-states-20170127-story.html. 632 See Press Release, U.S. Census Bureau, Americans Moving at Historically Low Rates, U.S. CENSUS BUREAU

(Nov. 16, 2016), https://www.census.gov/newsroom/press-releases/2016/cb16-189.html (including racial data on 

frequency of moving as per Geographical Mobility: 2015 to 2016, a collection of national- and regional-level tables 

from the Current Population Survey Annual Social and Economic Supplement).
Chapter 3: Recent Changes in Voting Laws and Procedures 109

recent Census data indicate as the number of citizens of voting age in the jurisdiction.633 This could

mean that voters who have moved, died, are ineligible or otherwise become ineligible (through

criminal convictions in certain states) are wrongfully on the voting rolls.634

The Supreme Court has held that “bloated” voting rolls, in conjunction with interest in protecting

against potential voting fraud and safeguarding voter confidence in elections, may be sufficient

justification for photo ID laws. In Crawford, the Court held that: “Even though Indiana’s own

negligence may have contributed to the serious inflation of its registration lists when SEA 483 [the

state’s photo ID law] was enacted, the fact of inflated voter rolls does provide a neutral and

nondiscriminatory reason supporting the State’s decision to require photo identification.”635 The

Court further explained that the combination of Indiana’s interests were “both neutral and

sufficiently strong” to survive a facial invalidation against its photo ID law, SEA 483.636

Regarding list maintenance, the Public Interest Legal Foundation (PILF), headed by J. Christian

Adams, recently sent letters to 248 jurisdictions stating that their voter registration lists contained

too many voters; PILF has brought several lawsuits alleging that the high number of voters on the

rolls indicates that there are ineligible voters on the lists.637 However, some of PILF’s and their

allies’ lawsuits have been unsuccessful, and recently a federal judge in Florida found in her ruling

that the claims were “misleading,” 638 because the Census data they relied on was outdated and the

county that they sued was growing in population.639

In order to address “bloated” voter rolls, states have coordinated with one another to facilitate

keeping accurate voter rolls. Two existing systems have been developed: Interstate Voter

Registration Crosscheck Program (Crosscheck) and Electronic Registration Information Center

(ERIC).

Crosscheck

Crosscheck can be problematic due to high error rates.640 It operates by including data from

registered voters in all the participating states, then comparing their first names, last names, and

 

633 See Public Interest Legal Foundation, Sample October 2017 “NVRA Violation” Letter 2(f), PILF (Sept. 15, 

2017), https://publicinterestlegal.org/files/Sample-2017-notice.pdf [hereinafter PILF, Sample NVRA Violation]. 634 Id. 635 Crawford, 553 U.S. at 196-97. 636 Id. at 204. 637 See PILF, Sample NVRA Violation, supra note 633. 638 Order, Bellitto v. Snipes, No. 16-CV-61474 (S.D. Fla. 2018), https://publicinterestlegal.org/files/Broward-TrialOrder.pdf, at 19-20 (due to using American Community Survey data that do not provide an accurate comparison to 

registered voters, “the Court finds that the registration rates presented by ACRU are inaccurate. ACRU’s argument 

that Broward County’s registration rates are unreasonably high is, therefore, unsupported by any credible evidence 

and necessarily fails to support ACRU’s contention that [Broward County Supervisor of Elections] Snipes failed to 

comply with the NVRA’s list maintenance requirements.”). 639 Id. 640 See Discussion and Sources cited at notes 643-44 and 652-56, infra.
110 An Assessment of Minority Voting Rights Access

dates of birth, to generate lists of voters who may be registered in more than one state.641 Currently,

27 states participate in the Crosscheck system created by Kansas. Here is a map of states

participating in Crosscheck, with the states participating in Crosscheck colored red, and the states

not participating in Crosscheck colored green:

Figure 6: Participation in the Interstate Crosscheck System

Source: Health of State of Democracies: Participation in the Crosscheck System

While allegations of double voting are used to justify aggressive purges of purported “bloated”

voter rolls and the use of Crosscheck,

642 the Crosscheck 2014 Participation Guide states that:

“Experience in the crosscheck program indicates that a significant number of apparent double

votes are false positives and not double votes.”643 The Crosscheck Participation Guide therefore

recommends using “other information” such as middle name,suffix, or the last four Social Security

 

641 See, e.g., Interstate Voter Registration Crosscheck, 2014 Participation Guide, 4 (Dec. 2014), 

https://wei.sos.wa.gov/agency/osos/en/press_and_research/weekly/Documents/Participation%20Guide%20with%20

Comments.pdf (“An apparent duplicate registration is produced when first names, last names and dates of birth in 

two records match exactly. Other information such as middle name, suffix and SSN4 should be used to confirm 

whether the two records are matches. It may be necessary to contact another jurisdiction to obtain more information, 

such as signatures.”) [hereinafter Crosscheck, 2014 Participation Guide]. 642 See, e.g., Goel et al., One Person, One Vote, supra note 620, at 5 (the authors note that “[l]ittle existing election 

forensics work examines the issue of double voting, despite it being one of the most commonly asserted forms of 

voter fraud and a factor in the purging of voter rolls.”). 643 Crosscheck, 2014 Participation Guide, supra note 641, at 4.
Chapter 3: Recent Changes in Voting Laws and Procedures 111

Number digits to confirm whether names that are flagged as apparent duplicate records are actually

duplicate records before cancelling the record or taking other action.644

Security of voter data is another issue. As of February 2018, “in light of recent insecurity

revelations,” Alaska, Florida, Kentucky, Massachusetts, New York, Oregon, Pennsylvania, and

Washington State had left the program.645 At the Commission’s 2018 Indiana SAC briefing on

voting rights, testimony included criticisms of the state’s removal of voters from the rolls, without

notification or permission, using the Crosscheck program.646 Indiana was sued by the local

NAACP, League of Women Voters, and Common Cause about its state law permitting the use of

Crosscheck for voter list maintenance.647 On June 8, 2018, a federal judge temporarily enjoined

Indiana from using Crosscheck, due to likely violations of federal law provisions that protect

eligible voters from being removed through systems that are not reasonable, uniform, and

nondiscriminatory.648

At the Commission’s briefing, John Park testified that he believes that Crosscheck is the solution

to “bloated” voting rolls and protecting against double votes. His written testimony stated:

 

644 Id. 645 Russ Feingold, The Crosscheck Database is a Security Threat, THE NATION (Feb. 22, 2018), 

https://www.thenation.com/article/the-crosscheck-voter-database-is-a-security-threat/ (noting that the voters’ data 

are unencrypted and therefore vulnerable to being hacked). 

646 See Appendix D for a summary of Indiana State Advisory Advisory Committee Briefing; Complaint, Indiana 

State Conference of Nat’l Ass’n for Advancement of Colored People v. Lawson, No. 1:17-CV-3936 (S.D. Ind. 2018), 

https://www.brennancenter.org/sites/default/files/legal-work/Indiana_NAACP_v._Lawson_Complaint.pdf; Indiana 

State Conference of Nat’l Ass’n for Advancement of Colored People v. Lawson, 2018 WL 2752564, No. 117-CV02897-TWP-MPB (S.D. Ind. June 8, 2018) (granting plaintiffs’ motion for preliminary injunction), 

https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12017cv2897-63. 647 See Lawson, 2018 WL 2752564, at *14 (granting plaintiffs’ motion for preliminary injunction) (“Plaintiffs argue 

that the Crosscheck system has inherent flaws and limitations, which make it an unreliable source on which to base 

voter registration cancellations without further investigation. Plaintiff’s offer evidence that Crosscheck produces 

many false positives because many people have a matching first name, last name, and birthdate, but in reality, they 

are not the same person. Crosscheck and the state’s voter registration system are unreliable because they do not 

collect or disseminate the actual voter registration documents, thereby depriving states of the opportunity to verify 

the conclusory data with the underlying documents. The system also has limited data and functionality, which 

reduces its reliability for county officials to cancel voter registrations based solely on Crosscheck and the data 

uploaded into the statewide voter registration system. Furthermore, the data definitions are not consistently used or 

applied by each of the participating states, and thus, some data may be missing or may be used in disparate ways by 

the different states. This is especially true of the dates of registration. Plaintiffs point out that, because of these 

inherent limitations with Crosscheck, historically, it has been used only as a starting point in Indiana’s voter 

cancellation process. Crosscheck will now be used to determine whether a duplicate voter registration exists and

then cancellation of the Indiana registration will promptly follow.”). 648 Id. at *23 (“Because SEA 442 removes the NVRA’s procedural safeguard required in particular cases of 

providing for notice and a waiting period, the Court determines that Plaintiffs have a high likelihood of success on 

the merits of their claim. The Court briefly notes that it appears the implementation of SEA 442 will likely fail to be 

uniform based on the evidence that King and Nussmeyer provide differing guidance to county officials on how to 

determine whether a particular registered voter is a duplicate registered voter in a different state. This is also true 

based on the evidence that county officials are left to use wide discretion in how they determine a duplicate 

registered voter, and they have used that discretion in very divergent ways.”).
112 An Assessment of Minority Voting Rights Access

The Interstate Voter Registration Crosscheck program can identify potentially

duplicative entries on voter rolls in different states. In a letter to a local Idaho

newspaper, Idaho’s Secretary of State reported that 28,113 potential duplicates

were found in 2016, and that approximately 9,000 of them were from a single

county.649

Park also stated that: “The Department of Justice should put its resources to use in enforcing the

statutory list maintenance obligations of the States. There is no good reason for a county . . . to

have more registered voters than eligible citizens. Likewise, states should participate in the

Interstate Voter Registration Crosscheck program.”650 However, Ezra Rosenberg, Co-Director of

the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, expressed

concerns about Crosscheck targeting minority voters, and cited studies showing that Crosscheck

is highly inaccurate.651

As discussed, Crosscheck uses first name, last name, and date of birth to compare the voting rolls,

and provides states with lists of voters who may be registered in two states. However, comparing

only the three fields of first name, last name, and date of birth leads to numerous errors.652

Statistical research analysis demonstrates that among a list of only 23 people, there is a more than

50 percent chance that at least two will share the same birthday.653 In another study, Professors

Levitt and McDonald also found a high prevalence of common names such as William Smith and

María Rodríguez showing up hundreds of times on state election rolls.654

A recent study by scholars from Stanford, University of Pennsylvania, Harvard, Yale, and

Microsoft found that there were three million cases in a national voter file of 2012 in which the

voters shared a common first name, last name, and date of birth.655 More granular data (such as

last four digits of social security number and other data available to election officials) show that

fewer than 0.02 percent could have been double votes; but Crosscheck’s recommended strategy of

purging the earlier registration record when a pair of registrations is found with match of first

 

649 Park, Written Testimony, supra note 567, at 4-5 (citing Lawrence Denney, Idaho Secretary of State, Letter to the 

Editor, The True Facts of the Crosscheck Program, BONNER COUNTY DAILY BEE (Nov. 16, 2017),

http://www.bonnercountydailybee.com/letters_to_the_editor/20171116/the_true_facts_of_the_crosscheck_program. 650 Park, Written Testimony, supra note 567, at 7. 651 See Ezra Rosenberg, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 9-10, 10 n.31

[hereinafter Rosenberg, Written Testimony]. Rosenberg pointed to the Goel et al. study, stating that “researchers 

recently found that using Crosscheck to purge the voter rolls in one state would ‘impede 200 legal votes for ‘every 

double vote prevented.’” Id. (quoting Goel et al., One Person, One Vote, supra note 620, at 33). 652 Goel et al., One Person, One Vote, supra note 620. 653 Michael McDonald & Justin Levitt, Seeing Double Voting: An Extension of the Birthday Problem, 7 ELECTION L.

J. 111, 112 (2008), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=997888. 654 Id. at 120. McDonald and Levitt examined voter files from New Jersey’s 2014 elections. In those elections, the 

most common names—William Smith, Maria Rodriguez, etc.—showed up hundreds of times, reflecting their 

prevalence in the general population. 

655 Id.; Goel et al., One Person, One Vote, supra note 620, at 1.
Chapter 3: Recent Changes in Voting Laws and Procedures 113

name, last name, date of birth, would still “eliminate more than 300 registrations used to cast a

seemingly legitimate vote for every double vote prevented.”656

New Hampshire state election officials recently reported that of the 94,000 voters that had the

same first name, last name, and date of birth as a voter in a different state and would thus be flagged

by Crosscheck, all but 142 were confirmed as different people.657 Associate Attorney General of

New Hampshire Anne Edwards clarified that “those unverified voters do not indicate that those

individuals cast an unlawful vote” and supported the conclusion that the number of possible invalid

or duplicate votes in the 2016 election was “statistically miniscule.”658

Furthermore, Crosscheck’s system of name-matching may disparately impact voters of color. A

report by the Center for American Progress on the Health of State Democracies summarized

studies finding that:

50 percent of people of color share a common surname, while only 30 percent of

white people do—this leads to a greater number of flagged potential double voters,

and thus a significant overrepresentation of minority voters on the Crosscheck list:

While white voter names are underrepresented by 8 percent, African American

voters are overrepresented by 45 percent; Hispanic voters are overrepresented by

24 percent; and Asian voters are overrepresented by 31 percent.659

In Virginia 2012, a voter claimed he was purged because the Crosscheck system said he had moved

from the state, when in fact he had recently moved from South Carolina to Virginia.660 The

Commonwealth removed 40,000 voters from the rolls prior to Election Day on the basis of

information from Crosscheck.

661 One local registrar refused to purge any voters as was requested

by Virginia because he found that nearly 10 percent of the names given to him for removal from

the voter rolls were eligible voters.662

Electronic Registration Information Center (ERIC)

Another system is the Electronic Registration Information Center (ERIC) system; evidence

indicates that ERIC could reduce bloated voter rolls while not removing the same number of

 

656 Goel et al., One Person, One Vote, supra note 620, at 3. 657 John DiSato, Exhaustive Investigation Reveals Little Evidence of Possible Voter Fraud in NH, WMUR9 (May 29, 

2018), http://www.wmur.com/article/exhaustive-investigation-reveals-little-evidence-of-possible-voter-fraud-innh/20955267?wpmm=1&wpisrc=nl_daily202. 658 Id. 659 Lauren Harmon, Charles Posner, Michele L. Jawando & Matt Dhaiti, The Health of State Democracies, 25 THE

CENTER FOR AM. PROGRESS ACTION FUND (July 7, 2015), 

https://www.americanprogressaction.org/issues/courts/reports/2015/07/07/116570/the-health-of-state-democracies/. 660 Jonathan Brater, Virginia Offers Lessons for Voter List Maintenance, THE BRENNAN CENT. FOR JUSTICE (Nov. 

25, 2013), https://www.brennancenter.org/analysis/virginia-offers-lessons-voter-list-maintenance. 661 Dartunorro Clark, This System Catches Voter Fraud and the Wrath of Critics, NBC NEWS (Aug. 12, 2017) 

https://www.nbcnews.com/politics/white-house/system-catches-vote-fraud-wrath-critics-n790471. 662 Id. 
114 An Assessment of Minority Voting Rights Access

legitimate voters as with Crosscheck. According to the 2013 bipartisan Presidential Commission

on Election Administration (PCEA), “States that participate in ERIC are able to check their voter

registration lists against data gathered from other states and several nationally available lists, such

as those maintained by the U.S. Postal Service or the Social Security Administration.”663 ERIC

provides information to states about which voters may have died, moved, or changed their

names—and it provides states with information about which eligible voters might not be

registered, so that they can reach out to them and register them.664 ERIC may have greater privacy

protections than Crosscheck.665 In contrast to Crosscheck’s matching system of name and date of

birth that produces matches that election officials then have to verify, ERIC matches more data

points, including the last four digits of social security numbers, mailing address, and other data

already linked through state motor vehicle agencies and the federal databases mentioned above.666

Here are the states that are currently participating in ERIC as of the date of writing of this report:

Table 5: States Participating in ERIC

Alaska* Delaware Missouri* Pennsylvania* Washington D.C.

Alabama Illinois* Nevada* Rhode Island West Virginia*

Arizona* Louisiana* New Mexico Utah Wisconsin

Colorado* Maryland* Ohio* Virginia*

Connecticut Minnesota Oregon Washington667

*States marked with an asterisk also participate in Crosscheck.668

 

663 Presidential Commission on Election Administration, The American Voting Experience: Report and 

Recommendations of the Presidential Commission on Election Administration, PCEA 29 (Jan. 2014), 

https://law.stanford.edu/wpcontent/uploads/sites/default/files/publication/466754/doc/slspublic/Amer%20Voting%20Experfinal%20draft%2001-04-14-1.pdf (co-chaired by Robert F. Bauer and Benjamin L. Ginsberg) [hereinafter PCEA 

Report].

664 Id. 665 Electronic Registration Information Center, Technology and Security Overview, ERIC (Apr. 3, 2018), 

http://www.ericstates.org/images/documents/ERIC_Tech_and_Security_Brief_v3.0.pdf. Private and sensitive 

information such as date of birth (“DOB”) and the last four digits of a Social Security number (“SSN”) are 

“anonymized” at the source—the state—and then transmitted to the ERIC data center where the data are 

anonymized again upon receipt. 

666 Reid Wilson, Here’s How to Clean Up Messy Voter Rolls, WASH. POST (Nov. 3, 2013) 

http://www.washingtonpost.com/blogs/govbeat/wp/2013/11/03/heres-how-to-clean-up-messy-voter-rolls/ (quoting 

David Becker, Pew’s director of election initiatives: “‘It’s impossible for [states], based on only a name and birth 

date, to keep their lists up to date and identify when some has died, for example.’”); see also Shane Hamlin & Erika 

Haas, Presentation from the Pew Registration Summit, ERIC 30-37 (July 2014), 

http://www.ericstates.org/images/documents/ERIC_July_2013_VR_Conference_Notes.pdf (last accessed May 1, 

2018). 667 ELECTRONIC REGISTRATION INFORMATION CENTER, We’re Growing!, ERIC, http://www.ericstates.org/ (last 

accessed June 4, 2018) (data are current as of January 17, 2018). 668 See Figure 6, supra.
Chapter 3: Recent Changes in Voting Laws and Procedures 115

Allegations of Noncitizen Voting

The belief that noncitizens are voting in large numbers in elections and skewing election results is

an often-cited concern about voter fraud.

669 This concern arose through oral and written testimony

before the Commission’s national briefing.670 However at the same briefing, when Alabama’s

Secretary of State John Merrill was asked if he was aware of a “rash of noncitizen voting,” he

answered: “No, I am not.”671 The News21 study of all known allegations of voter fraud showed

 

669 Then-President Elect Trump stated on November 27, 2016 that three million noncitizens voted in the latest 

Presidential Election. Donald J. Trump (@realDonaldTrump), Twitter (Nov. 27, 2016, 12:30 PM), 

https://twitter.com/realDonaldTrump/status/802972944532209664?ref_src=twsrc%5Etfw. Experts immediately 

noted that these allegations were patently false; however, they became the basis for the Pence-Kobach Presidential 

Commission on Election Integrity, which was charged with reviewing allegations of improper and fraudulent voting, 

improper voter registration, and voter suppression. Exec. Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017). 

Hans A. von Spakovsky and Christian Adams testified at the Commission’s briefing and were part of the 

Presidential Commission on Election Integrity, but did not testify about it; see also von Spakovsky, Written 

Testimony, supra note 325; J. Christian Adams, President and General Counsel, Public Interest Legal Foundation, 

Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 [hereinafter Adams, Written Testimony]. 

As various panelists noted, the Presidential Commission on Election Integrity was beleaguered with litigation 

challenging whether its mission was racially discriminatory and in violation of the VRA, whether it had the right to 

collect voter data from the states, and whether it was in compliance with the Administrative Procedures Act and 

other federal rules, including federal transparency rules. See Briefing Transcript, supra note 234, at 220-22 

(statement by Dale Ho), Briefing Transcript, supra note 234, at 82 (statement by Ezra Rosenberg). When the 

Presidential Commission on Election Integrity began asking for data, forty-five states and the District of Columbia 

stated they would decline to release any data or by only providing limited information to the panel. Nineteen states 

refused to comply due to privacy concerns and claims that the commission was politically motivated and twenty-six 

states stated that they would only hand over public data. See Dartunorro Clark, Forty-five States Refuse to Give 

Voter Data to Trump Panel, NBC NEWS (July 6, 2017), https://www.nbcnews.com/politics/white-house/forty-fourstates-refuse-give-voter-data-trump-panel-n779841. Further, the Department of Homeland Security (DHS) stated 

that they would not compare the Presidential Commission’s data with federal immigration records, and they 

therefore refused to accept any of the Presidential Commission’s data to compare with their federal immigration 

records, after which the White House stated it would be destroying the Presidential Commission’s data; see also

Spencer S. Hsu, White House Says It Will Destroy Trump Voter Panel Data, Send No Records to DHS, WASH. POST 

(Jan. 10, 2017), https://www.washingtonpost.com/local/public-safety/white-house-says-it-will-destroy-trump-voterpanel-data-send-no-records-to-dhs/2018/01/10/e70704a8-f616-11e7-b34ab85626af34ef_story.html?utm_term=.d1eb25f95c8d. On Jan. 3, 2018, President Trump disbanded the Presidential 

Commission; see also Michael Tackett & Michael Wines, Trump Disbands Commission on Voter Fraud, N.Y.

TIMES (Jan. 3, 2018) ,https://www.nytimes.com/2018/01/03/us/politics/trump-voter-fraud-commission.html. On Jan. 

9, 2018, it told a federal court that it would not be releasing any data nor any findings whatsoever. See Memorandum 

in Support of Defendant’s Motion to Reconsider, Dunlap v. Presidential Comm’n. on Election Integrity, No. 1:17-

CV-02361-CKK, 1-2 (D.D.C., Jan. 9, 2018), https://www.politico.com/f/?id=00000160-dde0-da3c-a371-

ddfebfa60000. (“[S]tate voter data will not be transferred to or accessed or utilized by, DHS or any other agency, 

except to the National Archives and Records Administration (‘NARA’), pursuant to federal law, if the records are 

not otherwise destroyed. Pending resolution of outstanding litigation involving the Commission, and pending 

consultation with NARA, the White House intends to destroy all state voter data. Non-public Commission records 

will continue to be maintained as Presidential Records, and they will not be transferred to the DHS or another 

agency, except to NARA, if required, in accordance with federal law.”). 

670 Briefing Transcript, supra note 234, at 153-54 (statement by Cleta Mitchell); see also Briefing Transcript, supra 

note 234, at 155 (statement by John Merrill); see also Park, Written Testimony, supra note 567, at 9. 671 Briefing Transcript, supra note 234, at 156 (statement by John Merrill).
116 An Assessment of Minority Voting Rights Access

that of the 16 allegations regarding all types of voter fraud in Alabama between 2000 and 2012,

only one had to do with noncitizen registration and/or voting.672 The Heritage Foundation reported

the same case as one of 16 cases of “Proven Voter Fraud” it identified in Alabama between 2000

and 2017.673

A Public Interest Legal Foundation report stated that 5,556 voters were removed from Virginia’s

rolls between 2011 and May 2017 because they were noncitizens, and one third of those removed

voted illegally.674 One of the witnesses who testified before the Commission, J. Christian Adams,

is quoted in the report and its press release.675 Other groups have countered that PILF’s allegations

are exaggerated and based on false methodology; these groups have successfully litigated against

related voter purges that were advocated by PILF and its allies in Florida.

676 At the Commission’s

briefing, the ACLU’s Dale Ho testified that while Florida was purging alleged noncitizens,

“thousands of U.S. citizens were wrongly designated as noncitizens and threatened with removal

from the rolls . . . An analysis conducted by the Miami Herald indicated that 87 percent of those

identified by the state as noncitizens on the [voting] rolls were minorities.”677

The News21 study discussed above also identified few incidents of noncitizen voting in their

national database of all voter fraud allegations from 2000-2012. Their study reviewing all public

databases found that of 2,068 public allegations of voter fraud between 2000 and 2012, there were

56 allegations of noncitizen voting; of these, 16 were dismissed, not charged or acquitted; and 40

were convicted, pleaded, subject to consent order, or had unknown results.678 During the 12 years

studied, there were 488,090,031 ballots cast in presidential elections alone.679 Based on allegations

alone, noncitizen voting represented 2.7 percent of all allegations of voter fraud from 2000 to 2012,

and 0.000011 percent of all ballots cast.680 The Heritage Foundation database documented an

 

672 See NEWS21, Election Fraud, supra note 582 (noting that 75 percent of cases involved absentee voter fraud). 673 See Heritage, Voter Fraud Cases, supra note 470 (see information on Ala.). 674 Public Interest Legal Foundation, Report: 5500+ Noncitizens Discovered on Voter Rolls in Virginia, PILF (May 

30, 2017), https://publicinterestlegal.org/blog/report-5500-noncitizens-discovered-voter-rolls-virginia/. 675 Id. 676 See, e.g., Bellitto v. Snipes, No. 16-CV-61474 (S.D. Fla. 2018), https://publicinterestlegal.org/files/BrowardTrial-Order.pdf. 677 Briefing Transcript, supra note 234, at 171 (statement by Dale Ho). See also Discussion of Arcia v. Detzner and 

Sources cited at notes 730 and 866-70, infra (stipulated settlement of Section 2 claim in 2012 Florida purge of 

alleged noncitizens).

678 In August 2012, News21 released a Carnegie-Knight investigative report about voter fraud in the U.S, finding 

only 10 cases of alleged, in-person voter impersonation since 2000. NEWS21, Election Fraud, supra note 582 (noting 

that there were 2,068 allegations of voter fraud between 2000 and 2012, and only 56 involved allegations of 

noncitizens casting an ineligible vote). 679 There were 105,396,630 ballots cast in the 2000 Presidential Election; 122,295,345 in 2004; 131,313,815 in 

2008; and 129,084,241 in 2012. CQ Press Voting and Elections Collection (accessed by Commission Staff) 

http://library.cqpress.com/elections/index.php (last accessed Aug. 6, 2018). This totals 488,090,031 ballots cast in 

presidential elections alone in the time period studied by News21.

680 Id. (Commission Staff calculations of percentages).
Chapter 3: Recent Changes in Voting Laws and Procedures 117

alleged 41 cases of noncitizen voting since 2000,681 representing an even smaller number of ballots

allegedly cast by noncitizens in American elections.

Current Legal Protections Against Noncitizen Voting

There are already strong legal deterrents against noncitizens voting in federal elections. These

include that noncitizen registration682 and voting683 are subject to federal criminal penalties, as

well as deportation.684 Most states also criminalize noncitizen voting.685 The U.S. Constitution

requires persons to be 18 years of age or older and citizens in order to vote in federal elections.686

The NVRA requires that any person registering to vote must attest under penalty of perjury that

the person is a United States citizen, over 18, and otherwise eligible to vote.687 During the NVRA

 

681 See Mehrbani, Heritage Fraud Database: An Assessment, supra note 627, at 2. 682 18 U.S.C. § 1015(f) (“Whoever knowingly makes any false statement or claim that he is a citizen of the United 

States in order to register to vote or to vote in any Federal, State, or local election (including an initiative, recall, or 

referendum)—[s]hall be fined under this title or imprisoned not more than five years, or both”) (emphasis added). 683 18 U.S.C. § 611 (enacted as part of 1996 immigration law reforms, making it a felony punishable by a fine and/or

one year in prison, for noncitizens to vote in “any election held solely or in part for the purpose of electing a 

candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the 

House of Representatives, Delegate from the District of Columbia, or Resident Commissioner”). 684 See 8 U.S.C. § 1182(a)(6)(C) (falsely claiming U.S. citizenship for any purpose under Federal or State law 

renders person inadmissible); 8 U.S.C. § 1227(a)(1)(A) (persons who are inadmissible cannot be legally admitted 

and are subject to deportation); 8 U.S.C. § 1182(a)(10)(D)(i) (any noncitizen “who has voted in violation of any 

Federal, State, or local constitutional provision, statute, ordinance, or regulation” is also inadmissible); 8 U.S.C. § 

1182(a)(6)(C)(iii) (while there are waivers for other offenses, there is no waiver for misrepresentation of U.S. 

citizenship or for noncitizen voting); 8 U.S.C. § 1227(a)(6) (noncitizen voting is also an affirmatively removable 

(deportable) offense). 685 In Texas, a noncitizen who voted was recently sentenced to eight years in prison. See Claire Z. Cardona, Grand 

Prairie Woman Illegally Voted for the Man Responsible for Prosecuting Her, DALLAS NEWS (Feb. 10, 2017), 

http://www.dallasnews.com/news/tarrant-county/2017/02/08grand-prairie-woman-found-guilty-illegal-voting. 686 U.S. CONST., amends. XV § 1, XIX, XXVI § 1. 687 See 52 U.S.C. § 20505(a) (requiring that States use the federal registration form, which includes an affidavit of 

citizenship made under penalty of perjury). Also, under the NVRA, every agency that registers voters through 

applications for drivers’ licenses, social services applications, and/or through paper forms, must “enable State 

election officials to assess the eligibility of the applicant,” and “shall include a statement that (i) states each 

eligibility requirement (including citizenship); (ii) contains an attestation that the applicant meets each such 

requirement; and (iii) requires the signature of the applicant under penalty of perjury.” 52 U.S.C. § 

20504(c)(2)(C)(i)-(iii). See also 52 U.S.C. § 20508(b)(2)(A)-(C) (requiring attestation of citizenship under penalty 

of perjury on mail voter registration forms). The NVRA also requires that any other state-designated voter 

registration agencies “shall” distribute the same mail voter registration form, and spells out that the form must 

specify each eligibility requirement, including citizenship, and contains an attestation that the applicant meets such 

requirement, which the applicant signs under penalty of perjury. 52 U.S.C. § 20506 (a)(6)(A)(i)(I)-(III). According 

to the DOJ: “The requirements of the NVRA apply to 44 States and the District of Columbia. Six States (Idaho, 

Minnesota, New Hampshire, North Dakota, Wisconsin, and Wyoming are exempt from the NVRA because, on and 

after August 1, 1994, they either had no voter-registration requirements or had election-day voter registration at 

polling places with respect to elections for federal office. Likewise, the territories are not covered by the NVRA 

(Puerto Rico, Guam, Virgin Islands, American Samoa). While the NVRA applies to elections for federal office, 

States have extended its procedures to all elections.” U.S. Dep’t of Justice, The National Voter Registration Act of 

1993, https://www.justice.gov/crt/national-voter-registration-act-1993-nvra (last accessed Aug. 3, 2018). 
118 An Assessment of Minority Voting Rights Access

debates, Congress deliberated about—but ultimately rejected—language allowing states to require

“presentation of documentary evidence of the citizenship of an applicant for voter registration.”688

It determined that this was not necessary and could interfere with one of the main purposes of the

Act, e.g., to expand voter registration in a nation with very low voter participation rates.

689

Any time a U.S. citizen moves to a new jurisdiction, in order to exercise the right to vote, the

citizen must register to vote in that jurisdiction, and the citizen will be considered a “first-time

registrant” under HAVA. This means that thousands of local jurisdictions will require voter

registration for any new residents who are eligible to vote.690 The NVRA and HAVA already

require that registrants attest to their citizenship and provide some form of identification, but new

documentary proof of citizenship laws make the requirements stricter by requiring a birth

certificate, passport, or naturalization or citizenship papers.691

As discussed above, evidence of noncitizen voting is sparse. Studies and litigation records indicate

that there are few documented incidents of noncitizen voting.692 This is not to say there are zero

incidents of noncitizen voting, but widespread data show that noncitizen voting occurs extremely

rarely in U.S. elections.693 In 2016, in a survey of election officials in 42 jurisdictions representing

places with high numbers of noncitizens, “improper noncitizen votes accounted for 0.0001 percent

 

688 See H.R. REP. NO. 103-66, at 23 (1993). 689 Id. 690 According to the U.S. Census, in 2010, there were 3,143 counties and county-equivalents (organized boroughs, 

census areas, independent cities) in the United States. See U.S. Census Bureau, 2010 Census Geographic Entity 

Tallies by State and Type, U.S. CENSUS BUREAU https://www.census.gov/geo/maps-data/data/tallies/all_tallies.html

(last accessed Aug. 2, 2018). Because residency is required to vote in local elections, counties and county 

equivalents typically process voter registration applications. See, e.g., 52 U.S.C. § 10502 (outlining residency 

requirements for voting). Each of the 50 states (except North Dakota, where voter registration is not required) and 

the District of Columbia also administer elections and may enact their own voter registration rules, as long as they 

do not conflict with federal law. See, e.g., Arizona v. Inter Tribal Council of Arizona, 570 U.S. 1, 13-15, 20 (2013) 

(discussing pre-emption; holding that NVRA pre-empts contravening state law). 691 See Discussion and Sources cited at notes 732-96, infra. 692 See, e.g., Joseph Tanfini, No, There Is No Evidence That Thousands of Noncitizens Are Illegally Voting and 

Swinging Elections, L.A. TIMES (Oct. 25, 2016), http://www.latimes.com/politics/la-na-pol-noncitizen-voters20161025-snap-story.html (citing studies and evidence disproving cases alleging widespread noncitizen voting); see 

also Wendy Weiser & Douglas Keith, The Actual True and Provable Facts About Non-citizen Voting, TIME (Feb. 

13, 2017), http://time.com/4669899/illegal-citizens-voting-trump/ (noting that the National Association of 

Secretaries of State and experts agree that Trump’s allegations are false; “Multiple nationwide studies have 

uncovered only a handful of incidents of non-citizens voting.”); see also The Brennan Center for Justice, Noncitizen 

Voting is Vanishingly Rare, THE BRENNAN CENT. FOR JUSTICE (Jan. 25, 2017),

http://www.brennancenter.org/analysis/analysis-noncitizen-voting-vanishingly-rare (detailing multiple studies and 

voter fraud prosecution records). 

693 Noncitizens may vote in some local elections, if their ballots are separate and the local jurisdictions permits it 

regarding strictly local issues. See, e.g., John Haltiwanger, Immigrants Are Getting the Right to Vote in Cities Across 

America, NEWSWEEK (Sept. 13, 2017), http://www.newsweek.com/immigrants-are-getting-right-vote-cities-acrossamerica-664467. 
Chapter 3: Recent Changes in Voting Laws and Procedures 119

of the 2016 votes in those jurisdictions.”694 This may be because of the laws with severe penalties

already on the books.695

Some advocates have argued that because of the alleged problem of noncitizen voting, strict voter

ID laws should be enacted, voter rolls should be purged, and documentary proof of citizenship

should be required in order to register to vote.696 Examining the relevant testimony before federal

courts shows that these allegations may be overstated.697 For example, the American Civil Rights

Union (ACRU) submitted an amicus (friend of the court) brief to the Supreme Court with

allegations of noncitizen voting that were exaggerated.698 One of the main proponents of the theory

that noncitizen voting is rampant, Kansas Secretary of State Kris Kobach, estimated that 18,000

noncitizens may be registered to vote in his state.699 On June 18, 2018, a federal court in his state

found that there was “no credible evidence that a substantial number of noncitizens registered to

vote.”700 A federal court of appeals had already found that during the time period at issue, 30

noncitizens registered to vote, about three per year.701 “Of those..., there is evidence that three

actually cast votes under the mistaken belief that they were entitled to vote.”702 Kansas’ law—

 

694 Christopher Famighetti, Douglas Keith & Myrna Pérez, Noncitizen Voting: The Missing Millions, Brennan 

Center for Justice, THE BRENNAN CENT. FOR JUSTICE (May 15, 2017), 

https://www.brennancenter.org/publication/noncitizen-voting-missing-millions 695 See Discussion and Sources cited at notes 682-85, supra (discussing federal criminal penalties, risk of deportation 

and NVRA’s and HAVA’s requirement of attestation of citizenship under penalty of perjury).

696 Briefing Transcript, supra note 234, at 153-54 (statement by Cleta Mitchell); see also Briefing Transcript, supra 

note 234, at 155 (statement by John Merrill). 697 When the American Civil Rights Union (ACRU) submitted a brief to the Supreme Court backing the Kansas 

Secretary of State in a prominent case involving documentary proof of citizenship in Kansas, its allegations of 

noncitizen voting were not backed by facts. Brief of the American Civil Rights Union as Amicus Curiae in Support 

of Petitioners at 11-12, Kobach v. United States Election Assistance Com’n, 2015 WL 1848103, 135 S. Ct. 2891 

(2015) (No. 14-1164). ACRU submitted 13 registration forms from Texas in which noncitizens were registered, but 

none had attested that they were citizens. These noncitizens had either checked NO on the citizenship box, or 

checked both YES and NO, or left the citizenship box blank. There was no evidence that any of them had voted. On 

a national level, the ACRU could only point to one confirmed allegation of noncitizen voting.

698 Id. 699 Zachary Mueller, Fish v. Kobach Trial— Day One, INSTITUTE FOR RESEARCH AND EDUCATION ON HUMAN 

RIGHTS (Mar. 6, 2018), https://www.irehr.org/2018/03/06/fish-v-kobach-trial-day-one/. Notably, these were the 

same number of voter registration applications that were suspended for failure to provide the strict forms of 

documentary proof of citizenship Kansas requires to register to vote that were discussed during the preliminary

injunction phase of this case, Fish v. Kobach, 840 F.3d 710, 754-55 (10th Cir. 2016). But failure to provide a birth 

certificate or naturalization papers does not correspond to noncitizenship. Id. at 745. 700 Fish v. Kobach, 309 F. Supp. 3d 1048, 1101 (D. Kan. 2018), https://www.aclu.org/legal-document/fish-vkobach-findings-fact-and-conclusions-law. 701 Fish v. Kobach, 189 F. Supp 3d 1107, 1137-38 (D. Kan. 2016). 702 Id. (emphasis added). The court also found that: 

The evidence shows that the DMV clerks currently ask applicants if they are United States citizens, 

and they check a box if the applicant responds affirmatively. This was the method Kansas used to 

assess citizenship eligibility prior to the effective date of the SAFE Act in 2013. Between January 1, 

2006 (seven years before the documentary proof of citizenship law became effective), and March 23, 

2016, 860,604 people registered to vote in the State of Kansas . . . 
120 An Assessment of Minority Voting Rights Access

broadly restricting access to voter registration as a remedy for this relatively small problem—was

therefore permanently enjoined on June 18.703 Secretary of State Kobach had already been held in

contempt for disobeying a prior federal court order.704

Hans von Spakovsky was an expert in this case, testifying to broad allegations of noncitizens

voting, but he admitted during the trial that he knew of no federal elections in which the outcome

was decided by noncitizens.705 The federal court ruled that:

The Court gives little weight to Mr. von Spakovsky’s opinion and report because

they are premised on several misleading and unsupported examples of noncitizen

voter registration, mostly outside the State of Kansas. His myriad misleading

statements, coupled with his publicly stated preordained opinions about this subject

matter, convinces the Court that Mr. von Spakovsky testified as an advocate and

not as an objective expert witness.706

Associate Professor Jesse Richman also testified for Kobach, estimating that 1,000-18,000

noncitizens were registered on the voting rolls; but he admitted that his estimate was based on

surveys that are not peer-reviewed and have been challenged in a letter signed by 200 political

scientists.707 Moreover:

In one survey, Richman and a graduate assistant flagged names on the list of

suspended voters in Kansas that sounded foreign. When American Civil Liberties

Union attorney Dale Ho asked if the name “Carlos Murguia” would be flagged,

 

This evidence supports the conclusion that very few noncitizens in Kansas successfully registered to 

vote under an attestation regime. Importantly, there is no evidence that under that regime, thousands of 

otherwise eligible applicants were cancelled or held in suspense for failure to establish eligibility 

requirements. On this record, Plaintiffs make a strong showing that the documentary proof of 

citizenship law cannot be justified as the minimum amount of information necessary to assess 

citizenship eligibility, where the rates of noncitizen voter fraud prior to the Act's passage are at best 

nominal.

703 Fish, 309 F. Supp. 3d at 1119, https://www.aclu.org/legal-document/fish-v-kobach-findings-fact-andconclusions-law. 704 Fish v. Kobach, 294 F. Supp. 3d 1154, 1156 (D. Kan. 2018) (holding Kobach in contempt of the court’s order as 

he continued to enforce the documentary proof of citizenship law). 705 See, e.g., Brian Lowry, Kobach Turns to Controversial Scholar As Witness in Voting Rights Trial, KANSAS CITY 

STAR (Mar. 9, 2018), http://www.kansascity.com/news/politics-government/article204422539.html (noting that “von 

Spakovsky testified that even a small number of non-citizens on voter rolls ‘could make the difference in a race 

that's decided by a small number of votes,’ but during cross-examination acknowledged that he could not name a 

specific federal election that was decided by non-citizen votes.”). 706 Fish, 309 F. Supp. 3d at 1082, https://www.aclu.org/legal-document/fish-v-kobach-findings-fact-andconclusions-law. 707 Associated Press, Expert Defends Estimates of Noncitizens in Kansas, ASSOCIATED PRESS (Mar. 13, 2018) 

https://apnews.com/dcbcc68e68304db98200c568a582392d. 
Chapter 3: Recent Changes in Voting Laws and Procedures 121

Richman said yes. Ho told him Murguia is a federal judge in the courthouse where

the trial is occurring.708

The federal court found this methodology to be so troubling that it needed no further

explanation.709

Current Voter Registration Issues

New voter registration barriers enacted to counter the above allegations may have a disparate

impact on voters of color. The uniquely U.S. requirement to register before voting can itself be an

obstacle to some eligible citizens. Studies have shown that the very requirement to register to vote

reduces turnout and primarily impacts the poor.710 In his written statement submitted to the

Commission, the Director of Elections for the State of Colorado, Judd Choate, stated that “the

greatest impediment to voting is not polling place restrictions, it is voter registration.”711 Moreover,

according to the National Association of Latino Elected Officials (NALEO):

Racial and ethnic disparities in civic participation and representation begin at

registration. Nationwide, according to the 2012 Current Population Survey (CPS)

Voting and Registration report, just 58.7% of adult Latino citizens were registered

to vote, compared to 73.7% of whites. 2012 CPS data also showed that 6.1% of

Latino non-voters and 6.7% of African American non-voters reported that

registration problems were the reason why they had not voted in 2012, compared

to just 5.2% of whites.

712

All states except North Dakota require registration in order to vote, but some states make it easier

than others.713 While most states require voter registration by a deadline in advance of Election

Day, 15 states and the District of Columbia have same-day registration, where voters can register

 

708 Id. 709 Fish, 309 F. Supp. 3d at 1093. 710 Id. at 1054 n.4 (citing Steven J. Rosenstone & Raymond E. Wolfinger, The Effect of Registration Laws on Voter 

Turnout, 72 AM. POL. SCI. REV. 22 (Mar. 1978); see also G. Bingham Powell, Jr., American Voter Turnout in 

Comparative Perspective, 80 AM. POL. SCI. REV. 17 (Mar. 1986); see also Stephen Ansolabehere & David M. 

Konisky, The Introduction of Voter Registration and Its Effect on Turnout, 14 POL. ANALYSIS 83 (Winter 2006); see 

also James M. Avery & Mark Peffley, Voter Registration Requirements, Voter Turnout, and Welfare Eligibility 

Policy: Class Bias Matters, 5 STATE POL. & POL’Y Q. 47 (Spring 2005)). 711 Jude Choate, Director of Elections, Colorado Department of State, Written Testimony for the U.S. Comm’n on 

Civil Rights, Feb. 2, 2018 at 2 [hereinafter Choate, Written Testimony]. 712 NALEO Educational Fund, Latino Voters At Risk: Assessing the Impact of Restrictive Voting Changes in 

Election 2016, NALEO EDUCATIONAL FUND 10 (2016), 

https://d3n8a8pro7vhmx.cloudfront.net/naleo/pages/233/attachments/original/1462976324/Latino_Voters_at_Risk_

7.pdf (emphasis added). 713 Nat’l. Conf. of State Legislators, Voter Registration, NCSL (Sept. 27, 2016) 

http://www.ncsl.org/research/elections-and-campaigns/voter-registration.aspx. 
122 An Assessment of Minority Voting Rights Access

on Election Day or in some cases, during early voting.714 Only a few of the states with this positive

measure were formerly covered for preclearance.715 Hawaii has also recently enacted same-day

registration, to be implemented in 2018.716 But in the remaining majority ofstates acrossthe nation,

states must register voters who submit a valid voter registration form either 30 days in advance of

Election Day or by any less stringent state deadline.717 The Commission also notes that 11 states

and the District of Columbia have recently enacted Automatic Voter Registration (AVR) laws,

again showing that some states are enacting positive measures to expand access to the ballot. These

states are: Alaska, California, Colorado, District of Columbia, Illinois, Maryland, New Jersey,

Oregon, Rhode Island, Vermont, Washington, and West Virginia.

718 Alaska and California are the

only formerly covered states with this measure that expands access to voter registration.719 (For

further information on AVR, see Appendix C.)

In contrast with positive measures in some states, during the time covered by the Commission’s

current study, since the 2006 VRA Reauthorization and the June 2013 Shelby County decision,

other types of changes to voter registration procedures have been adopted that generally create

new barriers to the ballot. These include: (1) requiring discriminatory forms of documentary proof

of citizenship in order to register to vote; (2) challenges to voter eligibility; and (3) aggressive

types of voter list maintenance or purges of voters from the rolls, each of which is discussed below.

Even though they are generally governed by the NVRA, these types of voter registration issue are

actionable under the VRA.

Prior to Shelby County, changes in voter registration procedures were subject to preclearance under

Section 5 of the Voting Rights Act. In 1997, in Young v. Fordice, the Supreme Court held that

changes in voting that fell under the NVRA had to be precleared and reviewed to determine

whether they would be discriminatory, before they could be enacted.720 Potential Section 2 issues

 

714 States with same-day registration, including on Election Day, are: CA, CO, CT, DC, IA, ID, IA, IL, ME, MN, 

MT, NH, WI, WI, VT; while Maryland and North Carolina only offer SDR during Early Voting. Nat’l. Conf. of 

State Legislators, Same Day Voter Registration (SDR), NCSL, at 4 (Oct. 12, 2017) 

http://www.ncsl.org/research/elections-and-campaigns/same-day-registration.aspx. 715 Id. and Cf. Map of Formerly Covered Jurisdictions, Chapter 2, Figure 2, supra note 245. 716 Id. 717 52 U.S.C. § 20507(a)(1)(D). 718 See, e.g., Nat’l. Conf. of State Legislators, Automatic Voter Registration, NCSL

http://www.ncsl.org/research/elections-and-campaigns/automatic-voter-registration.aspx (last accessed Aug. 2, 

2018).

719 See Map of Formerly Covered Jurisdictions, Chapter 2, Figure 2. 720 Fordice, 520 U.S. 273 at 281-82. The history of this case explains the application of the VRA to changes in voter 

registration procedures. When Mississippi first implemented the NVRA after its enactment in 1993, it did not 

properly seek preclearance, but the Supreme Court found that the state’s implementation of the NVRA’s new voter 

registration procedures were within the definition of voting changes that had to be submitted for preclearance under 

Section 5. Id. The Court also noted that the NVRA makes clear that it doesn’t create a conflict with the VRA and 

explicitly states that it does not limit the VRA’s application. Id. (citing NVRA provisions 42 U.S.C. § 1973gg9(d)(2), § 1973gg-9(d)(1)) (transferred to 52 U.S.C. § 20510(d)(1)-(2)) (“[T]he NVRA does not forbid application of 

the VRA’s requirements. To the contrary, it says “[n]othing in this subchapter [of the NVRA] authorizes or requires 

conduct that is prohibited by the VRA.’ And it adds that “neither the rights and remedies established by this section 
Chapter 3: Recent Changes in Voting Laws and Procedures 123

may also arise if changes to voter registration rules are racially discriminatory. For example, in

1987, a federal court found that Mississippi’s dual registration requiring separate registration for

federal and local elections had a racially discriminatory effect and violated Section 2,721 due to the

persistence of severe socioeconomic disparities for black citizens in Mississippi.722 The state was

also forced to end another set of dual registration procedures it had created after implementing

new federal NVRA requirements to register voters at state agencies that receive federal funding.

Mississippi voters who wanted to also vote in state elections would have had to fill out a separate

state form,723 but this regime was never implemented because preclearance was denied under

Section 5.724 The DOJ found that more than half the people who had registered to vote in

Mississippi under the new federal NVRA rules (30,000 people) had not separately registered for

state elections, with a clear disproportionate impact on black voters, “preventing them, to a greater

extent than white citizens, from voting in state and local elections.”725 Moreover, based on the

 

nor any other provision of this subchapter [of the NVRA] shall supersede, restrict, or limit the application of the 

VRA.”).

721 Among other legal challenges, a voter registration group challenged the state’s dual registration requirement 

under Section 2 of the VRA, and prevailed in its Section 2 claim regarding illegal discriminatory effects. Mississippi 

State Chapter Operation, PUSH v. Allain, 674 F. Supp. 1260, 1268 (N.D. Miss. 1987). 722 Id. This issue was originally addressed under Section 2 because the practice was a century old, and therefore 

there was no change in voting procedures that would have had to be subject to preclearance under Section 5. 

(Section 5 prohibits a State with a specified history of voting discrimination, such as Mississippi, from “enact[ing] 

or seek[ing] to administer any voting qualification or prerequisite to voting, or standard practice, or procedure with 

respect to voting different from that in force or effect on November 1, 1964,” unless and until the State obtains 

preclearance from the United States Attorney General (Attorney General) or the United States District Court for the 

District of Columbia. 52 U.S.C. § 10304 (emphasis added)). 723 Fordice, 520 U.S. at 280. 724 Id. This was yet another change involving NVRA implementation, and the Court held that these types of 

subsequent changes in implementation of the NVRA requirements were also subject to preclearance. Id. at 284

(reasoning that: “This Court has made clear that minor, as well as major, changes require preclearance. Allen v. State 

Bd. of Elections, 393 U.S. 544, 566-569, 89 S.Ct. 817, 832-834, 22 L.Ed.2d 1 (1969) (discussing minor changes, 

including a change from paper ballots to voting machines); NAACP v. Hampton County Election Comm’n, 470 U.S. 

166, 175-177, 105 S.Ct. 1128, 1133-1135, 84 L.Ed.2d 124 (1985) (election date relative to filing deadline); Perkins, 

supra, at 387, 91 S. Ct. at 436 (location of polling places). ); see also 28 C.F.R. § 51.12 (1996) (requiring 

preclearance of “[a]ny change affecting voting, even though it appears to be minor or indirect . . . ”). This is true 

even where, as here, the changes are made in an effort to comply with federal law, so long as those changes reflect 

policy choices made by state or local officials. Allen, supra, at 565, n. 29, 89 S.Ct., at 831, n. 29 (requiring State to 

preclear changes made in an effort to comply with § 2 of the VRA, 42 U.S.C. § 1973); McDaniel v. Sanchez, 452 

U.S. 130, 153, 101 S.Ct. 2224, 2238, 68 L.Ed.2d 724 (1981) (requiring preclearance of voting changes submitted to 

a federal court because the VRA “requires that whenever a covered jurisdiction submits a proposal reflecting the 

policy choices of the elected representatives of the people—no matter what constraints have limited the choices 

available to them—the preclearance requirement of the Voting Rights Act is applicable”); Lopez v. Monterey 

County, 519 U.S. 9, 22, 117 S.Ct. 340, 348, 136 L.Ed.2d 273 (1996) (quoting McDaniel and emphasizing the need 

to preclear changes reflecting policy choices); Hampton County Election Comm’n, at 179-180, 105 S.Ct., at 1135-

1136 (requiring preclearance of change in election date although change was made in an effort to comply with § 

5).”). 725 U.S. Dep’t of Justice, Voting Determination Letter from Acting Assistant Attorney General Isabelle Katz Pinzler 

to Mississippi Special Assistant Attorney General Sandra M. Shelson (Sept. 22, 1997) 

https://www.justice.gov/crt/voting-determination-letter-22. The DOJ found that: “Thus, the State’s federal-electiononly implementation of the NVRA has a disproportionate impact on black citizens, preventing them, to a greater
124 An Assessment of Minority Voting Rights Access

historical record, the discriminatory impact of dual registration was “predictable,” and “the fact

that the State has implemented these voting changes without preclearance for more than two and

a half years has led to the full realization of the discriminatory potential of these changes.”726 In

1980, the DOJ also objected to dual registration procedures in Berrien City, Georgia, which would

have required that voters register in both county and city elections, if they wanted to vote in both

county and municipal elections.727 As will be shown below, dual registration is at issue again in

several states.

This section also discusses discriminatory voter challenges, which have also been held to be

actionable under Section 2 of the VRA,728 and discriminatory removal or purges of voters from

the rolls, which are actionable under the Sections 2 and 5. Changes in voter registration list

maintenance procedures were subject to preclearance under Section 5, and in 1973, in Toney v.

White, the Fifth Circuit Court of Appeals affirmed that list maintenance procedures that disparately

targeted minority voters could be enjoined under Section 2.729 As discussed herein, while these

issues have not gone to trial again recently, Section 2 claims regarding discriminatory purges have

been favorably settled in the time covered by this report.730

The materiality provision of the VRA is also applicable to some of the recent voter registration

restrictions discussed herein. It provides that no person shall be denied the right to vote “because

of an error or omission on any record or paper relating to any application, registration, or other act

requisite to voting, if such error or omission is not material in determining whether such individual

is qualified under State law to vote in such election.”731 The Commission now turns to examining

the main types of recent restrictions to voters getting and staying on the voter registration rolls and

thereby being able to vote.

 

extent than white citizens, from voting in state and local elections. This has the overall impact of hampering the 

ability of black persons to participate in the political process.” Id. at 3. Moreover, there was discriminatory intent in 

the legislative history. Id. 726 Id. (emphasis added). 727 U.S. Dep’t of Justice, Voting Determination Letters for Georgia (last updated Aug. 7, 2015) 

https://www.justice.gov/crt/voting-determination-letters-georgia [hereinafter DOJ, Georgia Voting Determination 

Letters]. 728 See Allen, 393 U.S. at 567 (describing the broad scope of Section 2 claims, “Congress expanded the language in 

the final version of s 2 to include any ‘voting qualifications or prerequisite to voting, or standard, practice, or 

procedure’”). 729 476 F.2d 203, 209 (5th Cir. 1973) (citing cases); Cf. Ortiz v. Phila. Office of City Comm’rs Voter Registration 

Division, 28 F.3d 306, 312-13 (3rd Cir. 1994) (asserting that a Section 2 violation was not established per se by 

discriminatory impact alone, in jurisdiction where there was insufficient evidence of historical discrimination or 

inability to elect candidates of choice).

730 See Stipulation of Dismissal as to Counts I, II, and parts of IV, Arcia v. Detzner, No. 1:12-CV-22282 (Sept. 12, 

2012).

731 Fla. State Conference of N.A.A.C.P. v. Browning, 569 F. Supp. 2d 1237, 1241 n.3 (N.D. Fl. 2007) (citing 42 

U.S.C. § 1971(a)(2)(B) (transferred to 52 U.S.C. § 10101(a)(2)(B)).
Chapter 3: Recent Changes in Voting Laws and Procedures 125

Documentary Proof of Citizenship

Under these new types of state voter registration laws, documentary proof of citizenship is limited

to U.S. birth certificates (including tribal certificates), passports, or naturalization or citizenship

certificates. These requirements may also be met by unexpired state-issued drivers’ licenses or

state photo IDs from the 31 states that require the same type of underlying documentary proof of

citizenship through their implementation of the federal REAL ID Act, as long as the state IDs also

have the voter’s current legal name and address.732

Federal courts have found that the costs associated with replacing a birth certificate can have a

disparate impact on black and Latino voters.733 For example, elderly African-American citizens

born in the South are less likely to have birth certificates, as under Jim Crow laws, their mothers

were not permitted to give birth in hospitals.734 A 1950 study concluded that 94.0 percent of white

births were registered nationwide, whereas only 81.5 percent of non-white births were

 

732 See, e.g., ARIZ. REV. STAT. ANN. § 16-152(A). In Arizona, the voter registration form must contain a “statement 

that the applicant shall submit evidence of United States citizenship with the application and that the registrar shall 

reject the application if no evidence of citizenship is attached.” ARIZ. REV. STAT. ANN. § 16-152(A)(23). The 

following documents satisfy Arizona’s documentary proof of citizenship law: 

(1) The number of the applicant’s driver license or nonoperating identification license issued after October 

1, 1996 by the department of transportation or the equivalent governmental agency of another state within 

the United States if the agency indicates on the applicant’s driver license or nonoperating identification 

license that the person has provided satisfactory proof of United States citizenship. 

(2) A legible photocopy of the applicant’s birth certificate that verifies citizenship to the satisfaction of the 

county recorder. 

(3) A legible photocopy of pertinent pages of the applicant’s United States passport identifying the 

applicant and the applicant’s passport number or presentation to the county recorder of the applicant’s 

United States passport. 

(4) A presentation to the county recorder of the applicant’s United States naturalization documents or the 

number of the certificate of naturalization. If only the number of the certificate of naturalization is 

provided, the applicant shall not be included in the registration rolls until the number of the certificate of 

naturalization is verified with the United States immigration and naturalization service by the county 

recorder. 

(5) Other documents or methods of proof that are established pursuant to the immigration reform and 

control act of 1986. 

(6) The applicant’s bureau of Indian affairs card number, tribal treaty card number or tribal enrollment 

number. ARIZ. REV. STAT. ANN. § 16-166(F) (emphasis added); see also U.S. Dep’t of Homeland Security, 

“REAL ID,” https://www.dhs.gov/real-id-enforcement-brief# (last updated Jan. 25, 2018) (19 states and all 

4 U.S. territories are not yet fully compliant with REAL ID). 733 See, e.g., Veasey, 71 F. Supp. 3d at 665 (citing testimony from witness Sammie Louise Bates, who stated at trial 

that she could not afford the $42 it would have cost her to obtain a birth certificate because she needed the money to 

meet her family’s basic living expenses).

734 See, e.g., One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 915 (W.D. Wis. 2016).
126 An Assessment of Minority Voting Rights Access

registered.735 Because of name changes, women may also have increased difficulty in showing

documentary proof of citizenship that matches current records.

736

As of 2010, Puerto Rican birth certificates have been declared invalid and are therefore not

accepted as proof of citizenship in REAL ID states (or in states with voter ID laws).737 Because of

this, a federal court in Wisconsin found that “[t]he lack of a valid birth record correlated strikingly,

yet predictably, with minority status.”738 And in Pennsylvania, procuring replacement Puerto

Rican birth certificates for persons born before 2010 was already problematic as it was associated

with additional procedures and a processing fee.739 These same issues arise in states requiring

documentary proof of citizenship to register to vote, and after Hurricane María, which devastated

the island,740 it is unlikely that the Puerto Rican government will be able to provide replacement

birth certificates in a timely and cost-effective manner.

 

735 S. Shapiro, Development of Birth Registration and Birth Statistics in the United States, 4 POPULATION STUDIES:

A JOURNAL OF DEMOGRAPHY 86, 98-99 (1950). “Registration completeness figures based on matched infant cards 

and death records were 94.0 percent for the white race and 82.0 percent for the non-white.” Id. at 98 n.2. 736 See, e.g., McCrory, 182 F. Supp. 3d at 361 (internal citations omitted). The trial court discussed the difficulties of 

Rosanell Eaton, a 93-year-old African American woman:

Because the name on her birth certificate (Rosanell Johnson) did not match the name on her social security card, 

federal law prohibited the DMV from issuing her a driver’s license. Ms. Eaton testified that the DMV told her 

she needed to get her SSN changed. Presumably, she was actually told to get the name on her social security 

card changed so it matched the name she sought to use at the DMV, but here, too, the record is not clear. In any 

event, Ms. Eaton says the DMV refused to take further action until she made changes at the social security 

office. It took her ten trips (and two tanks of gas) back-and-forth between the DMV and the social security 

office before she got her license on January 26, 2015. Ms. Eaton is confident now that she will be able to vote 

using her new license. 

Ms. Eaton’s testimony does not make clear why her ordeal was so involved, but it is troubling that any 

individual could be subjected to such a bureaucratic hassle. Id.

737 One Wisconsin Inst., 198 F. Supp. 3d at 915 (“The evidence at trial demonstrated that Puerto Rico, Cook County, 

Illinois, and states with a history of de jure segregation have systematic deficiencies in their vital records systems. 

Voters born in those places were commonly unable to confirm their identities under the DMV's standards. And 

many of the state's Latino residents were born in Puerto Rico.”); P.R. LAWS ANN. tit. 24, § 1325; see also

Government of Puerto Rico, Puerto Rico’s New Birth Certificate Law (Law 191 of 2009—As Amended)

http://www2.pr.gov/prgovEN/Pages/BirthCertifcateInfo.aspx (last accessed Aug. 6, 2018). 738 One Wisconsin Inst., 198 F. Supp. 3d at 915; see also Wisconsin Dep’t of Motor Vehicles, Acceptable 

Documents For Proof of Citizenship or Legal Status in the United States, 

http://wisconsindot.gov/Pages/dmv/license-drvs/how-to-apply/citizen-leg-pres.aspx (last accessed June 4, 2018) 

(“Wisconsin will not accept Puerto Rican birth certificates issued before July 1, 2010, in line with Puerto 

Rico’s law as of October 30, 2010. More information available at pr.gov.”). 739 See Expert Report of Dr. Matt Barreto, Applewhite v. Pennsylvania, No. 330 M.D. 2012, WL 3332376 (Pa. 

Commw. Ct. 2012), at 26-27, https://www.aclupa.org/files/2513/7960/9091/Barreto.pdf. 740 See, e.g., Danica Coto, Needs Go Unmet 6 Months After Maria Hit Puerto Rico, ASSOCIATED PRESS (Mar. 30, 

2018), https://www.apnews.com/de367742d0c440de85e4b6cb107973d4/Needs-go-unmet-6-months-after-Maria-hitPuerto-Rico?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP (describing inability to provide 

for health, education, and welfare 6 months after “[t]he storm caused an estimated $100 billion in damage, killed 

dozens of people and damaged or destroyed nearly 400,000 homes, according to Puerto Rico’s government.”).
Chapter 3: Recent Changes in Voting Laws and Procedures 127

The current statutory cost for replacing a naturalization certificate is $555.00.741 The current

statutory cost for procuring a citizenship certificate is $1,170.00,742 and for replacement,

$555.00.743 Naturalization certificates are issued to persons who become citizens through

naturalization, and citizenship certificates may be issued to persons with “derivative citizenship”

who are born abroad to a U.S. parent. In 2016, an estimated 8.8 percent of eligible voters were

naturalized citizens, and their numbers are growing.744 About 32 percent of naturalized citizens are

Latino, another 32 percent are Asian, and 9.8 percent are black.745

Possible Dual Registration Issues in Arizona and Kansas

Currently, in states with documentary proof of citizenship laws, documentary proof of citizenship

cannot be required for the federal voter registration forms (“Federal Form”). Therefore, citizens

who register to vote without documentary proof of citizenship may be legally limited to voting in

only federal elections, and may not be equally entitled to exercise their right to vote for state

representatives or their local school board, or in any other state or local election.746 They also

sometimes have to vote on separate, federal-only ballots, whereas other citizens may vote complete

or unified ballots.747 This may implicate discriminatory dual registration procedures. As discussed

further below, in 2014 and 2016, Arizona and Kansas litigated and lost their attempts to have the

federal Election Assistance Commission put their states’ documentary proof of citizenship

requirements on the Federal Form,748 but they did not remove the requirement from their state

voter registration rules, resulting in dual registration procedures. 749

 

741 U.S. Citizenship and Immigration Services, N-565, Application for Replacement Naturalization/Citizenship 

Document, USCIS, https://www.uscis.gov/n-565 (last updated June 4, 2018). 742 U.S. Citizenship and Immigration Services, N-600, Application for Certificate of Citizenship, USCIS,

https://www.uscis.gov/n-600 (last updated Apr. 11, 2018) (noting that: “This fee applies even if you are filing as an 

adopted child or as a child of a veteran or member of the U.S. armed forces.”).

743 USCIS, N-565, supra note 741. 744 Manuel Pastor, Justin Scoggins, and Magaly N. López, Rock the (Naturalized) Vote II: The Size and Location of 

the Recently Naturalized Voting Age Citizen Population, 4, U. S. CAL. DORNSIFE: CENTER FOR STUDY OF 

IMMIGRANT INTEGRATION (Sept. 2016), http://dornsife.usc.edu/assets/sites/731/docs/rtnv2016_report_final_v4.pdf

(using Census data).

745 U.S. Census Bureau, 2010-14 American Community Survey, CENSUS BUREAU,

https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_5YR_S0501&prodType

=table (last accessed Aug. 7, 2018). 746 See, e.g., Re: Voter Registration, Ariz. Op. Att’y Gen. No. I13-011 at *1 (Oct. 7, 2013) (stating that “registrants 

who used the Federal Form and did not provide sufficient evidence of citizenship are not eligible to vote for state 

and local races”). 

747 See Belenky v. Kobach, No. 2013-CV-1331, 2016 WL 8293871 (D. Kan. 2016) (granting the plaintiffs’ motion 

for summary judgment), https://www.aclu.org/legal-document/belenky-v-kobach-summary-judgment. 748 See Discussion and Cases cited at notes 775 and 778-81, infra. 749 Belenky, 2016 WL 8293871, https://www.aclu.org/legal-document/belenky-v-kobach-summary-judgment

(describing Kansas’ dual registration system); Ariz. Op. Att’y Gen. No. I13-011 at *1 (Oct. 7, 2013) (stating that 

“registrants who used the Federal Form and did not provide sufficient evidence of citizenship are not eligible to vote 

for state and local races”).
128 An Assessment of Minority Voting Rights Access

Arizona

Under Arizona’s documentary proof of citizenship law, only limited types of documents were

accepted. 750 Moreover, while copies of passports and birth certificates could be submitted by mail,

naturalization papers had to be the original papers, and were required to be presented in person, or

they would be verified with the federal government.751 Arizona submitted its documentary proof

of citizenship rules for preclearance under Section 5, and in 2005, the Attorney General precleared

them.752 Arizona was immediately subject to litigation under Section 2, and a preliminary

injunction was issued, but that was overturned by the Supreme Court in October 2016.

753 The

Section 2 claim was also ultimately unsuccessful on the merits.

754 Therefore, although Arizona

was later blocked from including documentary proof of citizenship on the Federal Form through

separate litigation,

755 it was allowed to keep the rules on the state form.

Arizona recently reached a settlement agreement in another case regarding the dual registration

procedure that resulted from the above. In LULAC v. Reagan, plaintiffs alleged that the dual

registration system violated the 1st and 14th Amendments, and on June 4, 2018, the parties filed a

joint motion for the federal court to enter into a Consent Decree resolving the claims.756 Arizona

agreed that its documentary proof of citizenship law would no longer remain in force for the state’s

upcoming August 2018 primary elections,757 and agreed to treat State Forms the same as Federal

Forms, so any voter who submits either form without documentary proof of citizenship will still

be registered to vote so long as the Motor Vehicles Department (MVD) has documentary proof of

 

750 Arizona’s documentary proof of citizenship law was enacted as part of a package of laws targeting immigrants, 

such as criminalizing immigration status under state law and requiring local officials and employers to enforce 

federal civil immigration laws; the majority of these measures were overturned as unconstitutional due to federal 

preemption in Arizona v. United States, 567 U.S. 387, 416 (2012). The context is important to Latino citizens who 

may feel intimidated and fear voting when their right to vote is targeted in a state with an anti-immigrant climate. 

See, e.g., Ana Henderson, Citizenship Verification, Obstacle to Voter Registration and Participation, NEW POL.

SPACES 19(1) (2012), http://www.reimaginerpe.org/19-1/henderson [hereinafter Henderson, Citizenship 

Verification, Obstacle to Voter Registration and Participation]; see also Advancement Project, Segregating 

American Citizenship: Latino Voter Disenfranchisement in 2012, ADVANCEMENT PROJECT 4 (Sept. 24, 2012), 

https://b.3cdn.net/advancement/18ff5be68ab53f752b_0tm6yjgsj.pdf (discussing the impact of documentary proof of 

citizenship laws on Latino voters in mixed-status families and communities). The Commission discussed Arizona’s 

anti-immigrant measures in a 2012 briefing, and the transcript is available here: 

http://www.usccr.gov/calendar/trnscrpt/Transcript_08-17-12.pdf. 751 Henderson, Citizenship Verification, Obstacle to Voter Registration and Participation, supra note 750, at 1083. 752 Purcell, 549 U.S. at 6. 753 Id. 754 Gonzalez, 677 F.3d at 407. 755 Arizona could not require documentary proof of citizenship on the Federal Form as such a requirement is 

precluded by the National Voter Registration Act. Inter Tribal Council, 570 U.S. at 20. 756 Joint Motion for Consent Decree at 4, League of Latin Am. Citizens Arizona v. Reagan, No. 2:17-CV-04102 (D. 

Ariz. June 4, 2018), 

http://www.campaignlegalcenter.org/sites/default/files/Joint%20Motion%20for%20Entry%20of%20Consent%20De

cree_0.pdf. 757 Id.
Chapter 3: Recent Changes in Voting Laws and Procedures 129

citizenship on file.758 Arizona made no concession that its law was unconstitutional, but noted that

current technology allows the state to provide necessary safeguards against registration fraud by

automatically checking MVD’s database, while making it easier for citizens to register to vote,

such that a documentary proof of citizenship law was no longer necessary.759 The Commission

notes that the settlement effectively still requires documentary proof of citizenship in order to be

registered to vote.760

The Commission’s Arizona SAC heard testimony about the dual registration system and its

complications at the SAC’s briefing on voter access in March 2018. One county recorder testified

that the dual registration system is “very complicated and confusing” and she believes “it’s

preventing many people, citizens in my county, from being able to participate in voting in state

and local elections.”761

 

758 Id. at 2. 759 Id. 760 See, e.g., Robert Warren and Donald Kerwin, The US Eligible-to-Naturalize Population: Detailed Social and 

Economic Characteristics, 3 J. ON MIGRATION AND HUM. Security 306, 312-13 (2015). Here is one Latino 

naturalized citizen’s story, as told to NALEO and recounted in an amicus brief before the Supreme Court:

In 2004, when Arizona implemented a requirement that voters provide documentary proof of their U.S. citizenship 

at the time of voter registration, Jesus Gonzalez of Yuma, Arizona became a United States citizen. After his 

naturalization ceremony, he immediately completed a voter registration form and submitted the number of his 

Certificate of Naturalization to satisfy the state’s new requirement. Even though the law as originally devised 

listed this as one of the approved methods of proving citizenship at registration, Mr. Gonzalez’s application was 

rejected because there was no mechanism by which Arizonan authorities could verify the validity of an applicant’s 

Certificate of Naturalization number with federal officials (and no mechanism has yet been developed for this 

verification). When he received notice, Mr. Gonzalez completed a second new registration application, this time 

providing his Arizona driver’s license number, another approved method for proving citizenship. However, his 

application was rejected a second time. As a long-time legal permanent resident, Mr. Gonzalez had obtained his 

driver’s license before 1996, before Arizona began tracking residents’ citizenship status in DMV records; 

therefore, his license was not acceptable as proof of citizenship. It further came to light that in Arizona, residents 

with driver’s licenses or state IDs who were legal immigrants, but not yet U.S. citizens, were identified in DMV 

records by an “F” marker, and any voter registrants who provided state ID numbers corresponding to records 

marked “F” would have their applications rejected. Many or most such registrants were, however—like Mr. 

Gonzalez—people who had naturalized but not yet renewed or otherwise updated their state ID records since 

becoming U.S. citizens. In Arizona, there are approximately 210,000 legal permanent residents immediately 

eligible for naturalization, and a majority of them are Latinos of Mexican origin. Many will become vulnerable 

to the same barriers that Mr. Gonzalez encountered if and when they naturalize and seek to participate in Arizona 

elections. Brief for Amici Curiae LatinoJustice PRLDEF, et al., in Support of Respondents, Inter Tribal Council, 

570 U.S. at 10-11.

The above story shows that a Legal Permanent Resident who was legally entitled to receive a driver’s license and 

later naturalized would have to provide documentary proof of citizenship before he could vote. It also shows that list 

maintenance to check for documentary proof of citizenship could result from the settlement.

761 Arizona State Advisory Committee to the U.S. Comm’n on Civil Rights, Briefing Transcript at 23. 
130 An Assessment of Minority Voting Rights Access

Kansas

Testimony critiquing documentary proof of citizenship also arose during the Commission’s Kansas

SAC briefing on voting rights in 2016.

762 The Committee heard from Kansas citizens arguing that

many voters felt disenfranchised due to “(1) inconsistencies in implementation and training of the

state’s documentary proof of citizenship law; (2) insufficient voter education efforts; (3) the level

of burden for citizens to obtain required documentation; and (4) a lack of provision for those born

out of state to obtain free documentation.”763 The Committee ultimately determined that despite

the fact that the IDs can be acquired from the state agency for free, in practice many citizens ended

up paying for their documents, and they equated this payment to an unconstitutional poll tax.764

The Committee also found that eligible voters have been turned away because poll workers were

unaware that the identification that was given to them was acceptable. In addition, the Committee

found a lack of voter education surrounding the law and that Kansas’ proof of citizenship and voter

ID requirements were the “strictest in the nation.”765 Many of the panelists suggested the state’s

documentary proof of citizenship law may have been written “with improper, discriminatory

intent.”766

Regarding the burden on eligible voters in Kansas, nationally recognized voting rights scholar

Michael McDonald submitted an expert report and testified at a recent federal trial767 that from

January 2013 to December 2015, approximately 35,314 registrants were suspended for failure to

submit documentary proof of citizenship. After being suspended, unless they produced

documentary proof of citizenship, they could not vote in state or local elections.

768 McDonald

found that nearly all were eligible citizens,769 representing “more than 14 percent of the 247,663

new registrants,” and that 22,814 registrants were later purged and were “prevented from voting

due to the documentary proof of citizenship requirement.”770 Moreover, there was a disparate

impact on young voters, who were three times more likely to be put on the suspended list.771

Eligible voters who testified at the federal trial say they were disenfranchised by Kansas’

 

762 See Appendix D for a summary of Kansas State Advisory Committee briefing. 763 KANSAS STATE ADVISORY COMMITTEE TO THE U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS AND THE 

KANSAS SECURE AND FAIR ELECTIONS ACT, 11 (Mar. 2017), http://www.usccr.gov/pubs/KS-Voting-RightsReport.pdf; see also Fish, 309 F. Supp. 3d at at 1119 (permanently enjoining the law), https://www.aclu.org/legaldocument/fish-v-kobach-findings-fact-and-conclusions-law. 764 Id. at 38. 765 Id. at 39. 766 Id. 767 Fish, 189 F. Supp 3d 1107 at 1145 n.155. 768 Ex. 1, Expert Report of Dr. Michael P. McDonald, Fish, 189 F. Supp 3d 1107, at 2-3, 

https://www.aclukansas.org/sites/default/files/field_documents/fish_v._kobach_-

_expert_report_of_dr._michael_mcdonald.pdf [hereinafter McDonald Expert Report]. 769 Id.; see also Ian Vandewalker, Analysis: The Effects of Documentary Proof of Citizenship, THE BRENNAN CENT.

FOR JUSTICE (July 19, 2017) https://www.brennancenter.org/analysis/evidence-impact-documentary-proofcitizenship-requirements (discussing McDonald study). 770 McDonald Expert Report, supra note 768 (emphasis added). 771 Id. at 3.
Chapter 3: Recent Changes in Voting Laws and Procedures 131

documentary proof of citizenship law as they were unable to vote.772 On June 18, 2018, a federal

judge agreed that their testimony was credible and struck down Kansas’ restrictions on voter

registration.773

Alabama

Alabama’s documentary proof of citizenship law was enacted in 2011 and submitted for

preclearance in 2012, and groups like the ACLU urged the DOJ not to preclear it because it would

have a “disproportionate impact on racial minorities, particularly African Americans and Latinos,

in Alabama.”774 After the Shelby County decision, the submission was withdrawn, as Alabama was

no longer subject to preclearance.775 During a briefing on Access to Voting in Alabama held on

February 22, 2018 conducted by the Commission’s Alabama SAC, John Merrill confirmed that

the state’s documentary proof of citizenship law is still on the books—but he testified that it is not

being enforced.776 He also testified that the federal Election Assistance Commission (EAC) said

that Alabama could enforce it.777

 

772 Plaintiff Donna Bucci, a 59-year old who works at the Kansas Department of Corrections, testified that she 

sought to register to vote in 2014 when she was renewing her driver’s license. She left the motor vehicle office 

believing that she had registered to vote, but later received a letter saying that she needed to show a birth certificate 

or passport. Donna has never left the county and does not have a U.S. passport. She also did not have the money to 

spend on ordering a birth certificate from the state of Maryland, where she was born. See Amrit Chang, The Trial 

Against Kobach Kicks Off, MEDIUM, ACLU (Mar. 7, 2018), https://medium.com/aclu/the-trial-against-kobach-kicksoff-heres-what-you-should-know-c70685fcf636. Also, 90-year-old Army Air Corps veteran Marvin Brown 

registered to vote by submitting a complete federal form. He was later told that while he could vote in federal 

elections, he was prohibited from voting in state and local elections unless he showed additional documentary proof 

of citizenship. See Press Release, American Civil Liberties Union, ACLU Sues Kansas Over Dual Registration 

System, ACLU (July 19, 2016), https://www.aclu.org/news/aclu-sues-kansas-over-dual-voter-registration-system. 

Current lead plaintiff Steven Fish reportedly testified in federal court on March 8, 2018: “Fish attempted to register 

to vote in August 2014, at the DMV. Upon leaving the DMV, Fish believed he was registered to vote but was 

informed via mail a month later that he must provide documentary proof of citizenship in order to complete his 

registration. Not possessing a birth certificate or other documentation at the time, he was unable to complete his 

registration.” See Zachary Mueller, Fish v. Kobach Trial—Day 2, IREHR Institute for Research and Education on 

Human Rights (Mar. 7, 2018) https://www.irehr.org/2018/03/07/fish-v-kobach-trial-day-two/. 773 Fish, 309 F. Supp. 3d, https://www.aclu.org/legal-document/fish-v-kobach-findings-fact-and-conclusions-law. 774 Jon Sherman, Katie O’Connor, and Olivia Turner, Letter from Jon Sherman and Olivia Turner, Executive 

Director ACLU of Alabama, to Christian Herren, Chief of Voting Section, ACLU, 3 (May 18, 2013), 

http://www.interfaithmissionservice.org/wp-content/uploads/2012/02/Section-5-Comment-Letter-re-SubmissionNo.-2011-537-Alabama-Proof-of-Citizenship.pdf). 775 Shelby Cty., 570 U.S. 529. Also, just after the Shelby County decision, Alabama enacted its voter ID law. See

Sherrilyn Ifill, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 at 3, 6-8 [hereinafter Ifill, 

Written Testimony]. 

776 When asked by USCCR Alabama Advisory Chair Jenny Carroll whether Alabama’s documentary proof of 

citizenship law was being enforced, Secretary Merrill stated that: “We’ve not enforced that law, even though in 

February of 2016, the Election Assistance Commission had indicated that we could ask that question.” Merrill, 

Alabama SAC, Briefing, supra note 589, at 18. 777 Id. Secretary Merrill added that: 

As a matter of fact, I got a call from a secretary in another state that told me before the ruling was actually 

made public, you need to go ahead and start implementing this. And I said, I don’t think I’ll do that. I 
132 An Assessment of Minority Voting Rights Access

In a 2014 case, Alabama and Georgia filed an amicus (friend of the court) brief in support of

Arizona and Kansas, seeking to have their states’ documentary proof of citizenship requirements

put onto the Federal Form that would be used in their states.778 The Tenth Circuit held that their

request was “plainly in conflict with the Supreme Court’s decision in Inter-Tribal Council of

Arizona.”779 Writing for the majority of the Court in Inter-Tribal Council, the late Justice Scalia

took into account that the NVRA does not require documentary proof of citizenship on the Federal

Form, but instead only required attestation of citizenship under penalty of perjury.780 And in 2015,

the Supreme Court declined to take up the case that Alabama and Georgia had supported, so the

states were not authorized to include a documentary proof of citizenship requirement for their

Federal Forms at that time.

781

But in 2016, Alabama joined Georgia and Kansas in again requesting that the language of the

Federal Form be changed to accommodate their states’ documentary proof of citizenship

requirements. According to the Associated Press, in February 2016:

Alabama Secretary of State John Merrill said in a statement he requested the

language change, which says “an applicant may not be registered until the applicant

has provided satisfactory evidence of United States citizenship.” The statement said

Merrill was “very excited and most enthusiastic” about the change. “The Office of

the Secretary of State will begin working towards implementation now that we have

received permission from the Election Assistance Commission [EAC], as well as

 

said, we’re three weeks from our election, which was the SEC primary, that we had passed legislation 

in order to get to that point. And I said, I don’t want to cause any confusion for anybody. We’re going 

to continue to do what we’ve been doing, which is what we have been doing, and we continue to do that 

to this point forward. And that’s where we’re continuing to move at this time. Id. at 18. 

778 Kobach v. U.S. Election Assistance Com’n., 772 F.3d 1183 (10th Cir. 2014), cert. denied 135 S. Ct. 2891 (2015).

Brief of Amici Curiae States of Georgia and Alabama in Support of Appellees and Affirmance of the District 

Court’s Decision, 2014 WL 3556145, at *1 (C.A.10) (Appellate Brief). The stated interests of Alabama and Georgia 

on July 7, 2014 were as follows:

The Georgia and Alabama legislatures, like the legislatures of Kansas, Arizona, and other states, have 

passed laws requiring documentary proof of citizenship from those seeking to register to 

vote. See O.C.G.A. §21-2-216(g); Ala. Code § 31-13-28(c). The Georgia and Alabama laws are 

materially identical to the Kansas and Arizona laws at issue in this case. Like all sovereign states, Georgia 

and Alabama have an interest in enforcing their duly enacted laws. Georgia, for example, has requested 

that the Elections Assistance Commission (“Commission” or “EAC”) update the state-specific 

instructions attached to the Federal Form required by the National Voter Registration Act (“NVRA”), 42 

U.S.C. §1973gg et seq., so that those instructions accurately describe Georgia law. The Commission 

denied Georgia’s request, after initially stating that it could not make a determination on the request 

because it lacked a quorum of commissioners. Id.

779 Kobach, 772 F.3d at 1188. 780 Inter Tribal Council, 570 U.S. at 4-5. 781 Kobach, 135 S. Ct. 2891.
Chapter 3: Recent Changes in Voting Laws and Procedures 133

conducting outreach campaigns to let the public know when this will go into

effect,” the statement said.782

The League of Women Voters sued, and in September 2016, a federal court preliminarily enjoined

and prohibited the EAC from changing the Federal Form to put the states’ documentary proof of

citizenship requirements on it.783 Next, EAC was ordered to make a decision on this issue

according to proper federal procedures, but EAC Commissioners were split in their opinions and

could not come to a decision;784 therefore, the preliminary injunction stands and documentary

proof of citizenship is currently not on the Federal Form in these states.

785

Commission staff verified that documentary proof of citizenship is currently not on the Alabama

state voter registration form; however, persons without a state drivers’ license or state photo ID

cannot register to vote online and must use a paper form instead.786 The documentary proof of

citizenship law is still on the books and applies to every voter registration in Alabama except those

who registered prior to September 1, 2011.787 Moreover, since the law applies to county registrars,

it could be enforced during voter registration verification procedures at the county level.788

 

782 Roxana Hegeman, Official: In Alabama, Georgia, Kansas, Voters Need Citizenship Proof, MONTGOMERY 

ADVERTISER (Feb. 6, 2016), https://www.montgomeryadvertiser.com/story/news/2016/02/05/fed-official-thosealabama-georgia-kansas-need-citizenship-proof-vote/79896934/. 783 League of Women Voters of United States v. Newby, 838 F.3d 1, 14-15 (D.C. Cir. 2016). 784 In its 2014 decision originally rejecting a similar petition from Arizona, Georgia and Kansas, the EAC considered 

that in enacting the NVRA, Congress had rejected requiring documentary proof of citizenship, and that in 1994, the 

Federal Election Commission also rejected this, finding that:

The issue of U.S. citizenship is addressed within the oath required by the Act and signed by the applicant 

under penalty of perjury. To further emphasize this prerequisite to the applicant, the words “For U.S. 

Citizens Only” will appear in prominent type on the front cover of the national mail voter registration 

form. For these reasons, the final rules do not include th[e] additional requirement [that the Federal Form 

collect naturalization information]. 59 Fed. Reg. at 32316.

U.S. ELECTION ASSISTANCE COMM’N, Memorandum of Decision Concerning State Requests to Include Additional 

Proof-of-Citizenship Instructions on the National Mail Voter Registration Form, Docket No. EAC 2013-0004, 21 

(Jan. 17, 2014), 

https://www.eac.gov/assets/1/28/20140117%20EAC%20Final%20Decision%20on%20Proof%20of%20Citizenship

%20Requests%20-%20FINAL.pdf. 785 See, e.g., The Brennan Center for Justice, League of Women Voters v. Newby, THE BRENNAN CENT. FOR JUSTICE

(Sept. 6, 2017), https://www.brennancenter.org/legal-work/league-women-voters-v-newby. 786 See Alabama Secretary of State, Online Services, Electronic Voter Registration Application, AL SOS

https://www.alabamainteractive.org/sos/voter_registration/voterRegistrationWelcome.action (last accessed May 21, 

2018).

787 ALA. CODE § 31-13-28(c) (2012) (“The county board of registrars shall accept any completed application for 

registration, but an applicant shall not be registered until the applicant has provided satisfactory evidence of United 

States citizenship. Satisfactory evidence of United States citizenship shall be provided in person at the time of filing 

the application for registration or by including, with a mailed registration application, a photocopy of one of the 

documents listed as evidence of United States citizenship in subsection (k) [requiring documentary proof of 

citizenship or an affidavit that the applicant does not possess any of the relevant documents].”). 788 ALA. CODE § 31-13-28(c)-(j).
134 An Assessment of Minority Voting Rights Access

Georgia

Georgia passed a law requiring documentary proof of citizenship to be verified for all new

registrants, which the DOJ precleared after protracted litigation in 2010.789 The law had been

opposed by black and Latino voting rights groups in the state.790 Georgia’s documentary proof of

citizenship law requires state and county election officials to verify the eligibility of any new

registrant by comparing his or her information to information in various databases; in the case of

persons who have not provided documentary proof of citizenship to the DMV (because they don’t

have a driver’s license or state photo ID, or because they procured their license before

naturalization), the state or county may ask them to provide documentary proof of citizenship.

791

Although the state says the law is currently unenforced, in a recent settlement agreement regarding

allegedly discriminatory voter registration verification procedures, the parties agreed that there

was no waiver of rights to challenge the documentary proof of citizenship statute or its

implementation.792

Tennessee

Tennessee’s voter ID law, enacted in 2011, requires documentary proof of citizenship to get the

types of IDs required to vote, including “free” voter ID issued by the state.793 In 2011, Tennessee

also passed a voter verification law that essentially requires documentary proof of citizenship. The

law requires that the statewide voter rolls be cross-referenced with other state and federal databases

to identify potential noncitizens registered to vote. The limits and inaccuracies inherent in such

data are the same as in other states discussed in depth below.794 In Tennessee, when cross

references raise a question about a voter’s citizenship status, county election officials must send

the flagged voter a notice requiring the voter to produce proof of citizenship within 30 days or be

removed from the voter rolls. Acceptable proof of citizenship includes a birth certificate, passport,

naturalization papers, or other documentation accepted by the Immigration Control and Reform

 

789 Georgia v. Holder, 748 F. Supp. 2d 16 (D.D.C. 2010). 790 See, e.g., First Amended Complaint for Declaratory Judgement, Georgia v. Holder, 2010 WL 3481380 ¶ 23 

(D.D.C. 2010).

791 Id. at ¶¶ 50-61. 792 Settlement Agreement, Georgia State Conference of the NAACP v. Kemp, No. 2:16-CV-219, at 2 (N.D. Ga. 

2016), http://www.projectvote.org/wp-content/uploads/Settlement-Agreement-NAACP-v.-Kemp-2.9.17-1.pdf

(pending stipulated settlement filing with the court).

793 See Discussion and Sources cited at notes 516 and 522, supra (and note that the law was amended to make it 

even stricter in 2013); see, e.g., Tennessee Dep’t of Safety & Homeland Security, Voter Photo ID, TN.GOV 

https://www.tn.gov/safety/driver-services/photoids.html (last accessed Aug. 8, 2018) (“If you are a registered voter and 

do not have a government-issued photo ID, the Department of Safety and Homeland Security will provide you with a photo 

ID at no charge. 

x Under the new voter ID law, in order to get a photo ID for voting purposes, voters must show the following 

documentation to a Driver Service Center examiner:

o Proof of citizenship (such as a birth certificate); and

o Two proofs of Tennessee residency (such as a copy of a utility bill, vehicle registration/title, 

or bank statement).)”

794 See Discussion and Sources cited at notes 873-86 (discussing SAVE database), infra.
Chapter 3: Recent Changes in Voting Laws and Procedures 135

Act of 1986. As previously shown, these documents are expensive and not all U.S. citizens have

them, which creates a significant barrier to voter registration with a disparate impact on minority

voters.795 In addition, “[u]nlike the laws in Arizona, Kansas and Georgia [which only apply to

new registrants], the Tennessee law will check citizenship of all registered voters.”796

Challenges of Voters on the Rolls 

Challenges to a voter’s eligibility may be brought under various state laws by either other voters

or election officials, at the polls or prior to Election Day; however, in all cases, it is election

officials who make the decision about whether to remove a person from the rolls based on a

challenge. A 2012 Brennan Center for Justice study on voter challengers states:

Twenty-four states allow private citizens to challenge a voter at the polls without

offering any documentation to show that the voter is actually ineligible. This leaves

even lawful voters vulnerable to frivolous or discriminatory challenges. Illinois, for

example, currently permits any legal voter to contest another voter’s qualifications

at the polls but does not require the challenger to offer any proof to substantiate his

or her allegations. The challenged voter, in turn, must provide two forms of

identification (or a witness known to the election judges) to establish her

qualifications before she can vote. Challengers can exploit these unequal

evidentiary burdens to intimidate or delay voters on Election Day.

797

The 2012 national study also found that, “Of the 39 states that allow polling place challenges, only

15 states require poll challengers to provide some documentation to support their claim that the

challenged voter is ineligible. Some states, like South Carolina and Virginia, even allow citizens

to make poll challenges based on the mere suspicion that a voter might be unqualified.”798 As of

2012, while states like Montana and North Carolina required affirmative evidence of the voter’s

alleged ineligibility for a challenge, 13 states merely required an affidavit from the challenger that

he or she believes his or her challenge is valid, without any evidence whatsoever except for the

challenger’s word.799 These 13 states are: Arkansas, Colorado, Florida, Indiana, Iowa, Kentucky,

 

795 Id. 796 Henderson, Citizenship Verification, Obstacle to Voter Registration and Partcipation, supra note 750; see also

Tennessee Voter Identification Act, TENN. CODE ANN. § 2-7-112. 797 Nicolas Riley, Voter Challengers, THE BRENNAN CENT. FOR JUSTICE, 1 (2012) 

https://www.brennancenter.org/sites/default/files/legacy/publications/Voter_Challengers.pdf (citing state challenge 

laws) [hereinafter Riley, Voter Challengers]. 798 Id. at 16 (emphasis in original) (citing state laws). 799 Id. at 36 n.134. Two states—Montana and North Carolina—require the poll challenger to produce actual 

affirmative evidence of the voter’s ineligibility. See MONT. CODE ANN. § 13-13-301(1) & MONT. ADMIN. R. 

44.3.2109(2) (requiring challenges to be rejected unless the challenger has proven that a voter is ineligible by a 

“preponderance of the evidence”); N.C. GEN. STAT. ANN. § 163A-918(b) (“No challenge shall be sustained unless 

the challenge is substantiated by affirmative proof. In the absence of such proof, the presumption shall be that the 

voter is properly registered or affiliated.”).
136 An Assessment of Minority Voting Rights Access

Maine, Maryland, Minnesota, New Hampshire, New Jersey, Nevada, and Virginia.800 Moreover,

the day after the Shelby County decision, in HB 589, North Carolina changed its rules to permit

Election Day challenges of voters who do not present photo ID.801 This change was not litigated

as part of NC NAACP v. McCrory’s claims against other provisions of HB 589, discussed in depth

in Chapter 2 above; however, there is current, ongoing litigation regarding discriminatory

implementation and other aspects of North Carolina’s challenge laws.802

Moreover, a nationwide consent decree protecting voters from the discriminatory use of voter

challenge practices expired in December 2017.803 The consent decree,804 with its prohibitions

against discriminatory voter challenges and intimidating measures aimed at minority voters,805 was

subsequently enforced in several states.806

 

800 Id. (“Thirteen other states require the challenger to produce an affidavit but do not require any additional proof 

from the poll challenger beyond his or her word that the challenge is valid. See ARK. CODE ANN. § 7-5-312(h); 

COLO. REV. STAT. § 1-9-202; FLA. STAT. ANN. § 101.111(1); IND. CODE ANN. § 3-11-8-21; IOWA CODE ANN. § 

49.79; KY. REV. STAT. ANN. §§ 117.245(2), 117.316(2); ME. REV. STAT. ANN. tit. 21-A, § 673(1); MD. CODE, ELEC.

LAW, § 10-312; MINN. STAT. ANN. § 204C.12(2); N.H. REV. STAT. ANN. § 659:27-a; N.J. STAT. ANN. § 19:15-18.2; 

NEV. REV. STAT. ANN. § 293.303(1); VA. CODE ANN. § 24.2-651.”). 801 H.R. 589, § 163-87, 2013-2014 Gen. Assemb. (N.C. 2013), 

https://www.ncleg.net/Sessions/2013/Bills/House/PDF/H589v0.pdf (challenges allowed on day of primary or 

election). 

802 See Discussion of N. Carolina State Conference of the NAACP v. N. Carolina State Bd. of Elections, No. 1:16-

CV-1274, 2016 WL 6581284 (M.D.N.C. Nov. 4, 2016) infra notes 841-46. 803 Democratic National Committee v. Republican National Committee (“DNC v. RNC”), No. 2:81-CV-03876 

(D.N.J. 2009) (requiring the expiration of the consent decree on Dec. 1, 2017), 

https://www.brennancenter.org/page/-/Democracy/DNC%20v%20RNC%20-%20Order.pdf at 3. 804 The consent decree originated after a complaint was filed alleging that approximately 45,000 voters were 

wrongfully challenged in predominantly black and Latino precincts in New Jersey in 1982; it alleged violations of 

the VRA and the U.S. Constitution. Complaint, DNC v. RNC, No. 2:81-CV-03876, ¶¶ 35-40 (D.N.J. 2009) (alleging 

violations of the 14th and 15th Amendments, and Sections 2 and 11(b) of the VRA). 805 The resulting consent decree settled the constitutional and VRA claims and the prohibited discriminatory voter 

challenges. Among other provisions, the consent decree required that both major political parties ensure that state 

challenge laws would be implemented in a fair and nondiscriminatory manner, and that individual poll watchers 

(appointed by the parties) would not harass or discriminate against voters at the polls. Settlement Stipulation and 

Order of Dismissal, DNC v. RNC, No. 2:81-CV-03876 (D.N.J. 1987), https://www.brennancenter.org/page/-

/Democracy/dnc.v.rnc/1987%20consent%20decree.pdf; Consent Order, DNC v. RNC, No. 2:81-CV-03876 (D.N.J. 

Nov. 1, 1982), https://www.brennancenter.org/page/-/Democracy/dnc.v.rnc/1982%20consent%20decree.pdf. In 

1987, after extensive allegations of voter caging and discriminatory challenges in several states, and “more than 50 

depositions taken and thousands of documents examined,” the DNC and the RNC agreed to make their agreement 

nationwide, and the court therefore entered a nationwide consent decree. Settlement Stipulation and Order of 

Dismissal, DNC v. RNC, No. 2:81-CV-03876 (D.N.J. 1987), https://www.brennancenter.org/page/-

/Democracy/dnc.v.rnc/1987%20consent%20decree.pdf. 806 In 2012, the U.S. Court of Appeals for the Third Circuit noted that:

In Louisiana during the 1986 Congressional elections, the RNC allegedly created a voter challenge list 

by mailing letters to African-American voters and, then, including individuals whose letters were 

returned as undeliverable on a list of voters to challenge. A number of voters on the challenge list brought 

a suit against the RNC in Louisiana state court. In response to a discovery request made in that suit, the 

RNC produced a memorandum in which its Midwest Political Director stated to its Southern Political 
Chapter 3: Recent Changes in Voting Laws and Procedures 137

A nationwide review of state challenge laws is beyond the scope of this report. Yet as discussed

below, there is evidence that current conditions include discriminatory challenge provisions in

several states across the nation.807 The evidence collected and analyzed below demonstrates that

such challenges may be used to intimidate voters of color.808

The DOJ objected to discriminatory challenge procedures under Section 5.809 Moreover, the

historical origins of challenge lawsshow that they were originally intended to suppressthe political

participation of people of color,810 and that they were part of the “first-generation” restrictions to

 

Director that “this program will eliminate at least 60,000-80,000 folks from the rolls . . . . If it’s a close 

race . . . which I’m assuming it is, this could keep the black vote down considerably.” Democratic Nat. 

Comm. v. Republican Nat. Comm., 673 F.3d 192, 197 (3d Cir. 2012).

807 See Discussion and Sources cited below, infra notes 821-28 (Georgia); 830-32 (New York); 835-43 (North 

Carolina); and 847-850 (Ohio). 808 Id. 809 For example, the DOJ objected to changes in challenge and voter removal procedures in Alabama in 1981 and 

1984. See U.S. Dep’t of Justice, Letter from Bradford Reynolds, Asst. Att’y Gen., Dept. of Justice Civil Rights 

Division, to Hon. Floyd R. Cook, Chairman Perry County Court Commission (Sept. 25, 1981), 

https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/AL-1450.pdf) (DOJ denying proposed county 

purge and re-identification of voters); see also U.S. Dep’t of Justice, Letter from Bradford Reynolds, Asst. Att’y 

Gen., Dept. of Justice Civil Rights Division, to Hon. F.R. Albritton Jr., Probate Judge (Oct. 26, 1981), 

https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/AL-1480.pdf) (DOJ denying proposed county 

purge and re-identification of voters). The DOJ intervened under the provisions of Section 5 on behalf of a 

Vietnamese fishing community in Bayou Le Batre, Alabama in 2004, where for the first time, an Asian-American 

candidate ran for mayor. Many Asian-American citizens had their ballots challenged, and “[n]early 50 of them were 

forced to fill out paper ballots and have another registered voter vouch for them.” See also DeWayne Wickham, Why 

Renew the Voting Rights Act: Alabama Town Provides Answer, USA TODAY (Feb. 22, 2006) 

http://usatoday30.usatoday.com/news/opinion/editorials/2006-02-22-forum-voting-act_x.htm (discussing Lawyer’s 

Committee for Civil Rights Under Law report) [hereinafter Wickham, Why Renew]. Vouchers are prohibited under 

the Voting Rights Act. 52 U.S.C. § 10501 provides that: 

(a) No citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any 

Federal, State, or local election conducted in any State or political subdivision of a State.

(b) As used in this section, the term “test or device” means any requirement that a person as a prerequisite for 

voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) 

demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral 

character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.

The voter challenges came from supporters of the white mayoral candidate, and they alleged that Asian-American 

voters were criminals, were not residents, and were not citizens. Wickham, Why Renew, supra. One challenger told 

the press that “we figured if they couldn’t speak good English, they possibly weren’t American citizens.” Id.

Although there were no changes to voting rights law that required preclearance under Section 5, the discriminatory 

abuse of existing law prompted the DOJ to send observers. Id. The observers were able to prevent further challenges 

and ensure that these citizens could exercise their right to vote inside the polls, despite the threat of racially 

discriminatory challenges. Id. 810 See Riley, Voter Challengers, supra note 797, at 7 (“These origins cast doubt on whether challenger laws were 

always enacted to prevent election fraud. In some states, lawmakers first empowered private citizens to challenge 

voters at the polls only because they believed it would be an effective way to suppress voter turnout in black, Latino, 

or working-class communities. The legislative record in these states indicates that challenger laws were often 

enacted, amended, and used not for the purpose of preventing fraud but, rather, to disenfranchise voters of color. 

Even in states where challenger laws were not passed with an obviously discriminatory purpose, they were still often 
138 An Assessment of Minority Voting Rights Access

access to the ballot that the VRA of 1965 was enacted to prevent going forward.811 But due to the

current lack of preclearance as well as the lack of federal observers, this problem is harder to detect

in the post-Shelby County era. 812

The Commission also notes that because challenges are made by private citizens, they are initiated

by persons not subject to the same training as poll workers.813 Also, letters are commonly issued

when voters are challenged and/or purged.814 As of 2012, 16 states had laws that required

challenged voters to respond to the challenge letter before the challenge is vetted by election

officials, and in seven of those states, challenged voters are required to provide an affirmation or

come to a hearing regarding these unconfirmed challenges prior to or on Election Day.815At times,

challenge letters have been threatening, implying that a person could be committing a felony.816

Depending on state or local law and the type of challenge, challenged voters typically have to

appear at a hearing, or provide documentary proof of their eligibility in person at their local boards

of elections office within a short period of time, if they want to exercise their right to vote without

being arrested.817 If they do not have time or do not receive the notice, they are unlikely to be able

 

enacted in an era when voting qualifications were closely tied to physical characteristics, like race and sex, which 

private citizens could easily use to identify unqualified voters at the polls.”). 811 See, e.g., Shelby Cty., 570 U.S. at 546-47 (discussing “first-generation” barriers or “tests and devices” regarding 

that the VRA was passed to address).

812 Briefing Transcript, supra note 234, at 42 (statement by Peyton McCrary) (noting that that one “dramatic 

consequence” of the lack of federal observers inside the polls since Shelby County is that DOJ is no longer able “to 

observe ways in which voters might be unable or challenged unlawfully in exercising their right to vote[.]”). 813 See, e.g., Riley, Voter Challengers, supra note 797, at 1 (citing state challenge laws). 814 See Discussion of Arcia v. Detzner litigation, infra notes 869-81. 815 See, e.g., Riley, Voter Challengers, supra note 797, at 16. 816 See Letter from Kathy Dent, Sarasota County Supervisor of Elections (Oct. 18, 2012) (on file), stamped with the 

word “fraud”, and stating that:

The Sarasota County Supervisor of Elections has received information from the Florida Division of 

Elections regarding your citizenship status, bringing into question your eligibility as a registered voter. 

Per Florida law, only U.S. Citizens are allowed to register to vote. In addition, registering to vote under 

fraudulent conditions or swearing a false oath are both third degree felonies in Florida. (Citations to 

Florida law omitted.) 

817 See, e.g., id. Letters sent in Florida in 2012 stated that:

If the information from the Florida Division of Elections is Inaccurate regarding your citizenship status 

or if your citizenship status has recently changed, please stop by our main office with any original

documentation that demonstrates U.S. citizenship. Do not mail these documents. You may want to call 

us prior to visiting our main office. Also, you may request an administrative hearing with the Supervisor 

of Elections to prove U.S. citizenship.

You must complete the attached Voter Eligibility Form and return it to the Supervisor of Elections within 

15 days of receipt. Failure to submit this form within 15 (15) days will result in the removal of your 

name from the voter registration rolls and you will no longer be eligible to vote. A nonregistered voter 

who casts a vote in the State of Florida may be subject to arrest, imprisonment, and/or other criminal 

sanctions. Id.
Chapter 3: Recent Changes in Voting Laws and Procedures 139

to vote on Election Day. When they arrive at the polls, they are subjected to the challenge and may

be unprepared. Recent examples of these types of practices in several states are summarized below.

Georgia

Prior to the Shelby County decision, there were no known objections under Section 5 regarding

voter challenge procedures in Georgia.818 The Department of Justice brought a Section 2 VRA

enforcement action against Georgia regarding discriminatory challenges in which Latino voters

were required to attend a hearing and prove their citizenship, which was settled by consent

decree819 in February 2006.820

At the Commission’s briefing, Ezra Rosenberg testified that since the Shelby County decision, in

2015:

Hancock County, Georgia changed its process to initiate a series of “challenge

proceedings” to voters, all but two of whom were African American that resulted

in the removal of 53 voters from the register. Later that year, the Lawyers’

Committee for Civil Rights Under Law, representing the Georgia State Conference

of the NAACP and the Georgia Coalition for the Peoples’ Agenda and individual

voters, challenged this conduct as violating the VRA and the National Voter

Registration Act (NVRA), and obtained a preliminary injunction, which resulted in

the ordering of the wrongfully removed voters back on the register.821

After litigation, plaintiffs and Hancock County entered into a consent decree subjecting the County

to judicial monitoring of its compliance for five years. In the consent decree, defendants

“strenuously deny” that the challenge practices targeted African-American voters, but they do

acknowledge a conflict between the NVRA’s requirements that voters may not be removed from

the rolls without notice and due process, and Georgia’s state laws allowing challenged voters to

 

818 DOJ, Georgia Voting Determination Letters, supra note 727. 819 Wex Legal Dictionary defines a consent decree as: “A court order to which all parties have agreed. It is often 

done after a settlement between the parties that is subject to approval by the court.” See Wex Legal Dictionary, 

Consent Decree, CORNELL L. S. https://www.law.cornell.edu/wex/consent_decree (last accessed Aug. 3, 2018). 820 United States v. Long Cty., No. 2:06-CV-00040 (S.D. Ga. 2006),

https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/long_cd.pdf (last accessed Aug. 3, 2018). 821 Rosenberg, Written Testimony, supra note 651, at 3 (discussing Complaint, Georgia State Conference of NAACP 

v. Hancock Cty. Bd. of Elections & Registration, No. 5:15-CV-00414 (M.D. Ga. 2015) (see ¶ 1, challenging 

improper and racially biased challenges preceding the City of Sparta’s municipal election of Nov. 3, 2015 as 

violating the VRA, the Civil Rights Act of 1964, and the U.S. Constitution, https://lawyerscommittee.org/wpcontent/uploads/2016/01/Hancock-Co-Complaint.pdf)). 
140 An Assessment of Minority Voting Rights Access

be removed immediately.822 Specifically, the Hancock County Board of Elections (BOER)

recognized the supremacy of federal law823 and agreed that:

Any actions taken to implement the BOER’s [new, formally adopted] procedures

and guidelines [for conducting voter challenges and list maintenance activities]

must comply with state and federal law, including but not limited to . . . the Voting

Rights Act of 1965, the National Voter Registration Act of 1993, the Civil Rights

Act of 1964, and the Constitutions of the United States and the State of Georgia.824

The Consent Decree included numerous other provisions to ensure that challenges should be

nondiscriminatory and that voters who have moved within their precinct or within the county, or

who simply did not respond to a mailing, should not be removed from the rolls.825 Section 5

preclearance procedures could have stopped Georgia’s recent challenge and voter removal

procedures, if the DOJ or a federal court found that they had a retrogressive, discriminatory effect.

Because the Section 2 claim was settled and the state “strenuously denied” that their practices

targeted African-American voters, it is impossible to state whether the procedures were racially

discriminatory or not.826 Still, all but two voters who were challenged in Hancock County were

black,827 and the Consent Decree and subsequent federal court approval of attorneys’ fees indicate

that steps were needed to ensure compliance with federal voting rights law.

828 Prior to the Shelby

County decision, if these challenge procedures were not precleared, the challenged voters would

have never received the challenge letters and would all have been able to vote. Of course, if the

jurisdiction did have a legal reason to challenge a voter’s eligibility, the NVRA and VRA provide

for list maintenance and removal of ineligible voters. However, federal law requires that it should

not be done without adequate civil rights protections.829

New York

According to the New York State Attorney General, in 2015, in Orange County, New York, thirty

Chinese Americans, many of whom were college students, had their registration challenged and

were removed from the voting rolls, and the state Attorney General entered into an agreement to

resolve their complaint of discriminatory treatment and harassment. An individual had challenged

the citizenship and residency of these voters without any basis, yet under a state challenge law that

 

822 Consent Decree, Georgia State Conference of NAACP v. Hancock Cty., No. 5:15-CV-00414 (M.D. Ga. 2017); 

Order on Joint Motion for Entry of Consent Order and Plaintiff's Motion for Attorneys’ Fees, Georgia State 

Conference of NAACP v. Hancock Cty., No. 5:15-CV-00414, 2018 WL 1583160 (granting joint motion for entry of 

consent order and approving attorneys’ fees). 823 Id. at *1. 824 Consent Decree, Georgia State Conference of NAACP, 2018 WL 1583160 at ¶¶ 16-17. 825 Id. (passim.) 826 Id. at *1. 827 Order on Joint Motion, Georgia State Conference of NAACP, 2018 WL 1583160 at 2. 828 Consent Decree, Georgia State Conference of NAACP v. Hancock Cty., 2018 WL 1583160S. 829 See Discussion and Sources cited at notes 729-31, supra, and notes 855, 862 and 870-71, infra.
Chapter 3: Recent Changes in Voting Laws and Procedures 141

requires a reason be provided.830 The County Board of Elections subsequently removed these U.S.

citizen voters from the rolls after the Orange County Sheriff’s Office incorrectly stated the students

were not citizens.831 Moreover, according to the State Attorney General,

the Board failed to provide the students with notice and opportunity for hearing, as

required by New York election law. The Board also placed undue burdens on a

number of the other students, advising them to bring their passports to the polls on

Election Day to demonstrate their eligibility to vote, even though the law does not

permit the Board to require passports as proof of identity or eligibility.832

North Carolina

Prior to the Shelby County decision, there were no DOJ objections regarding challenge procedures

in North Carolina.833

Jay Delancy, partner and principal director of North Carolina’s Voter Integrity Project, shared

during the North Carolina briefing public comment period that:

In 2012, we . . . presented evidence of 147 people who voted in two or more states

in the 2012 general elections. Besides a paltry three felony prosecutions, the only

award election officials gave us for this groundbreaking research was to bog down

on the published data. This way nobody could ever embarrass them again.

On another occasion we challenged more than five hundred Wake County voters

who were disqualified from jury duty after telling the Court they were not Wake

County citizens. The only vote we got from election officials was to deny our

evidence and deny our challenges. This was after the DMV had confirmed the

 

830 Press Release, N.Y. State Att’y. General, A.G. Schneiderman Secures Agreement With Orange County Board Of 

Elections To Ensure Equal Access To The Ballot Box For Minority And Student Voters (Oct. 29, 2015), 

https://ag.ny.gov/press-release/ag-schneiderman-secures-agreement-orange-county-board-elections-ensure-equalaccess. 831 Id. 832 Id. Han Ye, one of the impacted students, stated that:

I am a twenty-one year old college student. This was my first time voting in an election. I was shocked 

and confused when my voter registration was challenged, because I am an American citizen. Like 

some of the other students whose voter registrations were challenged, my family came to America to 

escape discrimination and persecution in China. Some of our family and friends were put in jail or 

killed because they practiced the Falun Dafa religion. I did not expect to see discrimination like this in 

America. The whole experience was really hurtful. I am relieved that the Office of the Attorney 

General is working on this and that the voter challenges are resolved. I do not want this to happen 

again to anyone like me who just wants to vote. Id.

833 See U.S. Dep’t of Justice, Voting Determination Letters for North Carolina, https://www.justice.gov/crt/votingdetermination-letters-north-carolina (last updated Aug. 7, 2015). 
142 An Assessment of Minority Voting Rights Access

accuracy from our cases. The courts reinvented new rules to prevent our further

research in this area.834

At the briefing, Al McSurely commented during the public comment period that the allegations

made by Delancy were false and that they had been challenged in a lawsuit alleging violations of

Section 2 of the VRA.835 Notwithstanding Delancy’s charge that North Carolina county officials

were nonresponsive to such challenges, the lawsuit’s records reflect that in Beaufort County, one

individual challenged 138 registered voters, of whom 59 were active voters; this challenge resulted

in 63 voters being purged from the rolls, including an elderly man who had moved to a nursing

home and a 100-year-old woman who does not have a mailbox at her house.836 Similarly, the

lawsuit records show that in Moore County, North Carolina, an individual challenged about 400

registered voters, and in Cumberland County, “one individual challenged the voter registration of

approximately 4,000 voters after mailings by this private individual were returned

undeliverable.”837

Under North Carolina law, any registered voter of a county may make challenges within 25 days

of a primary, general, or special election.838 Moreover, under North Carolina law: “The

presentation of a letter mailed by returnable first-class mail to the voter at the address listed on the

voter registration card and returned because the person does not live at the address shall constitute

prima facie evidence that the person no longer resides in the precinct.”839 North Carolina challenge

law provides that every voter who is challenged must attend a hearing, or the voter will be removed

from the voting rolls.840

In 2016, the North Carolina NAACP brought a Section 2 VRA suit in federal court regarding these

very challenge procedures, after the Voter Integrity Project and private individuals sent mail

correspondence to voters, asking them to verify their address.841 The NAACP sued the State Board

of Elections on behalf of voters who did not return the postcard verifying their address, who had

been purged from the voting rolls after these private parties had sought their removal, and election

officials felt they were legally obliged to remove them.

842

 

834 Briefing Transcript, supra note 234, at 267-68 (statement by Jay Delancy). 835 Briefing Transcript, supra note 234, at 318-19 (statement by Al McSurely). 836 N. Carolina State Conference of the NAACP v. N. Carolina State Bd. of Elections, 106 U.S. Dist. LEXIS 153249, 

No. 1:16-CV-1274 (M.D.N.C. 2016) at 3-4. 837 Id. at 4-5. 838 N.C. GEN. STAT. § 163A-911(a). 839 N.C. GEN. STAT. § 163A-911(e). 840 N.C. GEN. STAT. § 163A-911(d) (“When a challenge is made, the county board of election shall schedule a 

preliminary hearing on the challenge, and shall take such testimony under oath and receive such other evidence 

proffered by the challenger as may be offered. The burden of proof shall be on the challenger, and if no testimony is 

presented, the board shall dismiss the challenge. If the challenger presents evidence and if the board finds that 

probable cause exists that the person challenged is not qualified to vote, then the board shall schedule a hearing on 

the challenge.”).

841 N. Carolina State Conference of the NAACP, No. 1:16-CV-1274 at 1-3; see also N.C. GEN. STAT. § 163A-911. 842 N. Carolina State Conference of the NAACP, No. 1:16-CV-1274 at 1-3.
Chapter 3: Recent Changes in Voting Laws and Procedures 143

Just four days before the November 2016 presidential election, the North Carolina NAACP won a

preliminary injunction against the State Board of Elections to stop their removals of voters based

on the above-described challenged procedures.

843 Associated Press reported that presiding Judge

Loretta Biggs commented that, “This sounds like something that was put together in 1901.”844

North Carolina county boards of election since argued for a motion to dismiss the claims based on

lack of standing, which was denied in September 2017, and a hearing on the merits regarding

whether the challenge practices violated Section 2 of the VRA, the 14th Amendment, and the list

maintenance rules of the NVRA, is currently pending.

845

During the public comment period of the briefing in North Carolina, the Commission heard from

NAACP branch president Olinda Watkins, who spoke about the intimidation the black community

has felt from voter challenges over the years, and spoke of the story of one plaintiff, 100-year-old

Grace Bail Hardison; Watkins said that “I will share just one voter suppression story out of the

many.”846

Ohio

In 2012, in Ohio, Teresa Sharp, an African-American homemaker who has voted for over 30 years,

received a letter stating, “You are hereby notified that your right to vote has been challenged by a

qualified elector under RC 3503.243505.19.”847 Her husband, children, and elderly aunt, who all

reside at the same address, received similar letters from the Hamilton County Board of Elections—

the letters were prompted by the Ohio Integrity Project, an affiliate of True the Vote.848 True the

Vote’s founder, Catherine Engelbrecht, reportedly “conceded that the group’s software program

flags addresses with a high number of registered voters. When asked if the system was biased

against people who live in multi-generational homes, she said, ‘That’s the way we segment data

just because it is an all-volunteer group that has only limited time.’”849

Census data analyzed by the PEW Research Center show that relatively more people of color live

in multi-generational households:

 

843 Id. at 9-18 (preliminary injunction was issued on November 4, 2016, based on the likelihood that the State 

Elections Board practices violated the NVRA’s prohibitions against systemic removal of voters within 90 days of 

any federal election, as well as its requirements that before removing any voter, they must be provided with 

adequate notice and an opportunity to respond, and that they may not be permanently removed until two federal 

election cycles have passed.). 

844 Martha Waggoner and Jonathan Drew, Judge: North Carolina voter challenge process seems ‘insane,’

ASSOCIATED PRESS (Nov. 2, 2016), https://apnews.com/dcb7fbc3538547559c1c9a5cd6586b11. 845 N. Carolina State Conference of NAACP v. N. Carolina State Bd. of Elections, 283 F. Supp. 3d 393, 403 

(M.D.N.C. 2017).

846 Briefing Transcript, supra note 234, at 294-95 (statement by Olinda Watkins). 847 Dan Harris and Melia Patria, Is True the Vote Intimidating Minority Voters From Going to the Polls?, ABC

NEWS (Nov. 2, 2012), https://abcnews.go.com/Politics/true-vote-intimidating-minority-voterspolls/story?id=17618823. 848 Id. 849 Id.
144 An Assessment of Minority Voting Rights Access

Figure 7: Multigenerational Households by Race, 2009-2016850

Source: Pew Research Center (analysis of the 2009 and 2016 American Community Surveys).

Purges of Voters From the Rolls

Due to allegations of ineligible voters being on the voting rolls, voter list maintenance851 has been

the subject of heightened debate in recent years. This section will examine removal procedures or

“purges” of voters from the rolls that have a negative impact on minority voters in the current era.

In August 2016, News21 conducted an analysis of voter “lists of nearly 50 million registered voters

from a dozen states, and 7 million more who were removed over the last year,” and found no

pattern of discriminatory impact on a national level.852 However, the nature of purges in certain

 

850 D’Vera Cohn & Jeffrey S. Passel, A Record 64 Million American Lives in Multigenerational Households, PEW 

RESEARCH CENTER (Apr. 5, 2018), http://www.pewresearch.org/fact-tank/2018/04/05/a-record-64-millionamericans-live-in-multigenerational-households/ (last accessed May 25, 2018). 851 List maintenance is the general practice of removing registered voters from the voter rolls for known, alleged, or 

suspected ineligibility. 52 U.S.C. § 20507. 

852 Sean Holstege, America Scrubs Millions From the Rolls. Is It Fair?, NEWS21 (Aug. 20, 2016) 

http://votingwars.news21.com/america-scrubs-millions-from-the-voter-rolls-is-it-fair/. 
Chapter 3: Recent Changes in Voting Laws and Procedures 145

states discussed below shows that discriminatory purges may occur on the local level.853 The

Commission examined recent voter purges in Florida, Georgia, North Carolina, Ohio, and

Pennsylvania, and threats of using inaccurate data about citizenship that disparately targets voters

of color in Arkansas, Colorado, and Iowa. The Commission also notes that Kansas and the 26 other

states that are party to its “Crosscheck” system, which was described and examined in detail above,

risk discriminatory purging of eligible voters from the rolls.854

The cases and types of voter purges discussed herein may negatively impact the ability of minority

voters to participate in the political process, implicating Section 2 and Section 5 issues, as well as

the materiality provision of the VRA.

855

Purging Based on Alleged Voter Ineligibility (Florida)

From 2000-2012, Florida was repeatedly charged with allegations that it engaged in systemic

purges impacting voters of color. This is a subject that the Commission examined in the 2000

report Voting Irregularities in Florida During the 2000 Presidential Election,

856 which after

careful examination of purges of voters in Florida found that both the method of the purge and its

outcome directly and negatively impacted black voters. Moreover, the Commission found credible

evidence that “the human consequences” of Florida’s 2000 voter purge program, which was based

on inaccurate data about alleged felony convictions, were severe and disparately impacted black

voters.

857

 

853 Id. (noting that the “data did show that purges disproportionately affected minority or low-income voters in 

certain communities, and white voters in others.”). 

854 See Discussion and Sources cited at notes 648-59, supra (including data regarding discriminatory impacts). 855 Browning, 569 F. Supp. 2d at 1241 n.3 (citing 42 U.S.C. § 1971(a)(2)(B)) (transferred to 52 U.S.C. § 

10101(a)(2)(B)).

856 U.S. COMM’N ON CIVIL RIGHTS, (2001) VOTING IRREGULARITIES IN FLORIDA DURING THE 2000 PRESIDENTIAL 

ELECTION: CH. 5 THE REALITY OF LIST MAINTENANCE, http://www.usccr.gov/pubs/vote2000/report/ch5.htm (last 

accessed Aug. 7, 2018).

857 Id. In addition: 

Professor Darryl Paulson testified that the Hillsborough County supervisor of elections estimated that 

15 percent of those purged were purged in error and they were disproportionately African American. 

According to Professor Paulson, another source estimated that 7,000 voters, mostly African Americans 

and registered Democrats, were removed from the list.

According to news reports, even those who had received a full pardon for their offenses were listed on 

DBT’s exclusion list.

Reverend Willie Dixon, a Tampa resident, received a full pardon for drug offenses in 1985, and has 

since become a youth leader, a bible preacher, and a “pillar of the Tampa African American 

community who has voted in every presidential election.” But despite his 15 years of voting status, 

Pam Iorio, the supervisor of elections for Hillsborough County, sent Reverend Dixon a letter informing 

him that he had been removed from the rolls because of a prior conviction. Eventually, Reverend 

Dixon was able to verify his status as a registered voter.
146 An Assessment of Minority Voting Rights Access

The Commission also found that most voters who were removed were in fact eligible, that

“countless” Floridians were denied their right to vote, and that “disenfranchisement of Florida

voters fell most harshly on the shoulders of African Americans.”858 In the next presidential election

cycle, in 2004, Florida conducted an extremely similar purge targeting persons with felony

convictions with a reported discriminatory impact on black voters.859

In 2007, Florida passed a new law requiring that a voter registration applicant’s driver’s license or

Social Security Number be verified with an exact match to the voter’s name, before the voter could

be registered. Implementation of this new law, challengers of the law alleged, that its

implementation resulted in more than 11,000 citizens whose registration was kept from the rolls

in 2008, with “a substantial differential impact on minority citizens.”860 A Complaint also alleged

that under the exact match system:

A citizen registering as “Bill” might not “match” if his Social Security number is

issued under “William.” A woman’s married name might not match against a

database where she is listed under her maiden name. Haitian-American and other

Latino citizens who use compound names like “Jean-Robert Martin” or “Gabriel

García Márquez” may find themselves with part of their first or last name listed as

a middle name and unable to be matched.861

 

Media accounts also captured the impact of list maintenance activities and the frustration they caused 

for Florida voters. 

Wallace McDonald, in 1959, was convicted of a misdemeanor, vagrancy, for falling asleep on a bench 

in Tampa while he waited for a bus. In 2000, Mr. McDonald received a letter from Ms. Iorio informing 

him that as an ex-felon, his name had been removed from the rolls. Despite the efforts of his attorney 

to correct the problem, Mr. Wallace was not allowed to vote. Mr. McDonald stated:

I could not believe it, after voting all these years since the 50s, without a problem . . . I knew 

something was unfair about that. To be able to vote all your life then to have somebody reach in a bag 

and take some technicality that you can’t vote. Why now? Something’s wrong. Id. 

858 U.S. COMM’N ON CIVIL RIGHTS, (2001) VOTING IRREGULARITIES IN FLORIDA DURING THE 2000 PRESIDENTIAL 

ELECTION: CH. 9 FINDINGS AND RECOMMENDATIONS, http://www.usccr.gov/pubs/vote2000/report/ch9.htm (last 

accessed Aug. 7, 2018).

859 Ford Fessedon, Florida List for Purge of Voters Proves Flawed, N.Y. TIMES (July 10, 2004), 

http://www.nytimes.com/2004/07/10/us/florida-list-for-purge-of-voters-proves-flawed.html. In 2004: 

Of nearly 48,000 Florida residents on the felon list, only 61 are Hispanic. By contrast, more than 

22,000 are African-American. About 8 percent of Florida voters describe themselves as Hispanic, and 

about 11 percent as black. In a presidential-election battleground state that decided the 2000 race by 

giving George W. Bush a margin of only 537 votes, the effect could be significant: black voters are 

overwhelmingly Democratic, while Hispanics in Florida tend to vote Republican[.]

A spokeswoman for the Florida Department of Law Enforcement, Kristen Perezluha, said the felon database 

used F.B.I. criteria for judging race and so never listed Hispanic. Id.

860 The Brennan Center for Justice, Florida NAACP v. Browning, THE BRENNAN CENT. FOR JUSTICE (Oct. 23, 2008), 

https://www.brennancenter.org/legal-work/florida-naacp-v-browning [hereinafter Brennan Cent., Florida NAACP]. 861 Id.
Chapter 3: Recent Changes in Voting Laws and Procedures 147

In December 2007, a federal district court issued a preliminary injunction under the 1st and 14th

Amendments of the U.S. Constitution, as well as HAVA, NVRA, and the materiality provision of

the VRA, under which no person shall be denied the right to vote “because of an error or omission

on any record or paper relating to any application . . . not material in determining whether such

individual is qualified under State law to vote in such election.”862 The court granted the state’s

motion to dismiss the Section 2 claim,863 and over 14,000 otherwise eligible citizens were put back

on the rolls prior to the presidential primary, while the Eleventh Circuit Court of Appeals then

reversed the lower court’s preliminary injunction in April 2008.864 The law was later amended,

and based on the more accessible new procedures, the parties dismissed the case.865

In 2012, Florida attempted to purge thousands of voters of color—the majority of whom were

Latino—based on inaccurate allegations that they were not citizens. The state initially created a

list of 182,000 alleged noncitizens by comparing the voting rolls to drivers’ license databases,

which is an extremely faulty method as drivers’ license databases do not reflect citizenship, then

cut it back to approximately 2,600.

866 Litigation in the case of Mi Familia Vota v. Detzner showed

that this change in voting procedures should have been submitted for preclearance as a statewide

change impacting formerly covered counties in Florida under Section 5.

867 The court rejected a

motion to dismiss, explaining that Florida’s use of the database to discover noncitizens was “done

in connection with its efforts to maintain voter registration rolls;” however, the case was dismissed

a year later, after Shelby County suspended preclearance.868

The great majority of voters on Florida’s 2012 purge list were people of color. The data in a federal

complaint alleging Section 2 violations (based on Florida voter registration data) showed that 87

percent were voters of color: 61 percent were Hispanic (whereas 14 percent of all registered voters

in Florida were Hispanic); 16 percent were black (whereas 14 percent of all registered voters were

 

862 Browning, 569 F. Supp. 2d 1237 at 1241 n.3 (citing 42 U.S.C. § 1971(a)(2)(B)) (transferred to 52 U.S.C. § 

10101(a)(2)(B)). 863 See Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1159 (11th Cir. 2008). 864 Id. 865 Brennan Cent., Florida NAACP, supra note 860 (discussing amendment and dismissal). 866 See Answer at 20, United States v. Florida, No. 4:12-CV-00285 (N.D. Fla. July 3, 2012); Answer at 24, 43, Arcia 

v. Detzner, No. 1:12-CV-22282 (S.D. Fla. July 12, 2012). Florida developed a list of more than 180,000 potential 

noncitizen voters by comparing data from its motor vehicle agency with the state voter file. As acknowledged by the 

state, many individuals who presented legal immigration documents in the past (e.g., when first obtaining a driver’s 

license) may have since become citizens and are thus properly registered to vote. Florida then went ahead and sent 

an initial 2,600 voters from its purge list to county Supervisors of Elections with instructions on how to investigate 

and remove them from the rolls within a short period of time. Evidence quickly showed that the methods used by 

state officials were flawed and some county supervisors from both political parties refused to implement the purge. 867 Mi Familia Vota Educ. Fund v. Detzner, 891 F. Supp. 2d 1326, 1332-34 (M.D. Fla. 2012), 

https://www.clearinghouse.net/chDocs/public/VR-FL-0168-0008.pdf; see also Allen, 393 U.S. at 565, 567 (1969) 

(recognizing that Congress intended to give the VRA the “broadest possible scope” and that Section 5 reaches 

“subtle, as well as obvious” state laws that have the effect of or intent to disenfranchise minority voters); Presley v. 

Etowah Cty. Comm’n, 502 U.S. 491, 501 (1992) (reaffirming Allen and stating that “all changes in voting must be 

precleared” and that the “sphere” of Section 5 includes “all changes to rules governing voting”). 

868 Detzner, 891 F. Supp. 2d at 1333.
148 An Assessment of Minority Voting Rights Access

black); 16 percent were white (whereas 70 percent of registered voters were white); and 5 percent

were Asian American (whereas only 2 percent of registered voters were Asian).869 Shortly after

the complaint alleging violations of Section 2 of the VRA was filed, the state settled the Section 2

claim and stipulated to the settlement before a federal court.870 Florida also stopped this method

of purge before Election Day, but it went on to try a different method prior to November, and

plaintiffs went on to successfully litigate further claims under the NVRA.871

As alleged by the plaintiffs in their pleadings, Karla Vanessa Arcia and Melande Antoine, U.S.

citizens originally from Nicaragua and Haiti, were among those erroneously placed on Florida’s

purge list, having already taken the oath of citizenship and completed all legal requirements to

become naturalized citizens. Others like Bill Internicola, a 91-year-old World War II veteran born

in Brooklyn, N.Y., and a number of Puerto Ricans living in Florida, also found themselves on the

state’s flawed purge list. They received letters saying they had to prove their citizenship within 30

days or they could not vote.872 Arcia and Antoine became plaintiffs and despite the state’s next

steps, continued to appeal to the Eleventh Circuit, which eventually ruled in their favor in the case

of Arcia v. Detzner in 2014.

In the meantime, prior to November, Florida changed its method of purging, by beginning to run

the list of alleged noncitizens through the Department of Homeland Security’s (DHS) Systematic

Alien Verification for Entitlements (SAVE) database.873 Plaintiffs filed an amended complaint,

but even as the case became more complex because of standing issues, Arcia and Antoine were

able to prove that they were continually subject to harm.874 This is in part because SAVE is not a

comprehensive list of U.S. citizens.875 It is not updated to include all naturalized citizens, and it

does not include derivative citizens born to U.S. parents outside the country. In fact, there is no

list of U.S. citizens.876 In July 2012, 13 states, led by Colorado, petitioned the DHS for access to

 

869 Complaint, Arcia v. Detzner, No. 1:12-CV-22282, ¶ 26 at 10 (S.D. Fla. 2012), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/VoterPurgeComplaint_000.pdf. 870 See Stipulation of Dismissal as to Counts I, II and parts of IV, Arcia v. Detzner, No. 1:12-CV-22282 (Sept. 12, 

2012), http://latinojustice.org/briefing_room/press_releases/Florida_Agreement_091212.pdf (“Plaintiffs will dismiss 

all of their claims in the Litigation other than the claim under section 8(c)(2)(A) of the NVRA”). 

871 Arcia v. Fla. Sec’y of State, 772 F.3d 1335 (11th Cir. 2014). 872 Complaint, Detzner, No. 1:12-CV-22282 at ¶¶ 4-5, 39; see also Greg Allen, World War II Vet Caught Up In 

Florida’s Voter Purge Controversy, NPR (May 31, 2012), 

https://www.npr.org/sections/itsallpolitics/2012/05/31/154020289/world-war-ii-vet-caught-up-in-floridas-voterpurge-controversy. 873 Arcia, 772 F.3d at 1339. 874 Id. at 1341. 875 U.S. Dep’t of Justice, Letter from Thomas E. Perez, Assist. Att’y Gen., U.S. Dep’t of Justice, to Hon. Ken 

Detzner, Florida Secretary of State (June 11, 2012), https://assets.documentcloud.org/documents/805150/us-dep-ofjustice-save-letter-1.pdf. 876 See John Suthers, Letter from John W. Suthers. Att’y Gen. for the State of Colorado, to Hon. Janet Napolitano, 

Secretary of U.S. Dep’t of Homeland Security, at 3 (July 5, 2012), 

https://www.sos.state.co.us/pubs/newsRoom/issueFiles/2012/20120705MemoDHS.pdf. 
Chapter 3: Recent Changes in Voting Laws and Procedures 149

SAVE to identify possible noncitizens to purge from voter rolls.877 But by 2016, many states

dropped their agreements, and while election officials in Florida, Colorado, Georgia, North

Carolina, Virginia, and several Arizona counties still have agreements with DHS to use SAVE,

they are not necessarily active users.878 This may be because in Florida, the Eleventh Circuit found

that:

Because Ms. Arcia and Ms. Antoine were naturalized U.S. citizens from Nicaragua

and Haiti respectively, there was a realistic probability that they would be

misidentified due to unintentional mistakes in the Secretary’s data-matching

process[.] . . . based on the potential errors that could occur when the Secretary

attempted to confirm their immigration status in various state and federal

databases[.]879

The court of appeals also concluded that Florida had violated the NVRA’s prohibition against

systemic voter list maintenance conducted in the 90 days before any federal election.880 It

determined that the NVRA prohibits purging in this window because voters would not have time

to correct errors, and “that is when the risk of disenfranchising eligible voters is the greatest.”881

This would have also been subject to preclearance prior to Shelby County.

882

This case was discussed by panelists at the February 2, 2018 briefing. John Park criticized the DOJ

because its litigation allegedly stopped the state from purging alleged noncitizens from the voting

rolls.883 But referencing the Arcia case brought by Advancement Project and Latino Justice

PRLDEF on behalf of black and Latino voters in Florida, Dale Ho responded that the Florida purge

“actually represents a cautionary tale about inaccurate and overzealous purging,”884 and described

the disparate impact of these types of purges on naturalized citizens, most of whom are people of

color.885 However, PILF recently sent letters to 248 jurisdictions across the United States alleging

noncompliance with the NVRA’s list maintenance requirements and threatening litigation; the

letters also requested information about “any records indicating the use of citizenship or

 

877 Scott Gessler, Letter from Scott Gessler, Colorado Secretary of State, to Janet Napolitano, Secretary of U.S. 

Dep’t of Homeland Security (July 9, 2012), http://www.scribd.com/doc/99815699/SOS-Sec-NapolitanoLtr-7-9-12-

FINAL. 878 See U.S. Citizenship and Immigration Services, SAVE Agency Search Tool, USCIS,

https://www.uscis.gov/save/save-agency-searchtool?topic_id=&agency_zip_code=&benefit_category%5B%5D=17&items_per_page=50, (listing current SAVE 

users for Voter Registration); see also Amy Sherman, Trump's Commission Vice Chair Kris Kobach Says 

Immigration Data Not Bounced Against Aoter Rolls, POLITIFACT: FLORIDA (May 23, 2017), 

http://www.politifact.com/florida/statements/2017/may/23/kris-kobach/trumps-election-commission-chair-kriskobach-says-/. 879 Arcia, 772 F.3d at 1341 (emphasis added). 880 Id. at 1346. 881 Id. 882 See, e.g., Fordice, 520 U.S. 273. 883 Briefing Transcript, supra note 234, at 203 (statement by John Park). 884 Briefing Transcript, supra note 234, at 213-315 (statement by Dale Ho). 885 Id. at 171. 
150 An Assessment of Minority Voting Rights Access

immigration status for list maintenance activities, including but not limited to the Systematic Alien

Verification for Entitlements (SAVE) Program database.”886

Purging for Minor Discrepancies (Georgia)

The DOJ objected to several changes in voter registration rules in Georgia during the time period

covered by this report.

887 In 2009, then-Acting Assistant Attorney General Loretta Lynch objected

to Georgia’s voter verification system, and notified the state that:

We have considered the accuracy of the state’s verification process. Our analysis

shows that the state’s process does not produce accurate and reliable information,

and that thousands of citizens who are in fact eligible to vote under Georgia law

have been flagged . . . Perhaps the most telling statistic concerns the effect of the

verification process on native-born citizens. Of those persons erroneously identified

as non-citizens, 14.9 percent, more than 1 in 7, established eligibility with a birth

certificate, showing they were born in this country. Another 45.7 percent provided

 

886 See PILF, Sample NVRA Violation, supra note 633, at 2. 887 See Robert A. Kengle, Voting Rights in Georgia: 1982-2006, 17 S. CAL. REV. L. & SOC. JUST. 367, 375 (2008), 

Table 1: Section 5 Objections by Type, 1982—2006. The various types of voting changes that were subject to 

objections, or that were withdrawn or continued (rather than being precleared) are set forth in the table below:

Objections Withdrawn Continued

Method of Election 32 1 6

Redistricting 26 2 1

State Judicial 6 2 1

Annexation 5 2 1

Districting 4 0 1 

Election Schedule 4 0 0

Candidate Qualification 3 0 1

Voter Registration 3 0 0

Consolidation 2 0 0

Polling Place 2 0 0

Referendum Procedures 2 0 0

Elected to Appointive 1 0 1

Deannexation 1 0 0

Total 91 7 12

887 U.S. Dep’t of Justice, Letter from Loretta King, Asst. Att’y Gen., U.S. Dep’t of Justice Civil Rights Division, to 

Hon. Thurbert E. Baker, Attorney General of Georgia, at 1-4 (May 29, 2009), 

https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/l_090529.pdf (emphasis added). 
Chapter 3: Recent Changes in Voting Laws and Procedures 151

proof that they were naturalized citizens, suggesting that the driver’s license

database is not current for recently naturalized citizens. The impact of these errors

falls disproportionately on minority voters . . . . Applicants [for voter registration]

who are Hispanic, Asian or African American are more likely than white

applicants, to statistically significant degrees, to be flagged for additional

scrutiny.

888

Two cases were recently brought in Georgia challenging county voter list maintenance procedures

under Section 2 of the VRA; these cases also included claims under the NVRA. The first is the

Hancock County challenger case discussed above, which resulted in systemic removal of voters,

virtually all of whom were African American. Hancock County entered into a court-ordered

consent decree that includes protections against discriminatory list maintenance procedures going

forward.889

The second case was brought in September 2016 against the Secretary of State’s implementation

of Georgia’s “exact match” process, and the complaint alleged the process resulted in the

cancellation of tens of thousands of voter registration applications and disparately impacted black,

Latino, and Asian-American voters.890 The Georgia NAACP, Asian Americans Advancing Justice,

and the Georgia Coalition for the Peoples’ Agenda’s allegations of violations of Section 2 of the

VRA and the 1st and 14th Amendment of the U.S. Constitution were not settled until after the 2016

presidential election, on February 8, 2017.891

According to the allegations in plaintiff’s complaint, Georgia’s match process was implemented

through comparing the names on voter registration applications against drivers’ license and social

security databases.892 All of the letters and numbers of the applicant’s name, date of birth, driver’s

license number, and last four digits of the Social Security number had to match the same letters

 

888 Id. 889 See Consent Decree, Georgia State Conference of NAACP, 2018 WL 1583160. 890 Complaint for Injunctive and Declaratory Relief, Georgia State Conference of the NAACP v. Kemp, No. 2:16-

CV-219, 149-65 (M.D. Ga. 2016), https://lawyerscommittee.org/wp-content/uploads/2016/09/2016-09-13-GANAACP-Kemp-Complaint-FINAL.pdf. 891 Settlement Agreement, Georgia State Conference of the NAACP v. Kemp, 2017 WL 2492361, No. 2:16-CV-219 

(M.D. Ga. 2016), http://www.projectvote.org/wp-content/uploads/Settlement-Agreement-NAACP-v.-Kemp-2.9.17-

1.pdf (like most settlement agreements, this one specifically did not include any admissions of liability). Id. at *10. 892 See Complaint, Georgia State Conference of the NAACP, No. 2:16-CV-219 at ¶¶ 27-29 (“The Georgia voter 

registration verification protocol was created in 2010 via administrative policy by Secretary of State Kemp pursuant 

to Ga. Code Ann. § 21-2-216(g)(7). The matching protocol is not codified in any statute or regulation. The 

verification protocol relies upon an algorithm to compare information on a first-time applicant’s voter registration 

form to information in the DDS or SSA databases, once the information from the form is entered into ENET. If 

applicants provide their driver’s license number on their registration form, the algorithm makes the comparison to 

information in the DDS database. If applicants provide the last four digits of their social security number, the 

algorithm makes the comparison to information in the SSA HAVV database. The protocol requires that the 

information on an unregistered applicant’s voter registration form exactly match corresponding fields in the 

applicant’s record contained in the DDS or SSA databases.”).
152 An Assessment of Minority Voting Rights Access

and numbers presented in the state Department of Driver Services or federal Social Security

Administration databases.893 Election officials:

consider a voter registration application “incomplete” pursuant to Ga. Code Ann. §

21-2-220(d) if any information does not match exactly with all of the corresponding

data fields in the DDS or SSA databases. Therefore, under this protocol, complete

applications submitted with accurate identifying information by eligible voters are

routinely marked incomplete and the applicants are not added to the voter

registration list. The result is disenfranchisement.894

Moreover, the plaintiffs alleged that voters were given extremely unclear notice about what

information was needed to correct any discrepancies, and they had to respond within less than 40

days.895 If they could not navigate that “Kafkaesque” and time-consuming process,896 their voter

registration application would be rejected and the only way they could vote would be by presenting

additional documentary proof of identification or citizenship before a “40-day clock” had

expired.897 The complaint further alleged that “a conservative estimate indicate[d] that more than

42,500 voter registration applications ha[d] been suspended or rejected due to the verification

protocol.”898

An expertstudy submitted by plaintiffsfound that black voters comprised 63.6 percent of cancelled

applicants, although they made up only 29.4 percent of the population, and that Latino voters

comprised 7.9 percent of cancelled applicants, although they made up only 3.6 percent of the

population; while white voters made up 13.6 percent of the cancellations but constituted 47.2

percent of the population.

899 Moreover, applicants who failed the exact match tended to live in

poorer communities and have lower high school graduation rates, which would make correction

of the cancellations or resolution of the discrepancies more challenging.900 The complaint also

alleged that the history of discrimination in voting in Georgia, along with ongoing discrimination

in the form of socioeconomic disparities that interact with the procedures, resulted in significant

racial disparities in access to voter registration.

901

 

893 Id. 894 Id. at ¶ 41 (emphasis added). 895 Id. at ¶¶ 45-58. 896 Id. at ¶ 65; see also id. at ¶¶ 65-80 (detailing individual voters of color experiences). 897 Id. at ¶¶ 45-58. 898 Id. at ¶ 7 (emphasis added). 899 Declaration of Christopher Brill, filed in Georgia State Conference of the NAACP, No. 2:16-CV-219 (N.D. Ga. 

2016), ECF Doc. No. 3-19 at ¶ 7 (Sept. 14, 2016) (on file). 900 Declaration of Michael McDonald, filed in Georgia State Conference of the NAACP, No. 2:16-CV-219 (N.D. Ga. 

2016), ECF Doc. No. 3-19 at ¶¶ 38-51 (Sept. 14, 2016). 901 Complaint, Georgia State Conference of the NAACP, No. 2:16-CV-219 at ¶¶ 122-23 (“The rate at which [voter 

registration] applicants have been placed in cancelled or pending status between July 2013 and July 2016 due to 

failing the first or last name match varies significantly by race. This is true even when considering the presence of 

special characters in applicants’ names (spaces, hyphens, and apostrophes). For example, White applicants whose 

names contain special characters both fail the name match and remain in cancelled or pending status at a rate of 1.7 
Chapter 3: Recent Changes in Voting Laws and Procedures 153

The federal district court held a hearing on the preliminary injunction,902 and all claims were settled

in February 2017.903 The parties agreed that voter registration applicants whose information fails

to match will be placed in pending status, and permitted to vote if they show acceptable

identification or proof of citizenship.904 The Georgia settlement permits types of documentary

proof of citizenship are more expansive than in other states with stricter laws such as Kansas; they

include more than only birth, naturalization, or citizenship certificates, and voters may also provide

affidavits signed under penalty of perjury of two U.S. citizens who are not related to the applicant,

along with an affidavit as to why the documents are not available.905 Finally, the settlement

agreement provides that all voter registration applicants that were cancelled on or after October 1,

2013 due to the match process would be moved to pending status and sent notification letters

regarding their right to vote.906 The settlement agreement also provided that Plaintiffs, which are

voter registration groups, would be given the data regarding the cancelled, pending, and rejected

voters who had wanted to register and participate in Georgia’s upcoming elections.

907

Additionally, Georgia has been purging votersfor “inactivity,” a practice discussed in further detail

below.908 Under the Supreme Court’s ruling in Young v. Fordice,

909 all of these procedures would

have had to be precleared under Section 5.910

 

percent. The corresponding rate for similarly situated Black applicants is 3.9 percent. That rate is 4.4 percent for 

Latinos and 12.9 percent for Asian-Americans.”). 902 Lawyers’ Committee for Civil Rights Under Law, Georgia State Conference of the NAACP, et al. v. Brian Kemp, 

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, https://lawyerscommittee.org/project/voting-rightsproject/litigation/georgia-state-conference-naacp-et-al-v-brian-kemp/ (last accessed Aug. 2, 2018). 903 Settlement Agreement, Georgia State Conference of the NAACP, No. 2:16-CV-219 (pending stipulated 

settlement filing with the court).

904 Id. at ¶ 1.b (and See Exhibit 1 regarding list of acceptable forms of identification and proof of citizenship, which 

are broader than previous requirements). 

905 Id. at Ex. 1. 906 Id. at ¶ 1.d-e. 907 Id. at ¶ 1.m. 908 A lawsuit alleges that Georgia’s practice of removal for inactivity violates the NVRA’s provisions against 

removal for inactivity as well as the 1st Amendment of the U.S. Constitution. The federal district court dismissed the 

case, but on appeal, the Eleventh Circuit vacated the dismissal and remanded the case pending the outcome of the 

Supreme Court’s decision regarding similar practices in Ohio in Husted v. A. Philip Randolph Inst. See Common 

Cause v. Kemp, 714 F. App’x 990 (11th Cir. 2018), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/CommonCauseGeorgia-Opinion031218.pdf. On June 11, 

2018, the Supreme Court ruled that Ohio’s removal practices did not violate the NVRA. Husted v. A. Philip 

Randolph Inst., 138 S. Ct. 1833 (2018). See Discussion and Sources cited at notes 915-28, infra. 909 520 U.S. 273 (1997). 910 Prior iterations of the voter verification match procedures were subject to preclearance in 2010. See Chapter 5, at 

note 1393, infra, discussing Georgia v. Holder, 748 F. Supp. 2d. 16 (D.D.C. 2010) (dismissed, subsequent change 

reviewed administratively). 
154 An Assessment of Minority Voting Rights Access

Purging Based on Voter Challenges by Private Parties (North Carolina)

North Carolina’s ongoing issues with allegedly discriminatory purges were discussed in the

previous section, regarding voter challenges that led to removals of voters from the rolls.

911 That

section also includes public comments the Commission heard regarding such practices.912

Purging for Inactivity (Georgia, New York, Ohio)

Purges for inactivity may disparately impact minority voters in ways that could potentially violate

the VRA. In 1993, the NVRA prohibited removing voters for inactivity.

913 This prohibition was

enacted after such procedures were found to be unfair and in at least one case, racially

discriminatory and in violation of Section 2 of the VRA.

914 “Critics further pointed out that the

poor and minority groups were disproportionately affected by these purges both because they voted

less frequently and because they had greater difficulty navigating reregistration once their

registrations were purged.”915 The 1993 NVRA therefore enacted a prohibition against purging for

inactivity, and requires notice and due process procedures for any removal of a registered voter.

916

On June 11, 2018, the Supreme Court ruled that Ohio could purge voters for inactivity—but only

if voters do not respond to a mail notice, and only after two general election cycles have passed.917

The decision was based on the NVRA,918 and did not address any possible claimsregarding Section

 

911 See Discussion and Sources cited in notes 83-46, supra. 912 Id. 913 52 U.S.C. § 20507(b)(2) (“Any State program or activity to protect the integrity of the electoral process by 

ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office shall not 

result in the removal of the name of any person from the official list of voters registered to vote in 

an election for Federal office by reason of the person’s failure to vote[.]”). 914 Toney v. White, 476 F.2d 203, 205-06, 208 (5th Cir. 1973), vacated in part on reh’g, 488 F.2d 310 (5th Cir. 

1973). Courts have recognized that purging laws could potentially violate Section 2, but require not only that the 

plaintiffs show a disparate impact of the law, but also that the purging law is the main source or cause of the 

discriminatory effect. See Ortiz, 28 F.3d at 313 (explaining that plaintiffs failed to show that Pennsylvania’s “purge 

law [was] the dispositive force in depriving voters of equal access to the political process in violation of § 2”); 

Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (explaining that the disparate impact of Tennessee’s felony 

conviction purge law on black voters was not a result of the purge law, and thus did not violate the VRA). 

915 Brief for American History Professors as Amici Curiae in Support of Respondents, Husted v. A. Philip Randolph 

Inst., No. 16-980 at *13 (Sept. 22, 2017). Congress was also concerned about the disparate impact of purging and reregistration requirements, finding that: “Such processes must be structured to prevent abuse which has a disparate 

impact on minority communities. Unfortunately, there is a long history of such list cleaning mechanisms which have 

been used to violate the basic rights of citizens.” S. REP. NO. 103-6, at 17-18 (1993-1994). 916 52 U.S.C. § 20507. The NVRA also mandated that: “any State program or activity designed to ensure the 

maintenance of accurate and current registration rolls, shall be uniform, nondiscriminatory, and in compliance with 

the provisions of the Voting Rights Act of 1965.” 52 U.S.C. § 20507(b)(1). 917 Husted, 138 S. Ct. at 1847-48, https://www.supremecourt.gov/opinions/17pdf/16-980_f2q3.pdf. 918 The Court upheld Ohio’s procedure for removing voters from its rolls, holding that the state’s process follows 

NVRA’s requirements to give notice to voters and let two federal election cycles pass before removal, “to the 

letter.” Id. at 1842. See also OHIO REV. CODE ANN. § 3503.21. The five-justice majority explained that the NVRA 

only prohibited using the failure to vote “as the sole criterion for removing a” registered voter and that Ohio only 

removes voters “if they have failed to vote and have failed to respond to a notice.” Husted, 138 S. Ct. at 1843 
Chapter 3: Recent Changes in Voting Laws and Procedures 155

2 of the VRA.919 The majority opinion goes so far as to point out that a discrimination claim was

not brought.920 This case was discussed by various panelists at the Commission’s briefing who

raised concern that the DOJ reversed its position in the matter after the presidential administration

changed in January 2017. In 2017, the Sixth Circuit Court of Appeals had held that the state’s use

of failure to vote as a trigger to confirmation of address proceedings that could lead to removal of

votersfrom the rolls was “perhaps the plainest possible example of a processthat results in removal

of a voter from the rolls by reason of his or her failure to vote.”921 The DOJ filed an amicus and

agreed with Plaintiffs over the course of the litigation,

922 until after the presidential election, when

it took the opposite position.923

The Supreme Court’s decision in this case may serve as a catalyst for other states to enact similar

laws.924 Ohio Secretary of State John Husted praised the Supreme Court’s decision and hopes that

states will now use Ohio’s law as a “model” moving forward.925 Georgia,

926 Hawaii, Oklahoma,

and Tennessee already have similar laws that purge voters for inactivity.927

Justice Sotomayor cited the NAACP’s amicus brief in her dissent to show the disparate impact of

Ohio’s purges, explaining that “American-majority neighborhoods in downtown Cincinnati had

10 percent of their voters removed due to inactivity, compared to only 4 percent of voters in a

suburban, majority-white neighborhood.”928 Some voting rights advocates argue that a Section 2

 

(emphasis in original). The Court went on to say that dissenting Justices simply “have a policy disagreement” with 

the decision because the NVRA, the majority argues, stands for Congress’s “judgment” that the failure to send back 

the mail notice paired with nonvoting was sufficient evidence that a voter changed address and, thus, enough to 

remove a voter from the rolls. Id. at 1848. 919 Id. at 1865. 920 Id. at 1848 (“The NVRA prohibits state programs that are discriminatory, see §20507(b)(1), but respondents did 

not assert a claim under that provision”).

921 A. Philip Randolph Institute v. Husted, 838 F.3d 699, 712 (6th Cir. 2016). 922 Brief for the United States as Amicus Curiae in Support of Plaintiffs-Appellants and Urging Reversal, A. Philip 

Randolph Institute v. Husted, https://www.justice.gov/crt/file/881821/download. 923 After the 2016 presidential election, the DOJ changed its position in this case through a brief filed in Aug. 2017, 

signed by no career staff. Brief for the United States as Amicus Curiae in Support of Petitioner-Defendant, Husted v. 

A. Philip Randolph Inst., https://www.justice.gov/sites/default/files/briefs/2017/08/07/16-

980_husted_v_randolph_institute_ac_merits.pdf. In the meantime, 17 former DOJ leaders including former Attorney 

General Eric Holder and career voting rights attorneys filed an amicus before the Supreme Court, arguing that the 

NVRA protects the right to vote and the right not to vote, and clearly prohibits removals for inactivity, noting that 

“from 1994 until the Solicitor General’s brief in this case, the DOJ had repeatedly interpreted the NVRA to prohibit 

a state from using a registrant’s failure to vote as the basis for initiating the Section 8(d) voter-purge process.” Brief 

for Eric Holder et al. as Amici Curiae in Support of Respondents, Husted v. A. Philip Randolph Inst. at 31. 924 Sam Levine, Supreme Court Gives Green Light to Ohio’s Voter Purges, HUFFINGTON POST (June 11, 2018), 

https://www.huffingtonpost.com/entry/ohio-voter-purge-law-upheld-by-supremecourt_us_5af5e4e1e4b032b10bfa8964. 925 Id. 926 Georgia has actually enacted these procedures. See Discussion and Sources cited in note 908, supra. 927 Brief for NAACP and the Ohio State Conference of the NAACP as Amici Curiae in Support of RespondentsPlaintiffs, Husted v. A. Philip Randolph Inst.

928 Husted, 138 S. Ct. at 1864 (Sotomayor, J., dissenting) (quoting brief for NAACP).
156 An Assessment of Minority Voting Rights Access

claim could be brought to enjoin purges for inactivity.929 According to the Ezra Rosenberg,

considering that voter registration and participation rates remain lower among voters of color as

compared to whites, removals based on inactivity are likely to further disparately impact

communities of color, particularly those with the lowest participation rates.930

In 2014 and 2015, the New York City Elections Board purged more than 110,000 Brooklyn voters

because they had not voted since 2008.931 Another 100,000 registered voters were removed from

the rolls because they had allegedly changed their address; their removals occurred with no public

announcement.932 This resulted in thousands coming to the polls during the 2016 primaries and

being unable to vote. 117,000 voters were put back on the rolls after litigation by voting rights

groups in which the DOJ intervened,933 but they had already lost their right to vote in 2016.

934

Brooklyn is one of the four boroughs in New York City that used to be covered for preclearance

prior to the Shelby County decision, so it is possible that with preclearance, these purges could

have been stopped prior to the election.935 Furthermore, a local news outlet conducted a surname

analysis of the purge list and found that it disparately impacted Latinos and Asian Americans.

936

 

929 Richard L. Hasen, Sonia Sotomayor’s Dissent in the Big Voter-Purge Case Points to How the Law Might Still Be 

Struck Down, SLATE (June 11, 2018), https://slate.com/news-and-politics/2018/06/sonia-sotomayors-husted-dissentpoints-the-way-forward-on-racist-voter-purge-laws.html. 930 See Figure 11, Voter Registration by Race and Ethnicity and Year, and Figure 15, Voter Turnout by 

Race/Ethnicity, 2000-2016, infra. Attorney Ezra Rosenberg submitted a statement commenting that:

Under Ohio’s Supplemental Process, infrequent voters who receive a confirmation notice will be removed from 

the rolls unless they do something to halt the removal process. Similarly, prior to the litigation in the Georgia 

exact match matter, those whose applications were cancelled were sent letters asking them to take additional 

steps to insure their registration.

Even modest administrative requirements have been shown to reduce “take up” or participation rates in a 

variety of public programs. When it enacted the NVRA, Congress implicitly recognized that administrative 

requirements could be a barrier to voter participation when it eliminated reregistration requirements. Ezra 

Rosenberg, Supplemental Written Statement for the U.S. Comm’n on Civil Rights, Marc. 19, 2018, at 9-10 (see

note 31) [hereinafter Rosenberg, Written Statement] (citing sources including the Congressional record) (on 

file). 

931 Complaint in Intervention, Common Cause of N.Y. v. New York Bd. of Elections, No. 1:16-CV-06122 at *7 

(E.D.N.Y. 2017), https://ag.ny.gov/sites/default/files/2017-1-26_nyag_proposed_complaint_in_intervention.pdf; 

Consent Decree, Common Cause of N.Y. v. New York Bd. of Elections, No. 1:16-CV-06122 (E.D.N.Y. 2017), 

https://lawyerscommittee.org/wp-content/uploads/2017/10/Consent-Decree-Final-Draft-updated-caption-signblock.pdf. 932 Id. at *8. 933 Id. at *13. 934 See Carl Campinile, New York City Elections Board Admits to Purging Voters from the Rolls, NEW YORK POST 

(Oct. 25, 2017), https://nypost.com/2017/10/25/nyc-elections-board-admits-to-purging-voters-from-rolls/. 935 Fordice, 520 U.S. at 280. 936 Brigidet Bergin, John Keefe & Jenny Ye, Brooklyn Voter Purge Hit Hispanics Hardest, WNYC NEWS (June 21, 

2016), https://www.wnyc.org/story/brooklyn-voter-purge-hit-hispanics-hardest/. These types of surname analyses 

are typically accepted by federal courts as evidence that is statistically reliable to indicate ethnicity. See U.S. v. 

Berks Cty, 250 F. Supp. 2d 525, 529 (E.D. Penn. 2003).
Chapter 3: Recent Changes in Voting Laws and Procedures 157

Purging Based on Felony Conviction (Florida, Pennsylvania)

In 2016, the ACRU sued the City of Philadelphia, alleging that the City’s failure to purge persons

with felony convictions from its voter rolls violated the list maintenance provisions of Section 8

of the NVRA.937 On April 27, 2017, the Third Circuit Court of Appeals held that the NVRA

permits—but does not require—states to make an effort to remove those with criminal convictions

and those declared mentally incompetent.938 Furthermore, the Third Circuit held that “contrary to

the ACRU’s assertions, the text of Section 8(a)(3) [of the NVRA] places no affirmative obligations

on states (or voting commissions) to remove voters from the rolls. As its text makes clear, NVRA

was intended as a shield to protect the right to vote, not as a sword to pierce it.”939 As discussed

above, Florida has also conducted voter purges based on alleged felony convictions, with a

discriminatory impact.940

During its national briefing, the Commission heard testimony regarding the racially discriminatory

impact of state laws that restrict the voting rights of persons with felony convictions.941 This issue

also arose in briefings on voting rights held by the Commission’s SACs in Florida and

Kentucky.942 Although a full review of the impact of these disparities is beyond the scope of this

report,943 it is notable that some conservative groups are calling for aggressive purges of persons

with felony convictions.944 However, not all conservatives agree. On April 6, 2018, George F. Will

wrote that there is no good reason that persons with felony convictions should not be able to

vote.945

In addition to voter ID laws and the above three types of emerging restrictions on getting and

staying on the voting rolls, as will be discussed below, cuts to early voting have also had a

discriminatory impact on minority voters.

 

937 See Am. Civil Rights Union v. Philadelphia City Comm’rs, 872 F.3d 175 (3rd Cir. 2017). 938 See 52 U.S.C. §20507(a)(3)(b). 939 Am. Civil Rights Union, 872 F. 3d at 182. 940 See Discussion and Sources cited at notes 856-59, supra. 941 Briefing Transcript, supra note 234, at 164 (statement by Anita Earls); see also Briefing Transcript, supra note 

234, at 127-29 (statement by Sherrilyn Ifill). 942 See Appendix D. 943 This issue is addressed in the Commission’s upcoming report on the collateral consequences of incarceration. See 

U.S. COMM’N ON CIVIL RIGHTS, FORTHCOMING COLLATERAL CONSEQUENCES: THE CROSSROADS OF PUNISHMENT,

REDEMPTION, AND THE EFFECTS ON COMMUNITIES (2018) [forthcoming]; see also U.S. Comm’n on Civil Rights,

Commission Briefing: Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on 

Communities, Final Transcript, May 19, 2017, https://www.usccr.gov/calendar/trnscrpt/Commission-BusinessMeeting-Transcript-05-19-17.pdf. 944 See Public Interest Legal Foundation, 24 States Show Corrupted Voter Rolls, PILF (Sept. 25, 2016) (linking to 

notice letters sent to 248 counties), https://publicinterestlegal.org/blog/248-counties-registered-voters-live-adults/. 945 George F. Will, There’s No Good Reason to Stop Felons From Voting, WASH. POST (April 6, 2018), 

https://www.washingtonpost.com/opinions/theres-no-good-reason-to-stop-felons-fromvoting/2018/04/06/88484076-3905-11e8-8fd2-49fe3c675a89_story.html?noredirect=on&utm_term=.9825691b0de0. 
158 An Assessment of Minority Voting Rights Access

Cuts to Early Voting

Early voting946 has been a very popular method of voting. In 2016, 23,024,146 Americans used inperson early voting.947 About 65.9 percent of early votes were cast by white voters, about 25.3

percent by black voters, and about 1.5 percent by Latino voters.948 Currently, 37 states and the

District of Columbia offer early voting, and of these, 21 states and the District of Columbia allow

some weekend early voting.949 Some of these states effectively offer early voting through

permitting absentee ballots with no excuse required, prior to Election Day.950 Figure 8 shows the

range of early voting options available in 35 states:

 

946 Early voting was a concept created in order to provide greater access to the polls to voters who are unable to vote 

on Election Day. Prior to the advent of early voting in the United States, the polls were only open Tuesdays, for 

limited hours. During the Civil War era, absentee voting could only be done with an excuse, and it could not be done 

in person. Olivia B. Waxman, This is How Early Voting Became a Thing, TIME MAGAZINE (Oct. 25, 2016), 

http://time.com/4539862/early-voting-history-first-states/. 947 Dr. Michael McDonald, 2016 November General Election Early Voting, U.S. ELECTION PROJECT, 

http://www.electproject.org/early_2016 (last accessed Aug. 2, 2018). 948 Id. 949 Nat’l. Conf. of State Legislators, Absentee and Early Voting, NCSL (Aug. 17. 2017), 

http://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx#early [hereinafter NCSL, 

Absentee and Early Voting]. 950 Id.
Chapter 3: Recent Changes in Voting Laws and Procedures 159

Figure 8: Absentee and Early Voting

Source: National Conference of State Legislatures951

But recently (since 2010), the following states have reduced early voting hours or days: Florida,

Georgia,952 Indiana, Nebraska, North Carolina, Ohio, Tennessee, and Wisconsin.953 Only three of

these eight states—Florida, Georgia, and North Carolina—were formerly covered under Section 5.

Cuts to early voting can cause long lines with a disparate impact on voters of color. In response to

this problem during the 2012 elections, on March 28, 2013, the bipartisan Presidential Commission

 

951 NCSL, Absentee and Early Voting, supra note 949. 952 Currently proposed Georgia Senate Bill 363 would amend the state code so that counties would only be able to 

offer early voting during weekdays and only one weekend day, rather than both Saturday and Sunday. See R.J. Rico, 

Georgia Democrats Outraged Over Push to Limit Weekend Voting, ASSOCIATED PRESS (Mar. 22, 2018), 

https://www.usnews.com/news/best-states/georgia/articles/2018-03-22/georgia-democrats-outraged-over-push-tolimit-weekend-voting. 953 Brennan, New Voting Restrictions in America, supra note 462.
160 An Assessment of Minority Voting Rights Access

on Election Administration (PCEA) was established by Executive Order.

954 The PCEA held a

series of hearings,starting in Florida, and received expert testimony, based upon which it presented

“unanimous recommendations, together with an array of best practices in election

administration.”955 Regarding long lines, the PCEA found that:

The image of voters waiting for six or more hours to vote on Election Day 2012, as

in the two previous Presidential contests, spurred the call for reform that led to

creation of this Commission. Research suggests that, although a limited number of

jurisdictions experienced long wait times, over five million voters in 2012

experienced wait times exceeding one hour and an additional five million waited

between a half hour and an hour. In some jurisdictions, the problem has recurred

for several presidential elections, while in others, a particular confluence of factors

led to unprecedented lines in 2012. It became clear to the [PCEA] Commission as

it investigated this problem that there is no single cause for long lines and there is

no single solution. But the problem is solvable.

956

The PCEA found a variety of factors contribute to long lines, and among these factors: “of course,

the more limited the opportunities to vote, the greater will be the number of voters who will vote

during the constricted hours of a single Election Day.”957 Moreover, the PCEA recommended that

no voter should have to wait more than 30 minutes in order to exercise the fundamental right to

vote.958 The PCEA found that: “There is much that states and localities can do to reduce wait times.

Most obviously, increasing the number of voters who vote before Election Day can relieve Election

Day traffic.”959 Other PCEA recommendations included formulas to determine the need for

adequate polling places and polling place resources, providing language access, and taking steps

towards modernizing voter registration, such as automatic voter registration.960

Focusing on the civil rights implications, the following section of the U.S. Civil Rights

Commission’s report reviews the reduction of early voting in the states where this issue has been

addressed under the VRA following the 2006 Reauthorization and in the post-Shelby County era.

These are: Florida, Indiana, North Carolina, Ohio, and Wisconsin. This section also discusses data

that reflect that during the time it currently takes to litigate cases against cuts to early voting, voters

experience long lines and other forms of decreased access to the ballot. Moreover, although

jurisdictions argued that cuts to early voting were justified to save costs, or to protect against voter

 

954 See U.S. Election Assistance Commission, Presidential Commission on Election Administration, EAC (last 

visited June 5, 2018), https://www.eac.gov/election-officials/pcea/. 955 PCEA Report, supra note 663. 956 Id. at 13 (emphasis added). 957 Id. at 14. 958 Id. 959 Id. at 40, n.119 (citing “Ken Detzner, Florida Secretary of State, PCEA Hearing Testimony, Miami, FL, at 2 

(June 28, 2013); Bill Cowles, Orange County Supervisor of Elections, PCEA Hearing Testimony, Miami, FL, at 16 

(June 28, 2013); Robert M. Stein, Professor of Political Science, Rice University, PCEA Hearing Testimony, 

Philadelphia, PA, at 28 (Sept. 4, 2013).”).

960 See PCEA Report, supra note 663, at 22-70.
Chapter 3: Recent Changes in Voting Laws and Procedures 161

fraud, federal courts found these arguments did not justify measures that resulted in racial

discrimination prohibited under Section 2.961

Florida

In Florida, cuts to early voting have been challenged under both Section 2 and Section 5 of the

VRA. Until the Shelby County decision, five counties in Florida were covered under Section 5;

therefore any statewide voting changes that impacted those counties were subject to

preclearance.962 In 2011, a sweeping set of voting reforms were signed into law, including

significant cuts to mandatory early voting days and hours. The former Chair of the Florida

Republican Party later said that suppression of the minority vote was the reason for the cuts to

early voting.963 In 2012, a federal court enjoined other provisions of the same law, which had

restricted community-based voter registration drives, due to likely violations of the NVRA and the

U.S. Constitution.964 The cuts to early voting were submitted to the federal court of the District of

Columbia for preclearance under Section 5 of the VRA, and they were not precleared.965 Even

 

961 See, e.g., Discussion and Sources cited at notes 362-65 (North Carolina), supra and 993-94 (Ohio), infra. 962 52 U.S.C. § 10301(b) (“A violation of subsection (a) is established if, based on the totality of circumstances, it is 

shown that the political processes leading to nomination or election in the State or political subdivision are not 

equally open to participation by members of a class of citizens protected by subsection (a) in that its members have 

less opportunity than other members of the electorate to participate in the political process and to elect 

representatives of their choice.”). But Cf. Husted, 768 F.3d at 557 (“The district court did not improperly engage in a 

retrogression analysis in considering the opportunities available to African Americans to vote EIP under the prior 

law as part of the “totality of circumstances” inquiry. To be sure, Congress intended—and the Court has read—

Section 2 and Section 5 not to have exactly the same scope. Procedurally, Section 5 requires that covered states 

obtain preclearance from the Attorney General or the District Court for the District of Columbia before they change 

a voting “qualification, prerequisite, standard, practice, or procedure.” 42 U.S.C. § 1973c. Section 2 applies to all 

states and includes no preclearance requirement. “[T]he purpose of § 5 has always been to insure that no votingprocedure changes would be made that would lead to a retrogression in the position of racial minorities with respect 

to their effective exercise of the electoral franchise.” Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 

L.Ed.2d 629 (1976). In other words, “§ 5 prevents nothing but backsliding,” whereas Section 2 is aimed at 

combatting “discrimination more generally.” Bossier II, 528 U.S. at 334-35, 120 S.Ct. 866. At the same time, 

however, no case explicitly holds that prior laws or practices cannot be considered in the Section 2 “totality of 

circumstances” analysis.”).

963 Dara Kam, Former Florida GOP Leaders Say Voter Suppression Was Reason They Pushed New Election Law,

PALM BEACH POST (Nov. 25, 2012), https://www.palmbeachpost.com/news/state--regional-govt--politics/formerflorida-gop-leaders-say-voter-suppression-was-reason-they-pushed-new-electionlaw/R9iQlcYqCBY3k1u4k5XdLP/. 964 League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1158 (N.D. Fla. 2012) (A preliminary 

injunction was granted against harsh and unconstitutional restrictions of community-based voter registration groups 

and teachers, on May 31, 2012. “The statute and rule impose a harsh and impractical 48-hour deadline for an 

organization to deliver applications to a voter-registration office and effectively prohibit an organization from 

mailing applications in. And the statute and rule impose burdensome record-keeping and reporting requirements that 

serve little if any purpose, thus rendering them unconstitutional even to the extent they do not violate the NVRA.”). 

This was followed by a permanent injunction against these restrictions on Aug. 30, 2012. League of Women Voters 

of Fla. v. Detzner, No. 4:11-CV-628-RH/WCS, 2012 WL 12810507 (N.D. Fla. 2012). 965 Florida v. United States, 885 F. Supp. 2d 299 (D.D.C. 2012) (Florida failed to meet its burden of showing 

retrogression would not occur if it reduced early voting days from 12 to 8 while also reducing early voting hours 

from 96 to 48).
162 An Assessment of Minority Voting Rights Access

after the federal court ruled that Florida could not reduce early voting days and hours as it had

originally envisioned, Florida’s 67 county Supervisors of Elections had wide discretion, but after

the five covered counties agreed to restore some (but not all) of the early voting days that were

cut, the DOJ agreed to end its challenge.966 In 2013, the state legislature also partially restored

early voting; thereafter, a case brought by Congresswoman Corrine Brown alleging violations of

Section 2 and the U.S. and Florida constitutions seeking to restore early voting on behalf of black

voters in Duval County967 was also dismissed.968

In the meantime, in 2012, the state legislature’s reduction of the number of mandatory early voting

days from 14 to eight and elimination of in-person voting on the final Sunday before Election Day

was still the law.969 What remained was a patchwork of 67 counties’ discretion, with a significant

negative impact on voters in Florida.970

Up until the weekend before Election Day, advocates scrambled to urge counties to add early

voting days and hours.971 The Florida Democratic Party also filed suit, resulting in a settlement for

extended early voting hours in the largest counties.972 Not all requests were granted, nor were all

days and hours restored in the largest counties, and voters waited up to 7 hours in many

precincts.973 A study of wait time data at the precinct level covering 92 percent of Florida’s 3.7

million voters in 2012 found that precincts with higher concentrations of Hispanic voters closed

later on Election Day, and that “in Miami-Dade County, early voting polling stations with the

 

966 See, e.g., Warren Richie, Early Voting: Why Justice Dropped Its Challenge of Florida Plan, CHRISTIAN SCI.

MONITOR (Sept. 13, 2012), https://www.csmonitor.com/USA/Elections/2012/0913/Early-voting-Why-Justicedropped-its-challenge-of-Florida-plan (The five covered counties were Collier, Hardee, Hendry, Hillsborough, and 

Monroe.); see also Notice of Administrative Preclearance, Brown v. Detzner, No. 3:12-CV-00852 (M.D. Fla. 2012), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/NoticeofAdministrativePreclearance.pdf (preclearance 

determination that cuts to mandatory early voting were not enacted with discriminatory purpose and were not 

retrogressive).

967 Complaint, Brown v. Detzner, 3:12-CV-00852 (M.D. Fla. 2013), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/Complaint_003.pdf. 968 Order of Dismissal, Brown v. Detzner, 3:12-CV-00852 (M.D. Fla. 2013), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/DismissalOrder.pdf. 969 Daniel A. Smith, When Florida Rolled Back Early Voting, Minorities Were Especially Affected, SCHOLARS 

STRATEGY NETWORK (Mar. 2014), http://www.scholarsstrategynetwork.org/brief/when-florida-rolled-back-earlyvoting-minorities-were-especially-affected. 970 Id.; see also Michael C. Herron and Daniel A. Smith, Race, Party, and the Consequences of Restricting Early 

Voting in Florida in the 2012 General Election, POL. RESEARCH QUARTERLY (2014) [hereinafter Herron & Smith, 

Race, Party, and the Consequences]. 971 Amanda Terkel, Florida Early Voting Fiasco: Voters Wait For Hours At Polls As Rick Scott Refuses To Budge, 

HUFFINGTON POST (Nov. 2012), https://www.huffingtonpost.com/2012/11/04/florida-early-voting_n_2073119.html. 972 See Nat’l. Commission on Voting Rights, Florida State Hearing, Univ. Miami (Mar. 31, 2014), 

http://votingrightstoday.org/LiteratureRetrieve.aspx?ID=125049; Florida Democratic Party v. Detzner, No. 1:12-

CV-24000 (S.D. Fla. 2016) (last accessed Aug. 1, 2018). 973 Michael C. Herron and Daniel A. Smith, Precinct Closing Times in Florida during the 2012 General Election

(Oct. 2014), http://www.dartmouth.edu/~herron/closingtimes.pdf.
Chapter 3: Recent Changes in Voting Laws and Procedures 163

greatest concentrations of Hispanic and Black voters had disproportionately long wait times at

both the start and close of polls each day, especially on the final Saturday of early voting.”974

Professor Theodore Allen found that at least 201,000 voters did not cast a ballot in Florida in 2012

because of the long lines, which, according to county election officials, were caused by the cuts to

early voting.975 His analysis of voting data obtained by the Orlando Sentinel from county elections

supervisors showed that, “nearly 2 million registered voters live in precincts that stayed open at

least 90 minutes past the scheduled 7 p.m. closing time.... Of those, 561,000 voters live in

precincts that stayed open three extra hours or longer.”976 Moreover, “according to Allen's analysis

of the data, the lengthy lines lowered actual turnout by roughly 2.3 percent per hour of delay.”977

In addition, Professors Daniel Smith and Michael Herron found that “[e]arly voting by minorities

went down in 2012, and voters who had cast ballots on the final Sunday of early voting in 2008

ended up with especially low participation in the 2012 general election.”978 Data regarding the use

of the longer early voting period in 2008 compared to data regarding the shortened early voting

period in 2012 showed that:

x Black Floridians are heavy users of the early voting option. Black people made up about 

13 percent of Florida’s registered voter pool in 2008 and almost 14 percent in 2012, yet in 

both elections they made up about 22 percent of the early voters. 

x The percentage of all voters who used early voting dropped more sharply for minorities 

than for white voters from 2008 to 2012. For black voters, the early voting share dropped 

from 35.7 percent to 31.6 percent; and for Hispanic voters, the early voting share dropped 

from 19.9 percent to 15.3 percent. But for white voters, the early voting share went down 

only slightly from 18.5 percent to 17.6 percent.

979

For those who did vote, the impact of the cuts led to exceedingly long lines. For example, news

reports emerged that a 102-year-old Haitian-American voter, Desiline Victor, was told she had to

wait 6 hours, and ended up waiting a full three hours, to cast her ballot at her Miami polling place

during the limited early voting hours remaining the weekend before Election Day.980 Her story and

many others who waited on the long lines during early voting in 2012 in Florida prompted the

 

974 Michael C. Herron and Daniel A. Smith, Congestion at the Polls: A Study of Florida Precincts in the 2012 

General Election, ADVANCEMENT PROJECT, Executive Summary (June 24, 2013), 

http://b.3cdn.net/advancement/f5d1203189ce2aabfc_14m6vzttt.pdf [hereinafter Herron & Smith, Congestion at the 

Polls]. 975 Scott Powers & David Damron, Analysis: 201,000 in Florida didn't vote because of long lines, ORLANDO 

SENTINEL (Jan. 19, 2013), http://articles.orlandosentinel.com/2013-01-29/business/os-voter-lines-statewide20130118_1_long-lines-sentinel-analysis-state-ken-detzner. 976 Id. 977 Id. 978 Herron & Smith, Race, Party, and the Consequences, supra note 970. 979 Id. 980 Ryan J. Reilly, Desiline Victor Gets Standing Ovation at State of the Union Address, HUFFINGTON POST (Feb. 13, 

2013), https://www.huffingtonpost.com/2013/02/12/desiline-victor-state-of-the-union_n_2674160.html (discussing 

subsequent creation of PCEA). 
164 An Assessment of Minority Voting Rights Access

creation of the PCEA, discussed above, which found that cuts to early voting were a significant

factor in increased wait times.

North Carolina See Discussion of related Section 2 litigation in Chapter 2, supra.

Ohio

Compared to Florida and North Carolina, the record regarding discriminatory impact of cuts to

early voting is not as clear in Ohio. The state enacted early voting following long lines in urban

counties with higher levels of minority voters in 2004, and the state settled related constitutional

Equal Protection and Due Process claims after protracted litigation in the case of League of Women

Voters v. Brunner.

981 Allegations included that voters waited for many hours because of inadequate

polling place resources in various counties, which also caused 10,000 voters in Columbus to be

unable to vote.982 In 2004:

Voters were forced to wait from two to 12 hours to vote because of inadequate

allocation of voting machines. Voting machines were not allocated proportionately

to the voting population, causing more severe wait times in some counties than in

others. At least one polling place, voting was not completed until 4:00 a.m. on the

day following [E]lection [D]ay. Long wait times caused some voters to leave their

polling places without voting in order to attend school, work, or to family

responsibilities or because a physical disability prevented them from standing in

line. Poll workers received inadequate training, causing them to provide incorrect

instructions and leading to the discounting of votes. In some counties, poll workers

misdirected voters to the wrong polling place, forcing them to attempt to vote

multiple times and delaying them by up to six hours.983

Although no racial discrimination claim was brought, the Equal Protection claims indicated that

the longest lines were in Ohio’s largest counties, with high levels of minority voters. After the long

lines of 2004, the Ohio legislature adopted a broad in-person early voting regime that permitted

voters to cast early ballots up to the Monday before Election Day. Federal courts later noted that

early voting was enacted “to remedy these problems [of long lines],”984 through “no-fault early

voting, eliminating the requirement that Ohio voters had to provide an excuse for not being able

to vote on Election Day in order to vote early.”985

Early voting has become very popular in Ohio. At the Commission’s Ohio SAC briefing on voting

rights, the Director of the Franklin County Board of Elections (where Columbus is located)

 

981 Order Enforcing Settlement Agreement, League of Women Voters v. Brunner, 3:05-CV-07309 (S.D. Ohio 2009), 

https://lawyerscommittee.org/wp-content/uploads/2015/06/00421.pdf. 982 League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 468 (6th Cir. 2008); see also Settlement Agreement, 

League of Women Voters v. Brunner, 3:05-CV-07309, ¶ B (S.D. Ohio 2009). 983 Husted, 768 F.3d at 531 (6th Cir. 2014) (quoting League of Women Voters of Ohio, 548 F.3d at 477-78). 984 Husted, 768 F.3d at 531. 985 Id.
Chapter 3: Recent Changes in Voting Laws and Procedures 165

testified that in 2016, about 40 percent of all Franklin County citizens who voted in the 2016

presidential election did so through early voting.986

However, Ohio’s early voting days and hours were reduced through several amendments in 2011,

and litigation ensued in a case brought by the Democratic Party. A preliminary injunction was

granted in August 2012,

987 and plaintiffs’ motion for summary judgment was granted by the Sixth

Circuit Court of Appeals in June 2014.988 But later in 2014, Ohio cut the last three days of early

voting. At that point, a claim involving racial discrimination was brought in Ohio NAACP v.

Husted, alleging violations of the Constitution and Section 2 of the VRA. A federal district court

of Ohio issued a preliminary injunction in September 2014,989 which the Sixth Circuit affirmed

later that same month.

990 The Sixth Circuit found no clear error in the district court’s findings,

recognizing that:

After assessing each [expert opinion], the district court credited [expert witness]

Smith’s conclusion that, based on his statistical analysis, African Americans will

be disproportionately and negatively affected by the reductions in early voting . . . .

The district court also accepted [another expert] Roscigno’s “undisputed” findings

that disparities in employment and in residential, transportation, and childcare

options between African American and white voters significantly increased the cost

of casting a vote for African American voters.991

Ohio experts also testified about research indicating that African-American voters

disproportionately use early voting in many states, and shortening the early vote period negatively

impacted turnout among African Americans.992 Moreover, the Sixth Circuit affirmed that the

state’s interests in preventing fraud or cutting costs did not justify discriminatory results of cuts to

early voting. It concluded that the district court “properly identified that the specific concern

Defendants expressed regarding voter fraud—that the vote of an EIP [early in-person] voter would

be counted before his or her registration could be verified—was not logically linked to concerns

with voting and registering on the same day.”993 Further, there was no evidence that county boards

of election were struggling with the costs of early voting.994

Regarding the Section 2 claim, the Sixth Circuit considered “statistical evidence that African

Americans use EIP voting at higher rates than others,” and “evidence in the record that African

 

986 Ohio State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in Ohio Briefing Transcript, 

Mar. 9, 2018, at 4, https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155584&cid=268 [hereinafter

Ohio SAC, Voting Rights Briefing]. 987 Obama for Am. v. Husted, 888 F. Supp. 2d 897, 910 (S.D. Ohio) aff’d, 697 F.3d 423 (6th Cir. 2012). 988 Obama for Am. v. Husted, 2014 WL 2611316, No. 2:12-CV-636 (S.D. Ohio 2014). 989 Ohio State Conference of N.A.A.C.P. v. Husted, 43 F. Supp. 3d 808, 852 (S.D. Ohio 2014). 990 Ohio State Conference of N.A.A.C.P. v. Husted, 768 F.3d 524, 561 (6th Cir. 2014). 991 Id. at 533 (internal citations omitted). 992 Id. 993 Id. at 547 (emphasis added). 994 Id. at 549.
166 An Assessment of Minority Voting Rights Access

Americans ‘tend to disproportionately make up the groups that benefit the most from same-day

registration: the poor and the homeless.”995 Moreover, the court concluded that “the provision of

only one Sunday of EIP voting burdens the voting rights of African Americans by arbitrarily

limiting Souls to the Polls voting initiatives; and that, because African Americans are more likely

to be of lower-socioeconomic status, they tend to work hourly jobs and can find it difficult to find

time to vote during normal business hours.”996 Considering these factors and the totality of

circumstances, the court of appeals affirmed that plaintiffs were likely to succeed on the merits of

their Section 2 vote denial claim, and affirmed the preliminary injunction.997 However, the state

argued to the Supreme Court that the injunction was issued too close to Election Day, so it would

be burdensome and confusing. On September 29, the Supreme Court stayed the injunction, and

the 2014 cuts to early voting were therefore allowed to proceed for the 2014 election cycle.998

The issue of whether the cuts to early voting were racially discriminatory was never adjudicated

on the merits, as the case was settled in April 2015, when Ohio Secretary of State Husted agreed

in a settlement stipulated to the federal court to set uniform early voting days and hours that every

county must provide.

999 In particular, the settlement restores early voting on Sundays and it

restores evening hours the week before Election Day.1000

Wisconsin

In 2016, a Wisconsin federal court found in One Wisconsin Institute, Inc. v. Thomsen that the

state’s limits to early voting, including eliminating weekend voting and providing for only one

early voting location per county, violated Section 2.1001 This was because:

Wisconsin’s rules for in-person absentee voting all but guarantee that voters will

have different experiences with in-person absentee voting depending on where they

live: voters in large cities will have to crowd into one location to cast a ballot, while

voters in smaller municipalities will breeze through the process. And because most

of Wisconsin’s African American population lives in Milwaukee, the state’s largest

 

995 Id. at 551. 996 Id. 997 Id. at 560. 998 Husted v. Ohio State Conference of N.A.A.C.P., 135 S. Ct. 42 (2014) (granting stay pending writ of certiorari). 999 For example, prior to any Presidential General Election, each county board was required to provide for in-person 

absentee (early) voting as follows: “Weeks One and Two of Voting (beginning with the day after the close of 

registration for the election except any holiday established by state law) 8:00 a.m. to 5:00 p.m. on each weekday 

(Monday through Friday) Week Three of Voting 8:00 a.m. to 6:00 p.m. on each weekday (Monday through Friday) 

8:00 a.m. to 4:00 p.m. on Saturday 1:00 p.m. to 5:00 p.m. on Sunday Week Four of Voting 8:00 a.m. to 7:00 p.m. on 

each weekday (Monday through Friday) 8:00 a.m. to 4:00 p.m. on the Saturday before election day 1:00 p.m. to 5:00 

p.m. on the Sunday before election day Week of Election Day 8:00 a.m. to 2:00 p.m. on the Monday before election 

day.” 10(a), Settlement Agreement, Ohio State Conference of The Nat. Ass’n For The Advancement of Colored 

People v. Husted, No. 2:14-CV-00404 (S.D. Ohio 2015), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/NAACP111-2.pdf. 1000 Id. 1001 One Wisconsin Inst., 198 F. Supp. 3d at 956.
Chapter 3: Recent Changes in Voting Laws and Procedures 167

city, the in-person absentee voting provisions necessarily produce racially disparate

burdens. Moreover, plaintiffs have demonstrated that minorities actually use the

extended hours for in-person absentee voting that were available to them under the

old laws.

The court concludes that the in-person absentee voting provisions disparately

burden African Americans and Latinos.1002

Polling Place and Other Accessibility Issues

American history is full of examples of people facing violence and risking death for basic access

to the fundamental right to vote. When men and women marched across the Edmund Pettus Bridge

in 1965 in Selma, Alabama, access to the polls was a key issue.1003 While current conditions are

less violent, the Commission heard testimony and reviewed information showing that access to the

polls remains a key issue at the state and local level since the 2006 VRA Reauthorization and in

the post-Shelby County era.1004

The testimony and information received by the Commission is complemented by a data-based

study by the Leadership Conference on Civil and Human Rights, as well as the Commission’s

independent research of other available sources. This section discusses states where such data were

available. The Commission notes that the widespread nature of this problem indicates that there

are likely other instances of polling place accessibility issues in other states.1005

 

1002 Id. 1003 See e.g., Shelby Cty., 570 U.S. at 546, 549; Kousser, Protecting the Right to Vote, supra note 95 (“[M]any 

people believe it was violence, not laws, that disfranchised African Americans, and that few Southern blacks 

continued to vote after the Compromise of 1877, which resulted in the withdrawal of U.S. troops and the collapse of 

the last Reconstruction Republican state governments. But, in fact, large proportions of African Americans 

somehow managed to vote in the next election in two-thirds of the counties where the most horrific Reconstruction 

violence took place. Black turnout in the South in the 1880s was actually higher than it often is today, and many 

African Americans continued to win elections for local and state offices and Congress through the 1890s. 

Disfranchisement was accomplished by law, not by force . . . Some scholars also have failed to notice that 

disfranchisement was an incremental process, taking place over many years and involving many types of actions. 

First, violence and intimidation, most intense during the 1860s and 1870s, killed or ran off many Republican leaders 

and gave Democrats control of election boards. Then Democratic election officials perpetrated the largest election 

frauds in U.S. history, which reduced the number of their political opponents but did not eliminate them. With 

majorities in state legislatures, Democrats passed changes in statutes that included gerrymandering election districts, 

substituting at-large for district elections in majority-white areas to deny opponents any offices at all, making it 

much more difficult to register to vote, or mandating secret ballots to disfranchise the illiterate. Finally, by the 1890s 

and early 1900s, with the electorate and the number of partisan opposition officials reduced, with the ability to 

falsify election returns and with the option to use violence if needed, Democrats were able to move on to state 

constitutional disfranchisement with literacy tests and especially poll taxes.”).

1004 See Discussion and Sources cited in this section herein. 1005 See Discussion and Sources cited in this section herein.
168 An Assessment of Minority Voting Rights Access

Moving or Eliminating Polling Places

Moving a polling place or closing a polling place may not always be discriminatory, but sometimes

it is.1006 Prior to Shelby County, most changes in polling places (including changes in polling place

resources) were approved by the DOJ, but some were found to be discriminatory and therefore not

precleared.1007 Since 1965 and particularly after 1982, the rate of objections to polling place moves

decreased over time. Yet there were always instances of polling places being reduced, moved away

from communities of color, and made less accessible.1008 Some of these discriminatory voting

changes were stopped by preclearance.

Along with cuts to early voting, reducing polling place access can lead to long lines. After such

cuts led to long lines in Ohio and Florida in 2008 and 2012, a Massachusetts Institute of

Technology (MIT) study found that lines were significantly longer in some states than others.1009

Figure 9 reproduces a map of the results of MIT’s national study:

 

1006 See, e.g., Briefing Transcript, supra note 234, at 258-59 (statement by Dale Ho). 1007 See, e.g., U.S. Dep’t of Justice, Voting Determination Letters for Texas (last updated Aug. 7, 2015), 

https://www.justice.gov/crt/voting-determination-letters-texas (showing 16 letters based on polling place changes, 

with 7 occurring after 1982); see also U.S. Dep’t of Justice, Voting Determination Letters for Mississippi, 

https://www.justice.gov/crt/voting-determination-letters-mississippi (last updated Aug. 7, 2015) [hereinafter DOJ, 

Voting Determination Letters in MS] (showing 9 letters based on polling place changes, with 4 occurring after 

1982).

1008 Id. 1009 Charles Stewart III, Waiting to Vote in 2012, 15 (2013), 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2243630 (as prepared for the conference on “The Voting Wars: 

Elections and the Law from Registration to Inauguration,” University of Virginia Law School, Mar. 23, 2013, 

Charlottesville, Virginia). 
Chapter 3: Recent Changes in Voting Laws and Procedures 169

Figure 9: Voting Wait Time, 2008 and 2012

Source: Health of State Democracies1010

It shows that lines were longer in the formerly covered jurisdictions.

As discussed above, preclearance was conducted by jurisdictions providing Census data about the

racial impact of reductions or changes in polling place locations, as well as DOJ interviewing

minority community leaders about the impact of the change.1011 This method took into account not

only the most recent local Census data, but also factors such as whether there was adequate public

transportation, whether the proposed polling place location was in a Sheriff’s office, whether it

was moved from a school,1012 church, or community center, or whether it was no longer in an area

safe for walking.1013 Section 5 also effectively required public notice of changes in polling place

locations.1014 The Leadership Conference explains that:

 

1010 Health of State Democracies, Voting Wait Times, 2008 and 2012, HSD

https://healthofstatedemocracies.org/factors/waittime.html (last accessed June 11, 2018), 1011 See Discussion of Section 5 preclearance procedures and Sources cited in notes 224-34, supra. 1012 PCEA Report, supra note 663, at 33 (PCEA found that schools are ideal polling place locations, as they are 

community-based and familiar). 1013 See, e.g., Discussion and Sources cited at notes 1046-58, infra. 1014 See The Leadership Conference Education Fund (LCEF), The Great Poll Closure, LCEF 1 (Nov. 2016), 

http://civilrightsdocs.info/pdf/reports/2016/poll-closure-report-web.pdf [hereinafter Leadership Conference 

Education Fund, The Great Poll Closure] (“Pre-Shelby [County], jurisdictions were required to give substantial 
170 An Assessment of Minority Voting Rights Access

Post-Shelby [County], voters have to rely on news reports and anecdotes from local

advocates who attend city and county commission meetings or legislative sessions

where these changes are contemplated to identify potentially discriminatory polling

place location and precinct changes. In the vast majority of instances, closures have

gone unnoticed, unreported, and unchallenged.1015

In its 2016 study of 381 counties in formerly covered jurisdictions, the Leadership Conference

found that 165 (43 percent) of these formerly covered counties had reduced the number of polling

places since the Shelby County decision, leaving voters with fewer places to vote.1016 According

to the Leadership Conference report, even with limitations in the data available in Alabama,

Mississippi, and Texas, in 2016, public records showed a high number of polling places closed

since the Shelby County decision in some of the formerly covered states, as follows: 1017

Alabama—66 (polling places closed)

Arizona—212

Louisiana—103

Mississippi—44

 

notice to voters about any planned polling place closures. And they were required to consult with the minority 

community to ensure that any proposed voting change was not discriminatory.”). 1015 Id. 1016 Id. at 4. There is insufficient public information to determine or corroborate whether these closures were racially 

discriminatory.

1017 Id. at 5. 

North Carolina—27

South Carolina—12

Texas—40
Chapter 3: Recent Changes in Voting Laws and Procedures 171

The public records reviewed by the Leadership Conference also indicate that, in some instances,

the percent of polling places closed was substantial. For example, some counties in Arizona and

Texas reduced their number of polling places by more than 50 percent.

1018 While the rationale for

reducing the number of polling places may be to save money, at least in some instances, when

taken too far, the rationale led to extremely long lines1019 or other discriminatory impacts that

illustrate how the loss of preclearance of these changes may have led to discriminatory results.1020

The following section is organized to illustrate regional trends impacting different groups of

minority voters.

Arizona

The impact of Shelby County was felt in the closure of polling places in Arizona prior to the state’s

presidential preference primary of March 2016. Arizona had been subject to preclearance since the

1975 VRA reauthorization, which expanded Section 5 to more fully include “language minority”

populations (Latino, Asian, and Native Americans).1021 The Leadership Conference’s examination

of public records regarding closure of polling places in 2016 found that:

By sheer numbers and scale, Arizona is the leading closer of polling places in the

aftermath of Shelby [County]. Almost every Arizona county reduced polling places

in advance of the 2016 election and most on a massive scale—leading to 212 fewer

voting locations. Arizona counties are the leaders in our study for both numbers of

polling places closed and percentage of polling places. Pima County is the nation’s

biggest closer of polling places by number with 62 fewer voting locations in 2016

than 2012. Cochise County is the nation’s biggest closer by percentage with its 63

percent reduction.1022

In the state’s largest county, Maricopa, the number of polling places was reduced from 200 to 60

in 2016. During discussions on reducing the number of Maricopa County polling centers, County

Supervisor Steve Gallardo questioned whether 60 polling centers would be sufficient. The County

Recorder and Elections Director both responded that 60 would be enough as the County was

 

1018 Id. at 7, 11-12. 1019 See, e.g., Discussion and Sources cited in notes 1022-27, infra (regarding Arizona). 1020 See, e.g., Kristina Torres, Cost-Cutting Moves Spur Fears About Reducing Access to Georgia Voters, THE 

ATLANTA JOURNAL-CONSTITUTION (Oct. 11, 2016), https://politics.myajc.com/news/state--regional-govt--

politics/cost-cutting-moves-spur-fears-about-reducing-access-georgia-voters/qu9llnbKd6dSl6yblbB68M/; see

Discussion and Sources cited in notes 1045-49, infra (regarding Georgia). 1021 See Discussion of 1975 VRA Amendments and Sources cited therein at notes 162-67, supra; see also Juan 

Cartagena, Latinos and Section 5 of the Voting Rights Act: Beyond Black and White, 18 NAT’L BLACK L. J. 201, 

210-11 (2005); see also Voting Rights: Hearings on H.R. Doc. No. 6400 Before Subcomm. No. 5 of the H. Comm. on 

the Judiciary, 89th Cong., 1st Sess. 508-17 (1965) (statements of Latino community leaders regarding racial 

discrimination in voting impacting Latinos in New York and Texas). 1022 Leadership Conference Education Fund, The Great Poll Closure, supra note 1014, at 7.
172 An Assessment of Minority Voting Rights Access

implementing a new system that allowed voters to vote at any polling center, and as they expected

95 percent of all voters to vote via mail rather than in-person.1023

But instead, due to the polling place closures, according to an Arizona Republic survey, voters

reported that they were forced to wait in line for hours during the 2016 primary.1024 County

officials estimated they saved over $1 million, but four polling places were overwhelmed with

over 3,000 voters each.

1025 The Arizona Republic mapped the closure of polling places in Maricopa

County, compared the results to Census data, and found that:

While both rich and poor areas were hurt by a lack of polling sites this year, a wide

swath of predominantly minority and lower-income areas in west Phoenix and east

Glendale, along with south Phoenix, were particularly lacking in polling

sites compared with 2012. Poorer areas of east and west Mesa lacked polling sites

as well, as did south Avondale and much of Goodyear.1026

Similarly, Brennan Center’s analysis of data provided by Maricopa County found that:

x On average, vote centers across the county [of Maricopa] closed more than 4 hours late. 

Vote centers in Phoenix closed, on average, more than 4 hours late.

x Latino voters faced disproportionately long wait times. Across heavily Latino census tracts, 

the average wait time at the closest voting center was more than 4 hours.

x Vote centers with longer wait times tended to have fewer resources, such as poll workers 

and electronic poll books, per voter.1027

Litigation was brought under Section 2, alleging disparate impact and discriminatory effects for

voters of color during the 2016 primary,

1028 but that case was settled after polling places were re-

 

1023 Recording: Maricopa County Board of Supervisors Formal Meeting at 55:09 (Feb. 17, 2016), 

http://video2.siretech.net/SIRE/MaricopaCounty/Formal/2870/2870.mp4; see also Rob O’Dell, Yvonne Wingett 

Sanchez, and Caitlin McGlade, Lack of polling sites, not independents, caused Maricopa election chaos, ARIZ.

REPUBLIC (Mar. 23, 2016) https://www.azcentral.com/story/news/politics/elections/2016/03/23/maricopa-countypresidential-primary-election-chaos-arizona/82174876/. 1024 Yvonne Wingett Sanchez, While Others Waited to Vote, 1 Maricopa County Site Had 21 Voters, 

ARIZ. REPUBLIC (Mar. 25, 2016), https://www.azcentral.com/story/news/politics/elections/2016/03/25/onemaricopa-county-polling-site-had-21-voters/82269370/ [hereinafter Sanchez, While Others Waited Hours to Vote]. 

The Arizona State Advisory Committee also held a hearing regarding voting rights in Arizona and received 

significant testimony regarding polling place closures. U.S. Comm’n on Civil Rights, Voting Rights in Arizona, Jul. 

2018, at 2, https://www.usccr.gov/pubs/2018/07-25-AZ-Voting-Rights.pdf. This report was voted upon June 15, 

2018. Id. at 1. 1025 Id. 1026 Rob O’Dell & Caitlin McGlade, Map: Areas Hit Hardest By Slim Polling Options, ARIZ. REPUBLIC (July 7, 

2016), https://www.azcentral.com/story/news/politics/elections/2016/03/27/slim-polling-options-maricopacounty/82278474/. 1027 Christopher Famighetti, Long Voting Lines: Explained, THE BRENNAN CENTER FOR JUSTICE (Nov. 4, 2016), 

http://www.brennancenter.org/analysis/long-voting-lines-explained#_ftn1. 1028 Complaint, Feldman v. Arizona, No. 2:16-CV-01065, (D. Ariz. Apr. 15, 2016), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/Complaint041516.pdf. 
Chapter 3: Recent Changes in Voting Laws and Procedures 173

opened in Maricopa County prior to the 2016 general election.1029 However, other counties that

had significant reductions in the number of polling places were not part of the settlement. These

include: Cochise County (63 percent reduction), where there are high levels of Spanish-speaking

voters and in 2006, a DOJ consent decree regarding the language requirements of the VRA;1030

Pima County (22 percent reduction), which is 35 percent Latino; and Mohave County (46 percent)

and Navajo County (25 percent), both of which have large Native American populations.1031

These polling place closures would have been subject to preclearance under Section 5, to determine

whether they were intentionally discriminatory or retrogressively reduced access for minority

voters. Moreover, the state would have had to provide racial impact data, and members of impacted

minority groups would have had the opportunity to provide input, 1032 enabling the DOJ to analyze

the likely impact of the polling place closures with much greater precision than the procedures

described above.1033

Alabama

There may be heightened concerns about reductions in access to the polls in southern states like

Alabama, where according to the 2010 Census, 26.8 percent of the population is black, and their

numbers increased by 9.6 percent between 2000 and 2010.

1034 Regarding the region in general, the

greatest percentage of black residents in the U.S. live in the South. In 2010, 55 percent of black

residents in the U.S. lived in the South (an increase from 53.6 percent in 2000).1035 Moreover, the

U.S. Department of Transportation (DOT) and Alabama settled claims alleging that Alabama’s

closure of 31 Department of Motor Vehicle offices (which provide access to the identification now

needed to vote) disparately occurred in the state’s “Black Belt” region and disproportionately

impacted black and Latino voters in Alabama and violated the Civil Rights Act.1036 The DOT’s

 

1029 See Joint Notice of Settlement, Feldman v. Arizona, No. 2:16-CV-01065, at 2 (D. Ariz. Sept. 9, 2016), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/Feldman-JointNoticeOfSettlement090916.pdf (settling 

claim “regarding polling location allocation in Maricopa County”).

1030 See Consent Decree, Order and Judgment, United States v. Cochise Cty., No. 4:06-CV-00304 (D. Ariz. Jun. 16, 

2006); see also U.S. Dep’t of Justice, Cases Raising Claims Under the Language Minority Provisions of the VRA 

(last updated Oct. 16, 2015), https://www.justice.gov/crt/cases-raising-claims-under-language-minority-provisionsvoting-rights-act (“The complaint alleged that Cochise County violated Section 203 requirements by failing to 

provide an adequate number of bilingual poll workers trained to assist Spanish-speaking voters on election day and 

by failing to publicize effectively election information in Spanish.”). 1031 See Adam DeRose, Arizona Has Fewer Polling Places Than 2012, CRONKITE NEWS (Nov. 7, 2016), 

https://www.gvnews.com/election/arizona-has-fewer-polling-places-than/article_1d70b6de-a545-11e6-8d46-

a7280220fbc3.html. 1032 See Discussion and Sources cited in Chapter 2, notes 220-34, supra (discussing preclearance procedures 

including public notice, data required with submission, and minority community input).

1033 Cf. Discussion and Sources cited at note 1023, supra (regarding county board meeting discussion of proposal). 1034 U.S. Census Bureau, The Black Population: 2010, U.S. CENSUS BUREAU, 8 (Sept. 2011), 

https://www.census.gov/prod/cen2010/briefs/c2010br-06.pdf (describing the Black or African American alone or in 

combination population) [hereinafter U.S. Census Bureau, The Black Population]. 1035 Id. at 7 (Figure 2) (describing the Black or African American alone or in combination population). 1036 See, e.g., Keith Lang, Feds to Investigate Alabama DMV Closures, THE HILL (Dec. 9, 2015), 

http://thehill.com/policy/transportation/312055-feds-closing-driver-license-offices-in-alabama-violates-civil-rights. 
174 An Assessment of Minority Voting Rights Access

investigation had found that “African-Americans in the Black Belt region are disproportionately

underserved by . . . [the state’s] driver’s licensing services, causing ‘a disparate and adverse impact

on the basis of race, in violation of Title VI.’”1037

The Leadership Conference study of polling places indicated that 12 of the 18 (67 percent) of

Alabama counties that provided data eliminated a total of 66 locations to vote.

1038 At the

Commission’s briefing, Alabama Secretary of State John Merrill testified that because of the

Shelby County decision “moving polling places, annexation, and even de-annexation of territory

by municipalities” could now be enacted without review.1039 The Commission notes that due to

the loss of preclearance, limited data are available to determine whether the recent closures of

polling place in the state had a discriminatory effect on minority voters in Alabama and throughout

the South.

1040

Florida

While reducing early voting hours as described in the above Cuts to Early Voting section of this

report, Florida concurrently reduced the number of polling places open during early voting

hours.1041 Moreover, data showed that the long lines in Florida in 2012 were also concurrent with

fewer voting machines and poll workers, which disparately impacted black and Latino voters and

caused them to wait longer than white voters.1042 The harshest disparate impact and longest wait

times to vote correlated with lack of sufficient poll workers in polling places with higher portions

of Latino voters.1043 Additionally, in 2016, the Election Protection hotline run by the Lawyers’

Committee for Civil Rights Under law received “multiple” complaints by voters about “aggressive,

intimidating behavior” by individuals at polling places in Florida.

1044

Georgia

Georgia is another formerly covered jurisdiction with ongoing problems regarding access to

polling places. Ezra Rosenberg testified about the post-Shelby County move of a polling place to

 

1037 Id. 1038 Leadership Conference Education Fund, The Great Poll Closure, supra note 1014, at 4. 1039 John Merrill, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018 [hereinafter Merrill, 

Written Testimony].

1040 Cf. Discussion of Preclearance Procedures and Sources cited in Chapter 2, at notes 220-34, supra. 1041 See Discussion and Sources cited at notes 962-80, supra. 1042 See Herron & Smith, Congestion at the Polls, supra note 974, at 15-16 (analyzing precinct closing times and 

Florida voter registration data by race in 5,194 Florida precincts representing 92 percent of the 3.7 million Floridians 

who voted, and finding racial disparities); see also Christopher Famighetti, Amanda Melillo, & Myrna Pérez,

ELECTION DAY LONG LINES: RESOURCE ALLOCATION 16, THE BRENNAN CENT. FOR JUSTICE (2014), 

http://www.brennancenter.org/sites/default/files/publications/ElectionDayLongLines-ResourceAllocation.pdf (citing 

survey-based studies on voter wait times) [hereinafter Famighetti et al., Election Day Long Lines]. 1043 Famighetti et al., Election Day Long Lines, supra note 1042. 1044 William Wan, Voting Issues in Florida: Intimidation Reported at Polling Places, WASH. POST (Nov. 8, 2016), 

https://www.washingtonpost.com/politics/2016/live-updates/general-election/real-time-updates-on-the-2016-

election-voting-and-race-results/voting-issues-in-florida-intimidation-reported-at-pollingplaces/?utm_term=.4d955dee4e63. 
Chapter 3: Recent Changes in Voting Laws and Procedures 175

a Sheriff’s office in Macon-Bibb County.1045 Using the Sheriff’s office as a polling place can be

intimidating, especially considering the history of violence by local law enforcement at the polls

during the Jim Crow era.1046 Moreover, in modern times, “the president of the Macon-Bibb

NAACP chapter . . . said it sent ‘the wrong message’ among residents who had raised concerns

about local law enforcement in recent years.”1047

In order to defeat the measure to move the polling place to the Sheriff’s office, the county NAACP

collected signatures from 20 percent of registered, active voters in the county.1048 Gwen

Westbrooks, president of the Macon-Bibb County chapter of the NAACP, commented that,

“We’re looking at some of the same issues from the 1960s in 2016.”1049

Indiana

In April 2018, an Indiana federal district court held that Marion County’s reduction of the number

of early voting sites was likely to violate Section 2 of the VRA, and it therefore issued a

preliminary injunction requiring the county to reestablish two additional satellite early voting

offices for the November 2018 general election.1050 The federal court took into account that the

county had introduced experimental satellite offices for early voting in 2008,1051 and there were

no administrative or staffing issues.

1052 However, the board voted not to re-open the satellite

offices in 2016, leaving Marion County, one of Indiana’s largest counties, with only one location

for early voting.

1053 The court also took into account that the only place for early voting was the

City-County building, which resulted in long commutes and long wait times,

1054 forcing some to

not participate in early voting.1055 The court concluded that the action “impose[d] only a limited

 

1045 Rosenberg, Written Testimony, supra note 651, at 4 (noting that “While we were fortunate to have partners on 

the ground that alerted us to the problems that could be stopped, an effective Section 5 would have placed the 

burden on these jurisdictions to have provided notice of these changes in their voting practices and policies before 

they took effect.”).

1046 See, e.g., U.S. COMM’N ON CIVIL RIGHTS VOTING 1961, supra note 62, at 67 (describing how black voters who 

went to register to vote in Louisiana in July 1960 “were referred to the sheriff—a not-too-subtle form of 

intimidation” and, in another instance, a sheriff warned a black resident, who had planned a meeting with the 

NAACP to discuss voter registration, not to “say anything about voting.”). 1047 Kristina Torres, Cost-Cutting Move Spurs Fears About Reducing Access to Georgia Voters, THE ATLANTA 

JOURNAL-CONSTITUTION (Oct. 11, 2016), https://politics.myajc.com/news/state--regional-govt--politics/cost-cuttingmoves-spur-fears-about-reducing-access-georgia-voters/qu9llnbKd6dSl6yblbB68M/. 1048 Stanley Dunlap, Macon-Bibb Polling Location OK’d After Sheriff’s Precinct Nixed, THE TELEGRAPH (May 16, 

2016), http://www.macon.com/news/local/article77920442.html. 1049 Id. 1050 Common Cause Indiana v. Marion Cty. Election Bd., 311 F. Supp. 3d 949, 977 (S.D. Ind. 2018). However, the 

court denied the plaintiff’s motion, in part, electing not to enjoin the defendants to establish the satellite offices for 

the May 2018 Primary Election. Id. 1051 Id. at 955-56. 1052 Id. 1053 Id. at 958-59. 1054 Id. (One “77-year-old mother had wanted to cast an EIP vote as well but she ‘did not want to go downtown as 

she has trouble walking and normally uses a cane or walker.’”).

1055 Id. 
176 An Assessment of Minority Voting Rights Access

burden,”1056 yet it had a disparate impact on those “who lack financial means or flexible

schedules.”1057 The court also took note of the disproportionate negative impact of the cuts to early

voting on black voters, citing the greater decline in African-American absentee voters compared

to white voters in the 2012 and 2016 elections that occurred after the cuts following the 2008

elections.1058

Louisiana

Based on a history of discrimination in voting, Louisiana had been covered under Section 5 since

1965.1059 The Leadership Conference found that since the Shelby County decision, 61 percent of

Louisiana parishes have closed a total of 103 polling places.

1060 At the Commission’s Louisiana

SAC briefing on voting rights, Jhacova Williams, Ph.D. Candidate in the Economics Department

at Louisiana State University, presented her research finding that “a negative and statistically

significant association with the percent [of] black [residents] and the number of polling places

indicating that census tracts that have higher percentages of black residents have fewer polling

places . . . for a 10 percentage point increase in black residents there are 1.2 percent fewer polling

places within a censustract.” 1061 She also found “a positive and statistically significant relationship

between income and the number of polling places,”1062 and that “[i]t is also the case that the

proportion of black residents and income per capita are negatively correlated.”1063

Mississippi

There may be heightened concerns about reductions in access to the polls in states like Mississippi,

which has the highest percentage of black residents of any state.1064 Widespread, flagrant, and

rampant discrimination against black voters in Mississippi led to the enactment of the 1965

VRA.1065 Prior to Shelby County, Mississippi had been covered since 1965, and even though there

has not been successful post-Shelby County litigation in the state, a pattern of objections from 2006

to 2013 showed that it continued to be one of the states with the highest level of VRA violations

in recent years.1066 Also prior to Shelby County, the DOJ had sent observers to monitor elections

 

1056 Id. at 969 (quoting Crawford, 553 U.S. at 202). 1057 Id. 1058 Id. 1059 See, e.g., U.S. Dep’t of Justice, Voting Determination Letters for Louisiana, https://www.justice.gov/crt/votingdetermination-letters-louisiana (last updated Aug. 7, 2015) (including 10 objections since 2000). 1060 Leadership Conference Education Fund, The Great Poll Closure, supra note 1014, at 8. 1061 Louisiana State Advisory Committee to the U.S. Comm’n on Civil Rights, Public Meeting: Civil Rights and 

Barriers to Voting in Louisiana 16 (Dec. 6, 2017).

1062 Id. 1063 Id. 1064 U.S. Census Bureau, The Black Population, supra note 1034, at 8. 1065 See Discussion and Sources cited in History of Minority Voter Suppression, supra notes 40-43; see also Robert 

McDuff, The Voting Rights Act and Mississippi: 1965-2006, 17 U. OF S. CAL. REV. OF L. AND SOC. JUST. 475 

(2008), https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/issue_17/05_Mississippi_Macro.pdf. 1066 See, e.g., DOJ, Voting Determination Letters in MS, supra note 1007; Figure 23, DOJ Objection Letters by State 

(2006-2013).
Chapter 3: Recent Changes in Voting Laws and Procedures 177

in Mississippi on a regular basis.1067 Observers were sent to Mississippi when DOJ believed there

was a need to protect against potential discrimination in voting, based on pre-election

investigations. Against this backdrop, there have been significant closures of polling places in the

state.

In its 2016 study, the Leadership Conference located public records from 59 of Mississippi’s 82

counties, and found that 20 of those 59 counties (34 percent) had reduced the number of polling

places since the Shelby County decision.1068 The impact of the loss of preclearance of changes in

polling places is illustrated by the following:

In 2012, the majority-White Lauderdale County Election Commission established

precincts that were backed by a $65,000 voter impact study, and precleared as nondiscriminatory by the Justice Department. The next year, a hard fought mayoral

race in the 62 percent Black city of Meridian resulted in the election of the city’s

first Black mayor, Percy Bland, even though a noose was hung outside of his

business during the campaign. Less than one month later, the Shelby [County]

decision gutted the Voting Rights Act and set off a chain of events that allowed the

election commission to eliminate six of the county’s 48 polling places without

preclearance.

In 2015, the election commission proposed a plan to move several of Meridian’s

municipal election polling places out of Black churches, including Mt. Olive

Baptist, an iconic church with a legacy of voting rights activism. Despite the fact

that Mt. Olive’s pastor and Mayor Bland both opposed the plan—which also broke

up a major Black precinct—the county implemented the moves without a study of

its impact on voters.1069

Although this case has not been litigated, and the Commission does not have relevant data

regarding discriminatory impacts, it raises several issues showing the negative impacts of loss of

preclearance. First, “whether political campaigns have been characterized by overt or subtle racial

appeals,” like the noose hung outside the black candidate’s business in this instance, are taken into

account in Section 2 cases.1070 Second, in places with high levels of racially polarized voting such

as Mississippi, redistricting that is no longer subject to preclearance may dilute minority voting

rights, leading to voters of color no longer being able to elect candidates of their choice.1071 This

may happen when minority precincts are split, as was done in 2015 in Meridian, Mississippi. All

of this intersects with the issue of moving polling places when district lines are redrawn. Whether

 

1067 See Discussion and Sources cited at note 1493, infra; Appendix G: Federal Observers by Year, State and County 

and Appendix H: DOJ Election Monitors by Year, State, and County.

1068 Leadership Conference Education Fund, The Great Poll Closure, supra note 1014, at 9 (footnotes omitted). 1069 Id. at 9. 1070 Gingles, 478 U.S. at 37. 1071 Id. at 56; see also Bruce E. Cain & Emily R. Zhang, Blurred Lines: Conjoined Polarization and Voting Rights, 

77 OHIO ST. L. J. 867 (2016), passim [hereinafter Cain & Zhang, Blurred Lines].
178 An Assessment of Minority Voting Rights Access

or not a VRA violation would be found in this particular case, it illustrates the myriad of issues

that would have been taken into account under the former preclearance regime.

North Carolina

Public records reviewed by the Leadership Conference reportedly show that of the 40 formerly

covered counties in North Carolina, in the post-Shelby County era, 12 counties had closed a total

of 27 polling places by 2016.1072 For example, Cleveland County went from having 26 polling

places in 2012, to 21 in 2016. In the city of Shelby County, North Carolina (40 percent black), five

polling places were merged into two.1073 Further research would be needed to determine whether

these polling place closures had a racially discriminatory effect; such research would seek to

determine if the fact that half of the county’s polling places that closed were in the part of the

county that has a higher black population was retrogressive.1074 This is the type of information that

was routinely submitted and reviewed under the former Section 5 preclearance procedures.1075

Pennsylvania

Allegations in Section 2 VRA litigation in Pennsylvania illustrate concerns about problems with

access to the polls on Historically Black Colleges and Universities (HBCUs). According to a

Section 2 complaint, in 2008, students at Lincoln University, an HBCU in Chester, Pennsylvania

petitioned to have a polling place on campus, to avoid long lines at the much smaller space located

off campus.1076 The allegations also include that the county denied the request and students were

forced to wait 6 to 8 hours to vote on Election Day, while in the meantime, poll watchers inside

the polls challenged student voters.1077 This allegedly led to the district having the lowest turnout

of any election district in the county.1078 After civil rights groups sued under Section 2, the county

settled and opened a polling place on Lincoln University campus.1079

Alaska

The Native American Rights Fund (NARF) has pointed out one particularly egregious example in

Alaska, where a polling place was moved away from a village, and thereafter, Native Alaskan

voters could only access their polling place by plane.

1080 At the Commission’s briefing, NARF’s

 

1072 Leadership Conference Education Fund, The Great Poll Closure, supra note 1014, at 10. 1073 Id. 1074 See Chapter 2, discussing preclearance procedures, at notes 220-34, supra. 1075 Id. (discussing preclearance procedures including public notice, data required with submission, and minority 

community input).

1076 Complaint, English v. Chester Cty., No. 2:10-CV-00244 (E.D. Pa. Jan. 20, 2010), 

https://www.aclupa.org/download_file/view_inline/591/214/. 1077 Id. at ¶¶ 11, 34, 44, 66, 72. 1078 Id. at ¶ 83. 1079 Settlement Agreement, English v. Chester Cty., No. 2:10-CV-00244 (E.D. Pa. July 2010), 

https://www.aclupa.org/download_file/view_inline/639/214/. 1080 Natalie Landreth, Why Should Some Native Americans Have to Drive 163 Miles to Vote?, THE GUARDIAN, (June 

10, 2015), https://www.theguardian.com/commentisfree/2015/jun/10/native-americans-voting-rights (“[I]magine if 

you had to take a plane flight to the nearest polling place because you cannot get to it by road, which was the 
Chapter 3: Recent Changes in Voting Laws and Procedures 179

senior attorney Natalie Landreth testified that issues of this type have continued in the post-Shelby

County era in Alaska and in other states with high Native populations.1081

In May 2015, after consulting with tribal leaders across the nation, the DOJ found that Native

Americans had to travel farther distances compared to white voters in a number of states.1082 This

finding led the DOJ to propose post-Shelby County legislation requiring jurisdictions “whose

territory includes part or all of an Indian reservation, an Alaska Native village, or other tribal lands

to locate at least one polling place in a venue selected by the tribal government,” and requiring an

equal number of resources at those polling sites.1083 Senators Tester (D-MT), Heitkamp (D-ND),

Udall (D-NM), and Franken (D-MN) introduced a version of the DOJ draft bill as the Native

American Voting Rights Act of 2015, which would require establishment of polling places on

reservations at the request of tribes, including during early voting, and direct state election officials

to mail absentee ballots to all registered voters if requested by the tribe.

1084 The bill, however, has

not yet received a hearing in Congress.1085

Montana

The Montana case of Wandering Medicine v. McCullogh illustrates the discriminatory effect of

closing polling places in Native American communities.1086 The DOJ filed a Statement of Interest

in this case, arguing that plaintiffs were likely to succeed, as Section 2 of the VRA prohibits

unequal access to voter registration sites.1087 In its brief, the DOJ cited a number of cases showing

that unequal access to voter registration and voting sites violated the rights of black and Native

 

case for several Native communities in 2008, when the state of Alaska attempted a “district realignment” to 

eliminate polling places in their villages. And that’s just half the trip”).

1081 Briefing Transcript, supra note 234, at 98-100 (statement by Natalie Landreth). 1082 U.S. Dep’t of Justice, Tribal Justice and Safety, DOJ Proposes Legislation to Improve Access to Voting for 

American Indians and Alaskan Natives (last updated May 15, 2015), https://www.justice.gov/tribal/departmentjustice-proposes-legislation-improve-access-voting-american-indians-and-alaska (last accessed Aug. 9, 2019) 

[hereinafter DOJ, DOJ Proposes Legislation to Improve Access to Voting for American Indians and Alaskan 

Natives]; see also U.S. Dep’t of Justice, Tribal Justice and Safety, Draft Legislation: Tribal Equal Access to Voting 

Act of 2015, https://www.justice.gov/file/440986/download (last accessed Aug. 9, 2019) [hereinafter DOJ, Tribal 

Justice and Safety, Draft Legislation]. 1083 DOJ, DOJ Proposes Legislation to Improve Access to Voting for American Indians and Alaskan Natives, supra

note 1082; see DOJ, Tribal Justice and Safety, Draft Legislation, supra note 1082. 1084 See Discussion of S.1912 (2015), in Appendix B: Congressional Responses to the Shelby County Decision. 1085 Id. 1086 Mark Wandering Med. v. McCulloch, No. CV-12-135-BLG-DWM, 2014 WL 12588302 (D. Mont. 2014). 1087 Statement of Interest of the United States, Mark Wandering Med. v. McCulloch, No. 1:12-CV-135-RFC (D. 

Mont. Oct. 23, 2012), https://www.justice.gov/crt/case-document/si-wandering-medicine-v-mcculloch-2012. The 

DOJ later filed an amicus brief in support of the plaintiff-appellants when the plaintiffs appealed the district court’s 

denial of a preliminary injunction, again arguing that the plaintiffs were likely to succeed on a Section 2 claim and 

that the district court erred in interpreting the necessary elements of such a claim. Brief for the United States as 

Amici Curiae Supporting Plaintiff-Appellant, Mark Wandering Med. v. McCulloch, 544 Fed. App’x 699 (9th Cir. 

2013) (No. 12-35926), 2013 WL 1452760.
180 An Assessment of Minority Voting Rights Access

American voters.1088 Moreover, an expert study showed that Native Americans were forced to

travel 189 percent further than white voters in Big Horn County, 322 percent further in Blaine

County, and 267 percent further in Rosebud County.1089 In Rosebud County, the round trip to the

county seat is 120 miles, which is a two-hour drive that takes even longer for those getting rides

or using public transportation, making it much more difficult for impacted communities to vote.

1090

The DOJ also stated that in 2012, the locations for the sites for in-person late registration and early

voting in Big Horn, Blaine, and Rosebud counties discriminated against Native American voters

in violation of Section 2 of the VRA.

1091 Montana law permits late registration and early voting at

the county seat, but also permits counties to create satellite locations for these purposes.1092 As the

counties are geographically large and sparsely populated, the location of satellite late registration

and early voting locations is critical—and none were located on Native American Reservations. In

June 2014, state and county election officials agreed to settle the case by establishing satellite

offices on reservations twice a week through Election Day.1093

North Dakota

In 2010, a federal district court in North Dakota issued a preliminary injunction enjoining closure

of polling places on the Spirit Lake Tribe’s reservation in North Dakota.

1094 This case explained

how historic discrimination that leads to ongoing disparities may currently impact access to the

polls. The federal court found that:

The historic pattern of discrimination suffered by members of the Spirit Lake Tribe

is well-documented. The North Dakota Supreme Court found evidence of Benson

County's discrimination against the Spirit Lake Tribe in 1897. In 2000, following a

dispute over the method of electing members of the Benson County Commission,

this Court approved a consent decree, which stated:

Native American Citizens within Benson County have suffered from a history of

official racial discrimination in voting and other areas, such as education,

employment, and housing. Native American citizens in Benson County continue to

bear the effects of this past discrimination, reflected in their markedly lower

socioeconomic status compared to the white population. These factors hinder

Native Americans' present-day ability to participate effectively in the political

process.

 

1088 Id. at 5 (citing Operation Push v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), aff’d sub nom., Operation Push 

v. Mabus, 932 F.2d 400 (5th Cir. 1991), and unequal access to voting sites, see Spirit Lake Tribe, 2010 WL 

4226614; Brown v. Dean, 555 F. Supp. 502 (D.R.I. 1982)). See also Jacksonville Coalition for Voter Protection v. 

Hood, 351 F. Supp. 2d. 1326 (M.D. Fla. 2004) (unequal access to early voting sites); Brown v. Post, 279 F. Supp. 60 

(W.D. La. 1968) (unequal access to absentee voting opportunities).

1089 Cain & Zhang, Blurred Lines, supra note 1071, at 872-74. 1090 Editorial, Make Voting Easy for Native Americans on Reservations, GREAT FALLS TRIB. (Oct. 24, 2015), 

https://www.greatfallstribune.com/story/opinion/2015/10/24/voting-easier-native-americans/74340666/. 1091 See Statement of Interest of the United States, Mark Wandering Med., supra note 1087. 1092 Id. at 4. 1093 Settlement Agreement, Mark Wandering Med., No. 1:12-CV-00135 (D. Mont. 2014); 

https://www.aclumontana.org/en/cases/wandering-medicine-v-montana-secretary-state. 1094 Spirit Lake Tribe v. Benson Cty., 2010 WL 4226614 (D.N.D. 2010).
Chapter 3: Recent Changes in Voting Laws and Procedures 181

This pervasive discrimination is alleged by the Tribe to be a significant factor

contributing to the entrenched problems of poverty, alcoholism, illiteracy, and

homelessness.

The Tribe has provided evidence that the closure of the voting places on the

reservation will have a disparate impact on members of the Spirit Lake Tribe

because a significant percentage of the population will be unable to get to the voting

places in Minnewauken to vote. According to a survey conducted by Immogene

Belgrade, 46 percent of those polled said they would be unable to find

transportation to Minnewauken and thus would be unable to vote in person on

Election Day. A number of factors contribute to this problem: (1) road closures due

to construction and flooding around Devils Lake; (2) the lack of reliable vehicles;

(3) the lack of sufficient buses to transport voters to Minnewauken; (4) a lack of

sufficient funds to pay for transportation; and (5) the sheer distance between the

more remote areas of the reservation and Minnewauken.

1095

Based upon this evidence, the federal court granted a preliminary injunction re-opening two of the

closed polling places.1096

Oregon

Native American leaders in Oregon and Washington State, both of which have converted entirely

to vote-by-mail, also voiced concerns about lack of access to polling places.

1097 In these states,

there are no more polling places, but there may be ballot drop-off boxes.1098 At the Commission’s

briefing, Natalie Landreth testified that:

In 2015, NARF was able to create the Native American Voting Rights Coalition. It

was a direct response to Shelby County. We decided we should gather into one room

every person and organization that litigates voting rights cases in Indian Country

. . . There were more than 100 [types of allegations of voting problems], ranging

from polling places where the county sheriffs are known to stand in the door of the

polling place, armed, weapon visible, to a general sense that there were fewer

polling places on reservations than there used to be.1099

In a Native American Voting Rights Coalition forum record submitted to the Commission, Carina

Miller from the Confederated Tribes of Warm Springs in Oregon spoke in her native language,

commenting that voting by mail exacerbates language barriers as the ballots are mailed in English-

 

1095 Id. at *3 (internal citations omitted). 1096 Id. at *6. 1097 See, e.g., Transcript of Proceedings, Pacific Northwest Hearing, Native American Voting Rights Coalition in 

Portland, Oregon (Jan. 24, 2018) [hereinafter Portland Transcript] at 121 (Washington), 174 (Oregon). 1098 Id. at 154. 1099 Natalie A. Landreth, Written Testimony for the U.S. Commission on Civil Rights, Feb. 2, 2018 at 4 [hereinafter

Landreth, Written Testimony].
182 An Assessment of Minority Voting Rights Access

only.1100 Members of other tribes in Oregon said they have to drive up to 45 to 50 miles, or about

45 minutes, to vote.1101 Another community leader added that a significant Native American

homeless persons in Oregon are not mailed ballots, making voting “virtually impossible.”1102

Washington State

During a January 2018 Native American Voting Rights Coalition’s Pacific Northwest briefing,

community members and tribal leaders discussed problems with the vote-by-mail system in their

communities.1103 In Washington State, relevant problems raised by community members included:

x Getting ballots to the correct address; for instance, in one development with 400 rental 

units, 40 percent of the tenants move every month;

1104

x An inability to update addresses online due to less access to Internet1105

x The cost of a new driver’s license, $89, and a renewal license, $54, is a barrier as well;

1106

x Problems with receiving and dropping off mail-in ballots in rural and isolated 

communities;1107 state, federal, and county offices only open during limited, staggered 

hours;1108

x Historical trauma leading to apathy or distrust of the federal government;

1109 and 

x To receive a mail ballot, a voter’s address must to be certified as “physically deliverable,” 

leaving out many voters.1110

Other community leaders stated that due to the Washington Secretary of State’s guidelines, the

Okanogan County Auditor did not fulfill a tribe’s request for drop-off box at a tribal government

center.

1111 Councilwoman Norma Sanchez commented that:

Tribal members live 20, 30, 40, 50 miles away from the post office, and we don't

have rural [post office] boxes . . . . They go to the post office to get their mail and

to mail their letters, so many of them are not going to drive that distance just to mail

a ballot and it’s also going to cost them also to put a stamp on it, and many of our

tribal members cannot afford gas sometimes to even make it to the post office.1112

 

1100 See Miller Testimony, Portland Transcript, supra note 1097, at 173-74. 1101 Id. at 160 and 206. 1102 Id. at 210. 1103 See, e.g., id. at 121. 1104 Id. at 21-22 and 51. 1105 Id. at 51. 1106 Id. at 124. 1107 Id. at 77. 1108 Id. 1109 Id. at 95-97. 1110 Id. at 122. 1111 Id. at 123. 1112 Id. at 140. 
Chapter 3: Recent Changes in Voting Laws and Procedures 183

Theresa Sheldon of the Board of Directors of the Tulalip Tribe said that her tribe used to have a

polling place, but under the new rules they can only vote absentee (by mail). The tribe has been

asking for a drop-off box on the reservation for over ten years, but this repeated request has been

refused and voters now have to drive to a Starbuck’s in the nearest town to vote.1113

Language Access Issues

The U.S. is home to millions of citizens with limited-English proficiency who can only vote with

limited understanding if voting and voter registration materials and oral assistance are not provided

in languages in which they are fluent. Asian Americans Advancing Justice, a national affiliation

of five Asian American and Pacific Islander civil rights organizations, submitted written testimony

documenting that:

Of approximately 291 million people in the United States over the age of five, 60

million people, or just over 20%, speak a language other than English at home.

Among those other languages, the top two categories are Spanish and Asian

languages, at 37 million and 11.8 million people, respectively. This means,

nationally, about 3 out of every 4 Asian Americans speak a language other than

English at home and a third of the population is Limited English proficient (LEP),

that is, has some difficulty with the English language.1114

Given the rich language diversity among Americans, federal law—including the language access

provisions of the VRA, as well as Executive Order 13166, requiring language assistance in

federally funded services under Title VI of the Civil Rights Act, which prohibits national origin

discrimination—is quite clear that language support is federally required for voters who need it.

1115

Sections 4(e), 4(f)(4), and 203 are the VRA’s “language minority” or “language access”

provisions.1116 They require that voters who are limited-English proficient (LEP) be provided

access to voting in their native languages. The term “language minorities” or “language minority

group” is defined as persons who are American Indian, Asian American, Alaska Natives, or of

Spanish heritage.1117 Persons of African or Caribbean heritage are not included in the statutory

definition of “language minority groups” under the VRA, so languages such as Haitian Creole are

not covered under Section 203. Additionally, scholars have argued that Arab Americans should

 

1113 Id. at 163-64. 1114 Asian Americans Advancing Justice, Written Testimony for the U.S. Comm’n on the Civil Rights, Mar. 19, 

2018, at 3 [hereinafter Asian Americans Advancing Justice, Written Testimony]; see also Bernard L. Fraga & Julie 

Lee Merseth, Examining the Causal Impact of the Voting Rights Act Language Minority Provisions, 1 J. OF RACE,

ETHNICITY AND POL., 31, 32 (2016) [hereinafter Fraga & Merseth, Examining the Causal Impact] (“roughly one in 

four Asian Americans who are eligible to vote are LEP and reside in a county or municipality required to provide 

election materials in the citizen’s native language”). 

1115 Limited English Proficiency, Executive Order 13166 (last updated Mar. 28, 2018), 

https://www.lep.gov/13166/eo13166.html. 1116 DOJ Response to USCCR Interrogatory No. 25, at 6; Copies of the Commission’s Interrogatories and Document 

Requests may be found in Appendix J. 

1117 52 USC § 10310(c)(3).
184 An Assessment of Minority Voting Rights Access

have their languages covered under Section 203.1118 Although these communities’ language rights

can be and have been protected by other VRA provisions,1119 because Section 203 is a strict

liability provision requiring language access in jurisdictions where the threshold is met,

1120 the

omission of these languages in the VRA statutory definition leaves a gap in language access

protection for these voters.1121

The Commission received testimony and conducted research showing that enforcing the VRA’s

language access provisions is crucial to providing equal access to the right to vote; yet the DOJ

has drastically reduced its level of enforcement of the rules that election materials, including

ballots and voter registration forms, as well as oral assistance, be provided bilingually.1122

As various experts told the Commission, there are millions of LEP voters whose numbers are

growing, but due to widespread noncompliance with the language access provisions of the VRA,

their voting rights are at risk.1123 The Commission also reviewed arguments against language

access, including that it encourages balkanization, increases fraud, and wastes government

resources.1124 The type of voter fraud alleged is noncitizen voter fraud, but the Commission’s

 

1118 See, e.g., Brenda Fathy Abdelall, Note, Not Enough of a Minority?: Arab Americans and the Language 

Assistance Provisions (Section 203) of the Voting Rights Act, 38 U. MICH. J.L. REFORM 911, 913 (2005). 1119 Theoretically, the language access rights of voters who are not in groups that are covered under Section 203 may 

be protected in more limited circumstances, under Sections 2 or 208 of the VRA. See, e.g., Consent Order, United

States v. Miami-Dade Cty., No. 02-CV-21698 (S.D. Fla. 2002) (DOJ litigated to protect Creole-speaking HaitianAmerican voters in Miami-Dade County who were prevented from receiving assistance), https://justice.gov/crt84; 

Consent Order, United States v. Salem Cty., No. 1:08-CV-03276 (D.N.J. 2008) (language access-related violations 

of Section 2, showing that Section 2 applies to and can be used to protect language access rights); Consent Order 

and Decree, United States v. City of Hamtramck, No. 00-CV-73541 (E.D. Mich. 2000) (discriminatory treatment at 

the polls included asking only Arab Americans for documentary proof of citizenship; consent order included 

requirements to appoint Arabic and Bengali-speaking election inspectors), 

https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/hamtramck_cd.pdf; First Amended Consent Order 

and Decree, and Second Amended Consent Order, United States v. City of Hamtramck, No. 00-CV-73541 (E.D. 

Mich. 2003 and 2004) (extending requirements for federal observers and bilingual election inspectors through Jan. 

31, 2006), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/hamtramck_cd03.pdf and 

https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/hamtramck_cd04.pdf. 1120 52 U.S.C. § 10503(b)(2)(A). 1121 The above-cited cases show that in order to have these protections apply, either Section 2 or Section 208 claims 

must be proven, while the broad protections of Section 203 are unavailable unless Congress were to expand the 

statute to apply to other citizens who are LEP whose predominant language is not Spanish, Asian, or Native 

American. See, e.g., First Amended Consent Order and Decree, and Second Amended Consent Order, United States 

v. City of Hamtramck, No. 00-CV-73541 (E.D. Mich. 2003 and 2004) (extending requirements for federal observers 

and bilingual election inspectors through Jan. 31, 2006), 

https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/hamtramck_cd03.pdf and 

https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/hamtramck_cd04.pdf. 1122 See Chapter 5, Documentation of DOJ’s Language Access Enforcement and Sources cited therein at notes 1437-

1459, infra. 1123 Id. 1124 See, e.g., Roger Clegg, Should the Feds Require U.S. Ballots to be Printed in Foreign Languages?, CENTER FOR 

EQUAL OPPORTUNITY, (May 24, 2017), http://www.ceousa.org/voting/voting-news/voting-issues/1108-should-thefeds-require-u-s-ballots-to-be-printed-in-foreign-languages.
Chapter 3: Recent Changes in Voting Laws and Procedures 185

review of that issue shows that there are sufficient legal protections against noncitizen voting and

that incidences are exceedingly rare.1125 Regarding cost, James Tucker, Of Counsel with Wilson

Elser and member of the Native American Voting Rights Coalition, found that the actual cost of

bilingual ballots is less than expected, and the cost of bilingual poll workers is negligible,

considering that they are members of the community and every jurisdiction already has to hire poll

workers.1126 Regarding balkanization, José Enrique Idler of the American Enterprise Institute

argues that although the VRA requires multilingual ballots for LEP voters, “[t]he notion, however,

that the nation is going down a slippery slope and will soon become a multilingual republic is

exaggerated. The dominant language is, and will be for a very long time, English.”1127 Moreover,

the Commission received credible testimony citing reports showing that when language access

rights are enforced, participation of LEP voters increases,

1128 and civic participation certainly

indicates a form integration into American democracy.

Each of the VRA’s language access provisions is discussed in turn below.

Section 4(e) of the VRA provides specific rights for U.S. citizens educated in “American-flag

schools” in languages other than English, meaning Puerto Ricans educated in public schools on

the Island. Under Section 4(e) jurisdictions may not “condition” Puerto Ricans’ voting rights on

ability to speak English.1129 Puerto Ricans are U.S. citizens by birthright.1130 With hundreds of

thousands having recently fled Puerto Rico after Hurricane María, states and counties on the

mainland should not be remiss in their dutiesto provide bilingual ballots, poll workers, and election

materials, including voter registration forms and instructions, to Puerto Ricans protected under

Section 4(e).

1131 The recent diaspora only adds to current unmet needs. On the Island, the official

government language is Spanish, public education is conducted in Spanish, and over 78 percent of

adults are limited-English proficient.1132 The diaspora’s needs span many states, but the need is

most urgent in Florida, where over 200,000 evacuees have arrived since María of Puerto Rico and

 

1125 See Chapter 3, Voter Fraud and Other Arguments, at notes 669-709 supra, and sources cited therein. 1126 Tucker, Enfranchising Language Minority Citizens, supra note 152. 1127 Jose Enrique Idler, En Ingles, Por Favor, NAT’L REV. (Mar. 8, 2006), http://www.aei.org/publication/en-inglespor-favor/. 1128 Asian Americans Advancing Justice, Written Testimony, supra note 1114, at 15 (examples of turnout increasing 

by 40-50 percent); see also Melissa J. Marschall & Amanda Rutherford, Voting Rights for Whom? Examining the 

Effects of the Voting Rights Act on Latino Political Incorporation, 60 AMERICAN J. POL. SCI., 590 (July 2016) 

(finding increasing Latino representation on school boards correlating with 203 compliance) [hereinafter Marschall 

& Rutherford, Voting Rights for Whom?]; see also Fraga & Merseth, Examining the Causal Impact, supra note 1114 

(“analysis attributes a significant increase in Latino voter registration and Asian American turnout to coverage under 

[Section 203 of] the VRA”). 

1129 52 U.S.C. §10303(e)(1). 1130 Puerto Rican Org. for Political Action v. Kusper, 350 F. Supp. 606, 609 (N.D. Ill. 1972) (citing the provisions of 

the Immigration & Nationality Act amended by the Jones Act of 1917, which retroactively clarified that Puerto 

Ricans are U.S. citizens by birthright).

1131 See e.g., Briefing Transcript, supra note 234, at 267 (statement by Juliana Cabrales). 1132 Generated by Commission staff, using American FactFinder. See U.S. Census Bureau, American Community 

Survey 2011-2015 selected Population Tables: Age, by Language Spoken at Home, by Ability to Speak English for 

the Population 5 Years and Over, U.S. CENSUS BUREAU, https://factfinder.census.gov.
186 An Assessment of Minority Voting Rights Access

over a dozen counties with high levels of Puerto Ricans—such as Brevard, Duvall, and Pasco

counties, which were each already home to over 20,000 Puerto Ricans—still conduct their

elections either in English only or mainly in English.

1133

Section 203 was added to the VRA in 1975, based upon Congressional findings that:

[V]oting discrimination against citizens of language minorities is pervasive and

national in scope. Such minority citizens are from environments in which the

dominant language is other than English. In addition they have been denied equal

educational opportunities by State and local governments, resulting in severe

disabilities and continuing illiteracy in the English language. The Congress further

finds that, where State and local officials conduct elections only in English,

language minority citizens are excluded from participating in the electoral

process. . . The Congress declares that, in order to enforce the guarantees of the

fourteenth and fifteenth amendments to the United States Constitution, it is

necessary to eliminate such discrimination by prohibiting English-only elections,

and by prescribing other remedial devices.1134

Section 203 applies when a two-pronged threshold is met showing that: (1) the inherent need of

voters is evidenced by more than 5 percent or 10,000 citizens of voting age in the language

minority group being LEP, or in Indian Reservations where a whole or part of the population meets

the 5 percent threshold;1135 and (2) “the illiteracy rate of the citizens in the language minority as a

group is higher than the national illiteracy rate.”1136 The legal definition of LEP is those persons

who are “unable to speak or understand English adequately enough to participate in the electoral

 

1133 See 2011-2016 ACS Census Table B03001. For example, Duval County Letter from Demos and LatinoJustice 

PRLDEF to Mike Hogan, Duval County Supervisor of Elections at 2 (Apr. 3, 2018), 

http://www.demos.org/sites/default/files/imce/Letter%20to%20Florida%204E%20Counties-Duval.pdf. The Letter in 

part states:

For example, your website, which provides extensive voter information, including a linked to the voter 

registration form, is in English-only. And while Google Translate is offered for limited voter information, the 

translation offered by this service is inadequate to ensure voters can obtain the information they need and does 

not satisfy Duval County’s legal obligations. Critically, the county’s voter guide, sample ballots, and candidate 

information are not available in Spanish at all. 

See also Duval County, Register to Vote, https://www.duvalelections.com/Voter-Information/Register-to-VoteUpdate-Address-Name-Party#register (last accessed June 12, 2018); see also Florida Voter Registration Form, 

https://www.duvalelections.com/Portals/Duval/Documents/Voter%20Registration%20Form/webappform.pdf

(showing that the Registration form is only available online in English and that those who desire a form in Spanish 

have to call the Election Supervisor in their county). 

1134 52 U.S.C. § 10303(f)(1). 1135 Section 203 applies in jurisdictions in which more than 5 percent of citizens of voting age are members of a 

single language minority group and are LEP; in which over 10,000 citizens of voting age meet the same criteria; and 

in Indian Reservations in which a whole or part of the population meets the 5 percent threshold. 52 U.S.C. § 

10503(b)(2)(A)(i). 

1136 52 U.S.C. § 10503(b)(2)(A)(ii). 
Chapter 3: Recent Changes in Voting Laws and Procedures 187

process.”1137 The U.S. Census Bureau makes determinations of which jurisdictions are covered by

Section 203 every 5 years.

1138 In December 2016, the Census Bureau found that 263 jurisdictions

across the country met the threshold for coverage under Section 203 of the VRA.1139 The Census

found “68,800,641 eligible voting-age citizens in the covered jurisdictions, or 31.3% of the total

U.S. citizen voting-age population.”1140 Moreover, 16,621,136 Latino, 4,760,782 Asian, and

357,409 American Indian and Alaska Native voting-age citizens live in the covered

jurisdictions.1141 These jurisdictions are found on the following map:

 

1137 52 U.S.C. § 10503(b)(3)(B). 1138 See, e.g., Vol. 81, No. 233 Fed. Reg. 87532. 1139 Press Release, U.S. Census Bureau, Census Bureau Releases 2016 Determinations for Section 203 of the Voting 

Rights Act (Dec. 5, 2016), https://www.census.gov/newsroom/press-releases/2016/cb16-205.html. 1140 Id. 1141 Id.
188 An Assessment of Minority Voting Rights Access

Figure 10: Section 203 Determinations, Effective December 20161142

These jurisdictions must provide “registration or voting notices, forms, instructions, assistance, or

other materials or information relating to the electoral process, including ballots”1143—and oral

assistance in the covered languages.1144 The covered language communities are as follows: 1145

Alaskan Althabascan 

Aleut

American Indian (All other 

American Indian Tribes)

American Indian (Apache)

American Indian (Choctaw)

 

1142 U.S. Census Bureau, United States Section 203 Determinations Coverage eff. December 2016, Reference Map, 

https://www2.census.gov/programs-surveys/decennial/rdo/reference-maps/2016/8c-section203map2016.pdf

[hereinafter U.S. Census Bureau, Section 203 Determinations Coverage]. 1143 52 U.S.C. § 10503(b)(3)(A). 1144 52 U.S.C. § 10503(c) (oral assistance required in addition to written translation). Oral assistance is also required 

as the primary means of language access when “the language of the applicable minority group is oral or unwritten on 

in the case of Alaskan natives and Americans Indians, if the predominant language is historically unwritten.” 52 

U.S.C. §10503(c). 

1145 U.S. Census Bureau, Section 203 Determinations Coverage, supra note 1142. 

American Indian (Navajo)

American Indian (Pueblo)

American Indian (Ute)

Asian Indian

Bangledeshi

Cambodian
Chapter 3: Recent Changes in Voting Laws and Procedures 189

Chinese (including Taiwanese)

Filipino

Inupiat

Korean

Spanish

Vietnamese

Yup’ik 

Table 6: Number and Percent of Covered Jurisdictions by Minority Language Group 

(December 2016)1146

Language minority group Number of Covered Jurisdictions Percent

Asian Languages/API 45 14.1%

Native Languages 57 17.9%

Spanish 217 68.0%

Total 319 100%

In a 2012 post-election survey, 63 percent of Asian-American voters said language assistance

would be helpful for them.1147 Moreover, when language assistance rights are enforced, turnout

among Asian-American voters has been documented to increase fairly significantly,1148 and the

ability to elect Asian-American candidates to represent the community has also been documented

to increase when LEP voters are provided with federally required language assistance so that they

can fully understand the ballot and voting procedures.1149 However, compliance with the language

access requirements of the VRA has been lacking.

Advancing Justice submitted a statement to the Commission discussing the rapid growth of the

Asian-American population in recent years,1150 with “a parallel increase among Asian-American

voters, from 2 million voters in 2000 to over 5 million in 2012,” and “an average increase of

747,500 voters per presidential election cycle from 2000 to 2016.”1151 Advancing Justice then

documented widespread failure across the country to provide language access as required by the

minority language provisions of the VRA, with a sizeable impact.

1152

 

1146 Calculated by Commission staff based on U.S. Census Bureau Section 203 Determinations. Id. 1147 Asian Americans Advancing Justice, Written Testimony, supra note 1114, at 2. 1148 Id. at 15 (examples of turnout increasing by 40-50 percent). 1149 Id. at 16. 1150 Id. at 2. 1151 Id. 1152 Id. at 9-10. See also Marschall & Rutherford, Voting Rights for Whom?, supra note 1128, at 594-95 (explaining 

that 80 percent of surveyed, covered jurisdictions’ election practices fell short of full compliance with language 

assistance requirements, the effect of which is evidenced by the fact that Latino turnout significantly increases after 

DOJ enforcement actions are brought in some of those previously nonconforming jurisdictions); see also Fraga & 
190 An Assessment of Minority Voting Rights Access

In 2012, the organization’s poll monitoring in over 900 precincts serving Asian Americans1153

found that:

x Poll workers were often unaware of the availability of translated materials, did not properly 

display the translated materials (with one-third of all polling sites monitored having low 

visibility or no display of materials), and exhibited an unwillingness to display translated 

materials when requested.

x Polling sites did not provide adequate notice of assistance available, including inadequate 

translated directional signs outside to guide voters to polling sites and poor or no display 

of “we speak” or “we can assist you” signs indicating language assistance available at the 

location. 

x In almost all the jurisdictions monitored, there was a lack of bilingual poll workers. Almost 

half of the polling sites that did have bilingual poll workers failed to provide identification 

of bilingual poll workers and those bilingual poll workers failed to proactively approach 

voters needing language assistance. 

x Poll workers lacked knowledge about language assistance requirements and other voting 

laws, such as whether voters must present photo identification.

1154

The Commission received a similar post-briefing statement from the National Association of

Latino Elected and Appointed Officials (NALEO) Educational Fund. NALEO’s North Carolina

Director, Juliana Cabrales, also provided oral public comments at the briefing. On the basis of

what NALEO learned from their election protection hotline fielding reports from poll observers

and partnerships with peer organizations at the polls in North Carolina, Cabrales is “most acutely

concerned that election officials do not have a good understanding of their obligation to provide

language assistance protections in polling places.”1155 Without appropriate training, poll workers

simply do not provide or even allow LEP voters to receive translation.1156 In addition, NALEO

states that:

Nationwide, there are more than 11 million adult U.S. citizens who are not yet fully

fluent in English and may need language assistance with registering to vote and

casting ballots. In North Carolina, more than 65,000 eligible voters are Spanishspeakers who may not be able to vote using English-language materials, and an

additional 60,000 speak some other language but are not yet fully fluent in English.

 

Merseth, Examining the Causal Impact, supra note 1114, at 34 (demonstrating that compliance with VRA language 

assistance requirements is lower than reported by the Government Accountability Office). 

1153 Many jurisdictions cite the difficult undertaking of complying with language access requirements for a wide 

range of different languages given a lack of resources. For example, the Alaska State Advisory Committee received 

testimony regarding the difficulty of providing sufficient resources and trained poll workers to comply with 

language access requirements due to the range of languages and various dialects for certain languages. James 

Tucker, Testimony, Hearing before Alaska State Advisory Committee to the U.S. Comm’n on Civil Rights, Mar. 1, 

2018, Transcript at 69, 71, https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155497&cid=234). 1154 Asian Americans Advancing Justice, Written Testimony, supra note 1114, at 9-10. 1155 NALEO, Written Testimony for the U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 2. 1156 Id. at 2. 
Chapter 3: Recent Changes in Voting Laws and Procedures 191

In light of demographic and social changes, including the trend of Puerto Ricans

moving to the mainland, these numbers will increase. Thus, it is critical that

everyone engaged in administering elections is aware of VRA provisions

concerning language assistance with voting. We have received reports of incidents

that indicate that some North Carolina election administrators may not fully

understand or have taken appropriate action to implement their obligations under

Sections 4(e) and 208 of the VRA to ensure that Americans are able to cast

informed ballots regardless of their ability to speak English.1157

Section 203 requires bilingual ballots, assistance, and election materials for Spanish-speakers in

217 of the 263 (82.5 percent) jurisdictions that were determined to fall under its coverage formula

in December 2016. But historically and in recent years, there has been widespread noncompliance

and under-compliance.1158 At the Commission’s Texas SAC briefing on voting rights, MALDEF’s

Ernest Herrera stated that in 2016, MALDEF found that many counties in Texas failed to provide

election information in Spanish.1159 As shown above, under Section 203 of the VRA, the state of

Texas is required to provide bilingual election materials and assistance.1160

Prior to Shelby County, Section 4(f)(4) and Section 5 of the VRA clearly required preclearance of

any changes in the provision of language access in the formerly covered jurisdictions. After the

Shelby County decision, the DOJ stated that it believed that it could no longer require preclearance

of any changes in language materials in these jurisdictions. In testimony before the Commission’s

Texas SAC, AALDEF’s Jerry Vattamala stated that the loss of preclearance impacted language

access, because formerly covered jurisdictions no longer have to submit language assistance plans

or any changes to them for DOJ review to determine if the changes would be retrogressive. He

added that the post-Shelby County loss of federal observers impacts language access compliance

as well.1161

And at the Commission’s national briefing, Vattamala testified that the Shelby County decision

has negatively impacted language access for Asian-American voters. Prior to Shelby County, the

preclearance rules enabled AALDEF to enforce the rights of LEP voters in New York City, which

is a formerly covered jurisdiction.1162 He added important context about current conditions, as

follows:

 

1157 Id. at 1-2. 1158 See, e.g., Matthew Higgins, Note, Language Accommodations and Section 203 of the Voting Rights Act, 67 

STANFORD L. REV. 917 (April 2015), http://www.stanfordlawreview.org/wpcontent/uploads/sites/3/2015/04/67_Stan_L_Rev_917_Higgins.pdf (“Section 203’s provisions, however, are often 

critically misunderstood and only partially implemented.”).

1159 Texas State Advisory Committee to the U.S. Comm’n on Civil Rights Transcript, Voting Rights in Texas, Mar. 

3, 2018, at 64, https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155615&cid=276 [hereinafter Texas 

SAC, Voting Rights Transcript]. 1160 See Figure 10, Section 203 Determinations, Dec. 2016, supra. 1161 Texas SAC, Voting Rights Transcript, supra note 1159, at 7-8. 1162 Vattamala, Written Testimony, supra note 454, at 5-6 (“Section 203 of the Voting Rights Act, requires some 

jurisdictions, including New York City, to provide translated ballots and voting materials as well as oral language 
192 An Assessment of Minority Voting Rights Access

Racist sentiment towards Asian Americans is not a passing adversity but a

continuing reality, fueled in recent years by reactionary post-9/11 prejudice and a

growing backlash against immigrants. Numerous hate crimes have been directed

against Asian Americans either because of their minority group status or because

they are perceived as unwanted immigrants.

Incidents of discrimination and racism like these perpetuate the misperception that

Asian American citizens are foreigners, and have the real effect of denying Asian

Americans the right to fully participate in the electoral process. These barriers will

only increase as the Asian American population continues to grow. Asian

Americans have become the fastest growing minority group in the United States.

While the total population in the United States rose 10 percent between 2000 and

2010, the Asian American population increased 43 percent during that same time

span.

The fastest population growth occurred in the South, where the Asian American

population increased by 69 percent. With the coverage formula struck and no

current Section 5 coverage for these states, Asian Americans are susceptible to

extensive discrimination, both in voting and other arenas. When groups of

minorities move into or outpace general population growth in an area, reactions to

the influx of outsiders can result in racial tension.1163

Alaska had been covered under Section 5 since 1975. The Commission heard testimony regarding

repeated VRA violations constricting Native Americans’ voting rights in Alaska over a period of

years, particularly regarding language access, and notwithstanding repeated litigation over the

same points already litigated and resolved in court but then with persisting state noncompliance

following those resolutions. NARF’s Natalie Landreth testified before the Commission that she

believes that Alaska was properly covered under Section 5, due primarily to language access

violations and lack of accessible polling places for indigenous communities.1164 Alaska was one

of the last states to have a literacy test, as its literacy test was only abolished in 1972.1165 NARF

disagrees with the conclusion of the DC Court of Appeals that “states like Alaska” were “swept

in” to the VRA coverage formula based on “little or no evidence of current problems.”1166 NARF

 

assistance for voters with limited English proficiency. Three counties of New York City—New York, Kings, and the 

Bronx—were also covered by Section 5. When jurisdictions were covered under both Section 5 and Section 203, the 

combined provisions formed a powerful tool to ensure that language minorities had full access to political 

participation. In 1994, AALDEF asked the Justice Department to deny preclearance of New York City's Chinese 

Language Assistance Program, which failed to include candidate names in Chinese on the voting machine ballots. 

As a result, New York City was forced to provide fully translated bilingual ballots, affecting 55,000 ChineseAmerican voters.”).

1163 Vattamala, Written Testimony, supra note 454, at 7 (footnotes omitted). 1164 Landreth, Written Testimony, supra note 1099, at 2-4. 1165 Id. at 1. 1166 Id. (quoting Shelby Cty., 679 F.3d at 881, rev’d, 570 U.S. 529). 
Chapter 3: Recent Changes in Voting Laws and Procedures 193

points instead to case after case of current and ongoing language access violations in Alaska.1167

Despite NARF’s victories in expensive and time-consuming litigation in the state of Alaska, the

state of Alaska has refused to comply with Section 203 and NARF has had to sue repeatedly.1168

At its briefing on voting rights in March 2018, the Commission’s Arizona SAC also received

testimony on language access for Native American voters.1169 A county recorder testified in

support of cost-efficient measures like ballot-by-mail elections but said that “strict requirements”

were needed for counties with Native American populations.1170 In particular, she pointed out that

some Native American languages are not traditionally written, and could not be handled with a

written ballot sent to an interpreter.1171 Instead, there needed to be a physical polling place “so

those voters that need the language assistance can come and get the [oral] assistance they need.”1172

Accessibility Issues for Voters with Disabilities

As will be discussed below, widespread problems with inaccessibility for voters with disabilities

are evident from the testimony and underlying data received by the Commission. Section 208 of

the VRA, which provides for rights to assistance, has not been well-utilized to protect the rights

of every voter who “requires assistance to vote by reason of blindness, disability, or inability to

read or write.”1173

During the Commission’s national briefing, Michelle Bishop, Policy Director of the National

Disability Rights Network (NDRN), testified that many of America’s polling places are not

accessible to people with disabilities: according to one study, only 40 percent of nearly 200 polling

places examined had no barriers for voters with disabilities.1174 Bishop also testified that “closure

of polling places bears a significant impact on voter access for people with disabilities following

the Shelby County decision.”1175 Current Population Survey data from the 2016 election support

this testimony, with a sizable percentage of survey respondents stating that lack of disability access

prevented their voting.1176 Bishop also testified that 35.4 million persons with disabilities were

 

1167 Id. at 1-2 1168 Id. at 3-4. 1169 Arizona State Advisory Committee to the U.S. Comm’n on Civil Rights, Briefing, Mar. 9, 2018, Transcript at 

27-28. 1170 Id. 1171 Id. 1172 Id. 1173 52 U.S.C. § 10508. 1174 Briefing Transcript, supra note 234, at 141 (statement by Michelle Bishop, Disability Advocacy Speacialist for 

Voting Rights, National Disability Rights Network (NDRN)) (citing Government Accountability Office, Voters with 

Disabilities: Observations on Polling Place Accessibility and Related Federal Guidance (Dec. 2017), 

https://www.gao.gov/products/GAO-18-4). 1175 Barber, Written Testimony, supra note 392, at 3. 1176 U.S. Census Bureau, Voting and Registration in the Election of November 2016: Reasons for Not Voting, by 

Selected Characteristics, U.S. CENSUS BUREAU (last updated Apr. 25, 2018), 

https://www.census.gov/data/tables/time-series/demo/voting-and-registration/p20-580.html (showing that 11.7 

percent of surveyed people who did not vote cited an illness or disability as a reason for not voting). 
194 An Assessment of Minority Voting Rights Access

eligible to vote in 2016, and that persons with disabilities were disproportionately lower income

and had less access to voter ID, transportation, and funds.1177

Information gathered at the Commission’s SAC briefings on voting rights underscored these

concerns. The California SAC issued a voting rights report in 2017, specifically noting that

“disabled voters face unnecessary obstacles” to voting in that state.1178 The report quotes a

disability rights advocate who told the SAC that “parking and pathway situations frequently deter

the voter with disabilities from access, i.e. long walks after parking, obstructions, and inadequate

lighting.”1179 The Illinois SAC likewise noted particular impacts on voters with disabilities: after

a local group conducted voting access surveys, they found that voters with disabilities “were asked

to wait up to 30 minutes while judges or other volunteers attempted to get the accessible machines

working,” and other times, “voters with disabilities were told to come back and vote at another

time because a technician had to be called in to repair or set up the accessible voting system.”1180

Similarly, during its recent voting rights briefing, the Ohio SAC received testimony regarding

misperceptions of people with disabilities that can impede access to voting. Some of the biggest

misconceptions identified during the Ohio briefing are that a person with a disability cannot vote

because the person has a guardian, that a person cannot understand how to vote because the person

cannot verbally communicate, and that a person who is blind cannot complete a ballot.

1181 The

Committee also received testimony that there is a limited amount of data regarding voters with

disabilities, which negatively impacts the capacity of poll workers who may require more

information to understand how to work with people with disabilities.1182 Lack of adequate

accessible transportation, and the discriminatory impact of absentee paper ballots on people with

disabilities, are two more issues that voters with disabilities in Ohio face. Kerstin Sjoberg-Witt,

the Director of Advocacy and the Assistant Executive Director at Disability Rights Ohio,

advocated for alternatives to designating the power of attorney for voting, especially due to the

disproportionate number of people with disabilities who are low income and live in poverty, which

makes it harder for them to pay for a photo ID, afford public transportation to get to the polls, or

may result in a loss of housing that could then result in swift voter purging.1183 She noted that the

voter hotline that Disability Rights Ohio runs has been “pretty successful,” receiving 60 calls in

the last election alone.1184

 

1177 Barber, Written Testimony, supra note 392, at 2; see also Lisa Schur & Douglas Kruse, Projecting the

Number of Eligible Voters with Disabilities in the November 2016 Elections, Rutgers Univ., (Sept. 8, 2016), 

https://smlr.rutgers.edu/sites/default/files/documents/faculty_staff_docs/Kruse%20and%20Schur_Disability%20elec

torate%20projections%202016_9-8-16.pdf. 1178 Cal. Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Integrity in California: Issues and 

Concerns in the 21st Century 5 (June 2017), http://www.usccr.gov/pubs/07-24-Voting-Integrity-in-CA.pdf. 1179 Id. at 38. 1180 Illinois State Advisory Committee to the U.S. Comm’n on Civil Rights, Civil Rights and Voting in Illinois 42 

(Feb. 2018), http://www.usccr.gov/pubs/2018/IL-Voting-Rights.pdf. 1181 Ohio SAC, Voting Rights Briefing, supra note 986, at 15-16 (statement by Kerstin Sjoberg-Witt). 1182 Id. 1183 Id. at 18. 1184 Id.
Chapter 3: Recent Changes in Voting Laws and Procedures 195

The New Hampshire SAC received testimony that some polling locations still have physical

barriers to access, and that some poll workers are not receptive to people with disabilities.1185 The

SAC reported that in 2013, none of the New Hampshire polling locations had set up an accessible

voting system, and therefore in municipal elections that year 100 percent of disabled voters were

unable to vote privately and independently.1186

Polling place access for persons with disabilities is protected by the Americans with Disabilities

Act (ADA), HAVA, NVRA, and the Voting Accessibility for the Elderly and Handicapped Act;

1187

however, while those statutory protections are important and the above testimony indicates that

they may be under-enforced, this report is limited to evaluation of VRA issues.

At the Commission’s national briefing, Bishop testified that Section 208 of the Voting Rights Act,

which allows votersto be assisted by a person of their choice,should be used to ensure accessibility

for persons with disabilities.1188 Section 208 provides that:

Any voter who requires assistance to vote by reason of blindness, disability, or

inability to read or write may be given assistance by a person of the voter’s choice,

other than the voter’s employer or agent of that employer or officer or agent of the

voter’s union.1189

Following the briefing, Bishop supplemented her testimony with further information about how

Section 208 would operate in regard to accessibility issues she testified about. She explained that:

Voters who are blind, have another type of disability, experience difficulty with

English, or experience difficulty with reading and writing should, first and

foremost, be provided with the proper tools and accommodations to be able to vote

with complete privacy and independence, as guaranteed by the Help America Vote

Act (HAVA).1190 The ability to provide an electronic interface and audio ballots to

voters with disabilities has drastically increased the number of voters with

disabilities who are able to vote. Providing ballots and supplementary materials to

voters that are accessibly designed and use plain language, as described by

www.plainlanguage.gov, would also enhance progress made toward providing a

private and independent ballot for all eligible Americans.

Yet as we work actively toward realizing the full promise of HAVA and ensuring

a private and independent ballot for all eligible voters, people with disabilities rely

on the protections of Voting Rights Act Section 208 to participate in the electoral

 

1185 Woolpert, N.H. 2014 Transcript, at 37. 1186 New Hampshire SAC, Voting Rights Report, supra note 5. 1187 42 U.S.C. §§ 12101-12213 (ADA); 52 U.S.C. §§ 20910-21145 (HAVA); 52 U.S.C. §§ 20501-20511 (NVRA); 

52 U.S.C. §§ 20101-20107 (Voting Accessibility for the Elderly and Handicapped Act). 1188 Briefing Transcript, supra note 234, at 184 (statement by Michelle Bishop, Disability Advocacy Specialist for 

Voting Rights, National Disability Rights Network (NDRN)). 1189 52 U.S.C. § 10508 (emphasis added). 1190 52 U.S.C. § 21081(a)(3)(A) et seq.
196 An Assessment of Minority Voting Rights Access

process. Section 208 is and will always be a vital piece of our democracy, by

allowing voters to bring a person of their choosing (excluding the voter's employer

or union representative) to assist him or her in casting a ballot. This right is critical

for voters who are taking a leap of faith by trusting another to cast their ballot as

intended and should not have to put that faith in strangers. Further, it eases the strain

on election workers and prevents issues with long lines by reducing the number of

instances in which two election workers, of differing parties, must stop their other

duties to provide direct assistance to a voter. Section 208 protections are a key

component in boosting voter confidence while ensuring that Election Day runs

smoothly.1191

Bishop added that the DOJ should provide additional guidance clarifying how Section 208 should

and should not be interpreted by the states.1192 She argues that states should be prevented from

passing additional language that restricts who can use Section 208 assistance.

1193

The Commission’s review of Section 208 litigation indicates that DOJ appears to have limited its

enforcement of Section 208 to language access cases;1194 however, the statutory language quoted

above clearly shows that Section 208 applies to persons with disabilities.1195

Also, in five known cases, private parties enforced Section 208 to protect the rights of voters with

disabilities. Below is a chart of all known Section 208 cases since 1985, which includes the five

known Section 208 cases that were brought on behalf of persons with disabilities. None of these

cases were brought by DOJ.

Table 7: Analysis of Cases Filed Under Section 208 of the VRA Since 1985:

Case Name

Year 

Filed Filed By

Claim made on 

behalf of persons 

with disabilities?

Language 

Access 

claim?

OCA-Greater Houston 

v. Texas 2017

Organization for Chinese 

Americans No Yes

United States v. 

Fort Bend County, TX 2009 DOJ No Yes

United States v. Salem County 

and the Borough of Penns Grove, 

NJ, et al 2008 DOJ No Yes

Ray v. Texas 2008

Willie Ray, Jamillah 

Johnson and others Yes No

 

1191 Michelle Bishop, Supplemental Written Testimony for the U.S. Comm’n on Civil Rights, Mar. 19, 2018 at 1. 1192 Id. at 2. 1193 Id. 1194 See Table 7, and Discussion and Sources cited at notes 1464-65, infra. 1195 52 U.S.C. § 10508.
Chapter 3: Recent Changes in Voting Laws and Procedures 197

Case Name

Year 

Filed Filed By

Claim made on 

behalf of persons 

with disabilities?

Language 

Access 

claim?

United States v. 

Kane County, IL 2007 DOJ No Yes

United States v. 

Hale County, TX 2006 DOJ No Yes

United States v. 

Brazos County 2006 DOJ No1196 Yes

United States v. 

City of Springfield, MA 2006 DOJ No Yes

United States v. 

City of Philadelphia, PA 2006 DOJ No Yes

Qualkinbus v. Skuhisz 2004

Michelle Markiewicz 

Qualkinbush (mayor) No No

American Association of People 

with Disabilities 

v. Hood 2003

American Association of 

People with Disabilities Yes No

United States v. 

Berks County 2003 DOJ No Yes

United States v. 

Osceola County 2002 DOJ No Yes

United States v. 

Miami-Dade County 2002 DOJ No Yes

United States v. 

Orange County 2002 DOJ No Yes

United States v. 

Passaic County 1999 DOJ No Yes

Holton v. Hollingsworth 1999

Buddy Holton (losing 

mayoral candidate) No No

Nelson v. Miller 1996

King Nelson, Karla 

Hudson, Charles Austin, 

Walter R. Saumier, Yes No

 

1196 U.S. Dep’t of Justice, Cases Raising Claims Under the Minority Provisions of the Voting Rights Act, 

https://www.justice.gov/crt/cases-raising-claims-under-language-minority-provisions-voting-rights-act#brazos (last 

updated Oct. 16, 2015). Although the DOJ summary of the case states that, “The United States also alleged that 

Brazos County violated Section 208 by failing to ensure that voters who were disabled, blind, or illiterate were 

allowed to use their chosen assistors,” the complaint does not make that entirely clear; furthermore, the consent 

decree limits the 208 remedies to Spanish-speaking voters, by only requiring that: 

 3. Defendants shall ensure that Spanish-speaking voters are permitted assistance from persons of the 

voters’ choice, other than the voters’ employers or agents of those employers or officers or agents of the 

voters’ unions, and that such assistance shall include assistance in the voting booth, including reading or 

interpreting the ballot and instructing voters on how to select the voters’ preferred candidates.

 4. Defendants shall ensure that in cases where a poll official is a Spanish-speaking voter’s assistor of 

choice, all poll officials shall make certain that the voter can receive such assistance from a trained 

bilingual poll official who can speak Spanish fluently. Consent Decree, Brazos Cty., No. 4:06-CV-02165, 

https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/brazos_cd.pdf. 
198 An Assessment of Minority Voting Rights Access

Case Name

Year 

Filed Filed By

Claim made on 

behalf of persons 

with disabilities?

Language 

Access 

claim?

Charlotte Czarnecki, Kyle 

Austin

DiPietrae v. 

City of Philadelphia 1995

Judge of Elections Patricia 

DiPietrae & disabled 

electors Bernard 

Bukowski, Mary Boice, 

Marina Domit & Maryanne 

Hildenberger Yes No

Jacobs v. Philadelphia County 

Board of Elections 1995

Disabled in Action of 

Pennsylvania Yes No

Cruz v. 

Ysleta Del Sur Tribal Council 1993

Lionel and Rebecca Cruz 

(Tigua Indian Tribe 

members) No No

Thirteen Ballots Cast in 1985 

General Election in Burlington 

County 1985 N/A Unclear No

Source: Internal Legal Research (based on DOJ website and Westlaw search)
Chapter 4: Examining the Data 199

CHAPTER 4: EXAMINING THE DATA

This chapter examines and analyzes relevant voter registration, turnout, and trends in litigation

brought to enforce Section 2 of the Voting Rights Act (VRA), in terms of whether these data points

measure discrimination. The first part of this chapter examines and analyzes voter registration and

turnout in recent presidential elections (2000-2016), and the second part examines VRA litigation

trends, with a focus on successful Section 2 VRA cases from 2006 to present.1197 As discussed

below, the data show ongoing indicia of discrimination in various categories.

Voter Registration and Turnout Statistics

In all states except North Dakota, voters must first register before they can vote.1198 This two-step

process arguably helps ensure eligibility, but it can also lead to significant barriers to the ballot,

and voter registration rules vary widely from state to state.1199 Eligible voters often cite voter

registration or registration problems as one of the reasons they did not turn out to vote.1200

According to a 2016 study by Nonprofit VOTE, more than 25 percent of eligible voters are not

registered to vote.1201 Figure 11 illustrates the trend of voter registration rates by race and ethnicity

from 2000 to 2016.

 

1197 The term “successful” is defined in note 1306, infra. 1198 DMV.org, Voter Registration in North Dakota, DMV.ORG, https://www.dmv.org/nd-north-dakota/voterregistration.php (last accessed June 6, 2018) (“North Dakota bears the unique distinction that it does not require 

voters to register prior to Election Day. You may simply bring acceptable proof of ID and residency to the polls in 

order to vote (see below). Each precinct is responsible for governing its own election process, and the Secretary of 

State has a “central voter file” in which all county auditors share their precinct’s voter list.”); see also Discussion 

and Sources cited in notes 710-31 supra (overview of voter registration rules and issues). 1199 See notes 710-18 supra (discussing voter registration procedures ranging from same-day registration in some 

states to much stricter rules in other states, their impact on voters of color, and at note 712, according to NALEO 

“[r]acial and ethnic disparities in civic participation begin at registration.”).

1200 See Table 8 (analyzing data from the Current Population Survey that asked potential voters why did not turn out 

to vote in the recent presidential election). 

1201 Nonprofit VOTE & U.S. Elections Project, America Goes to the Polls 2016: a Report on Voter Turnout in the

2016 Election, NONPROFIT VOTE & U.S. ELECTIONS PROJECT (2016), 19 

http://www.nonprofitvote.org/documents/2017/03/america-goes-polls-2016.pdf [hereinafterNonprofit VOTE&

U.S. Elections Project, America Goes to the Polls 2016].
200 An Assessment of Minority Voting Rights Access

Figure 11: Voter Registration by Race and Ethnicity and Year

Source: Figure created by Commission staff using Current Population Survey data

Figure 12: Which of the following was the MAIN reason you did not register to vote?

Source: Figure created by Commission staff using Current Population Survey data
Chapter 4: Examining the Data 201

Figure 12 illustrates the (self-reported) main reasons potential voters did not vote. The

Commission also analyzed Current Population Survey data1202 to examine whether the reasons

potential voters stated that they did not register to vote in the 2016 election differed by their selfreported racial group. Table 8 illustrates that across all groups, disinterest in the election or politics

was the primary reason why potential voters did not register to vote, but the percentage reporting

this reason was slightly higher for potential white voters. Potential racial minority voters also

reported a higher percentage of ineligibility compared to potential white voters. In addition, 4

percent of Latino potential voters and 10 percent of Asian-American or Pacific Islander potential

voters reported language concerns as the main reason for not registering to vote, while this reason

was only 1 percent or less for other groups.

 

1202 U.S. Bureau of Labor Statistics & U.S. Census Bureau, History of the Current Population Survey, CENSUS 

BUREAU (2006), https://www.census.gov/prod/2006pubs/tp-66.pdf [hereinafter Census Bureau, History of the CPS].
202 An Assessment of Minority Voting Rights Access

Source: Figure created by Commission staff using Current Population Survey data

Table 8: Which of the following was the MAIN reason you did not register to vote?

Race

Did not meet 

registration 

deadlines

Did not 

know 

where 

or how 

to 

register

Did not meet 

residency 

requirements

Permanent 

illness or 

disability

Difficulty 

with 

English

Not 

interested 

in the 

election 

or not 

involved in 

politics

My vote 

would not 

make a 

difference

Not 

eligible 

to vote

Other 

Reason Total

White 12% 3% 2% 6% 1% 47% 6% 5% 18% 100%

Black 14% 3% 2% 7% 1% 39% 5% 12% 17% 100%

Latino 13% 5% 4% 4% 4% 39% 5% 13% 13% 100%

Native American 18% 4% 2% 4% 0% 34% 3% 9% 26% 100%

Asian American/ 

Pacific Islander

12% 4% 5% 2% 10% 38% 3% 11% 14% 100%

Multiracial 12% 3% 6% 6% – 38% 5% 3% 28% 100%
Chapter 4: Examining the Data 203

Perspectives on Voter Turnout as a Measure of Discrimination

There are multiple views as to whether voter turnout is an appropriate measure of discrimination,

and how voter turnout data should be evaluated by courts in VRA litigation. In the Shelby County

decision, in looking at the preclearance formula, the Supreme Court stated that disparities in

turnout between African-American and white voters have been nearly eliminated.1203 As discussed

below, the Supreme Court’s decision did not compare the turnout rates of other races. There is also

a circuit split among the courts of appeals as to whether decreasing voter turnout is needed to prove

a violation of Section 2 of the VRA in the post-Shelby County era. The Sixth Circuit has suggested

that evidence of turnout disparities along racial lines is necessary to prove a Section 2 violation in

vote denial cases.

1204 Similarly, the Seventh Circuit held that the failure to show evidence that a

voter ID law resulted in a reduction of voter turnout levels was fatal to the plaintiffs’ case.

1205 But

the Fourth Circuit held that discrimination against black voters occurred even though black turnout

increased in 2014, stating that, “No law implicated here—neither the Fourteenth Amendment nor

§ 2 [of the VRA]—requires such an onerous showing [of a decrease in voter turnout].”1206 More

specifically, the Fourth Circuit reasoned that in North Carolina:

[A]lthough aggregate African American turnout increased by 1.8% in 2014, many

African American votes went uncounted . . . which would have been counted absent

[the voting change]. And thousands of African Americans were disenfranchised

because they registered during what would have been the same-day registration

period but because of [the voting change] could not then vote. Furthermore, the

district court failed to acknowledge that a 1.8% increase in voting actually

represents a significant decrease in the rate of change. For example, in the prior

four-year period, African American midterm voting had increased by 12.2%.

1207

Additionally, in the Fifth Circuit’s evaluation of Texas’ strict voter ID law, the State had argued

that reduced turnout is needed to show a Section 2 violation. Specifically, Texas argued literacy

tests would be struck down under Section 2, “only if plaintiffs could show a resulting ‘denial of

equal opportunity,’ i.e., a ‘voter turnout disparity.’”1208 But in response, the Fifth Circuit stated

that: “We decline to cripple the Voting Rights Act by using the State’s proposed analysis.”1209 It

reasoned that “[a]n election law may keep some voters from going to the polls, but in the same

election, turnout by different voters might increase for some other reason. That does not mean the

 

1203 See Shelby Cty., 570 U.S. at 548 (including the chart of black/white turnout gaps reproduced in the Court’s 

opinion).

1204 See Ohio Democratic Party v. Husted, 834 F.3d 620, 639 (6th Cir. 2016) (rejecting a challenge to early voting 

reduction, where the cutbacks went into effect and African-American participation was at least equal to that of white 

voters).

1205 See Frank, 768 F.3d at 747. 1206 McCrory, 831 F.3d at 232. 1207 Id. (emphasis in original) (internal citations omitted). 1208 Veasey, 830 F.3d at 260. 1209 Id. at 261.
204 An Assessment of Minority Voting Rights Access

voters kept away were any less disenfranchised;”1210 and so the Fifth Circuit concluded that “while

evidence of decreased turnout is relevant, it is not required to prove a Section 2 claim.”1211

During the Commission’s briefing, voting rights experts testified that turnout alone is not

necessarily an appropriate measure of whether there is ongoing discrimination in voting.1212 For

example, Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and

Educational Fund, told the Commission that the legal test of whether a voting system is

discriminatory should not be turnout, but rather whether voters of color do not have equal access

to political participation.1213 This is also shown by the statutory language of Section 2 of the VRA,

which prohibits not only denial of the right to vote, or being unable to vote, but also abridgment

of equal access to the ballot.1214 The Director-Counsel also stated:

 

1210 Id. at 260. 1211 Id. at 261. 1212 E.g., Briefing Transcript, supra note 234, at 134-136 (statement by Sherrilyn Ifill). 1213 Id. 1214 See 52 U.S.C. § 10301(a) (Section 2 is titled “Denial or abridgement of right to vote on account of race or color 

through voting qualifications or prerequisites” and subsection (a) provides that “[n]o voting qualification or 

prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political 

subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States on 

account of race or color or [membership in a language minority group]”); see also § 10301(b) (“A violation of 

subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading 

to nomination or election in the State or political subdivision are not equally open to participation by members of a 

class of citizens protected by subsection (a) in that its members have less opportunity than other members of the 

electorate to participate in the political process and to elect representatives of their choice. The extent to which 

members of a protected class have been elected to public office in the State or political subdivision is one 

circumstance which may be considered: Provided, That nothing in this section establishes a right to have members 

of a protected class elected in numbers equal to their proportion in the population.”). See also Gingles, 478 U.S. at 

36-37: “The Senate Judiciary Committee majority Report accompanying the bill that amended § 2, elaborates on the 

circumstances that might be probative of a § 2 violation, noting the following ‘typical factors:’

1. the extent of any history of official discrimination in the state or political subdivision that touched 

the right of the members of the minority group to register, to vote, or otherwise to participate in the 

democratic process;

2. the extent to which voting in the elections of the state or political subdivision is racially polarized;

3. the extent to which the state or political subdivision has used unusually large election districts, 

majority vote requirements, anti-single shot provisions, or other voting practices or procedures that 

may enhance the opportunity for discrimination against the minority group;

4. if there is a candidate slating process, whether the members of the minority group have been denied 

access to that process;

5. the extent to which members of the minority group in the state or political subdivision bear the 

effects of discrimination in such areas as education, employment and health, which hinder their ability 

to participate effectively in the political process;

6. whether political campaigns have been characterized by overt or subtle racial appeals;

7. the extent to which members of the minority group have been elected to public office in the 

jurisdiction.

Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to 

establish a violation are:
Chapter 4: Examining the Data 205

[T]he harm is not about a number on the sheet, as to whether turnout went up or

whether turnout went down. If a law is created, particularly for the purpose... if a

legislature meets and passes a law for the purpose of suppressing the votes of a

particular group or if a law is passed knowing that it’s going to have the affect it’s

going to have, or as Ms. Landreth described, simply not knowing because you

haven’t taken the time to figure out the fact that this polling place is not connected

to another polling place by land. That’s a problem of democratic governance.

1215

The Director-Counsel added that turnout is not the only measure of whether there is discrimination

in voting, as voters of color work hard to overcome structural impediments to voting such as,

historically, poll taxes or recently, waiting longer in line on Election Day. Other panelists agreed

strongly with this assessment.1216 Rosenberg emphasized that, “using voter turnout is a very, very

weak metric. . . . [W]e know that in Texas for example 600,000 Texans, predominantly black and

Hispanic voters, did not have the required ID. It was two to three times more difficult for them to

get the ID.”1217

In contrast, others argued that increasing turnout affirmatively shows decreasing discrimination.

Cleta Mitchell of Foley & Lardner LLP stated that there is “no evidence” that changes to state

election laws since the Shelby County decision have resulted in denying anyone the right to

vote.1218 The panelist further argued that statements claiming that the Shelby County decision had

an effect on minority voter turnout are “weak at best and likely non-existent,”1219 citing data from

the Heritage Foundation and arguing that African-American voter turnout increased in North

Carolina after voting law changes in 2013.1220 According to these data, the percentage of voting

age population of African-American voters in North Carolina who voted in the 2014 election was

41.1 percent, up from 38.5 percent in 2010. Based on these data, this panelist posits that the Shelby

County decision had “nothing to do” with voter turnout in 2014 and 2016.1221 Similarly, von

 

whether there is a significant lack of responsiveness on the part of elected officials to the particularized 

needs of the members of the minority group.

whether the policy underlying the state or political subdivision’s use of such voting qualification, 

prerequisite to voting, or standard, practice or procedure is tenuous.” 

Id. (quoting S. REP. NO. 97-417, at 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07). The above “typical” 

factors specify what Congress considered evidence that is not dispositive, but legally significant in establishing a 

Section 2 violation, and they do not include turnout.

1215 Briefing Transcript, supra note 234, at 135 (statement by Sherrilyn Ifill). 1216 Id. at 132-33 (statement by Ezra Rosenberg); Briefing Transcript, supra note 234, at 131-32 (statement by 

Natalie Landreth); Briefing Transcript, supra note 234, at 209-10 (statement by Dale Ho). 1217 Id. at 138 (statement by Ezra Rosenberg). 1218 Mitchell, Written Testimony, supra note 574. 1219 Id. 1220 Id. (citing Hans A. von Spakovsky, Election Reform in North Carolina and the Myth of Voter Suppression, THE 

HERITAGE FOUNDATION (July 2015), https://www.heritage.org/election-integrity/report/election-reform-northcarolina-and-the-myth-voter-suppression). 1221 Mitchell, Written Testimony, supra note 574, at 3.
206 An Assessment of Minority Voting Rights Access

Spakovsky also agreed that increases in black turnout suggest that preclearance is no longer needed

because higher turnout suggests that racial discrimination in voting is rare.1222

With the above in mind, the Commission reviewed voter turnout data from 2000 to 2016. These

data show that while black turnout has generally increased during this time period, it dipped in

2016,1223 and moreover, the prior increases occurred in spite of ongoing discrimination in voting.

For example, in Florida in 2012, black voters waited longer than others, but their turnout was still

relatively high.1224 In fact, as black turnout was increasing and expected to be high in 2012, early

voting was cut, causing congestion at the polls in 2012.1225 Among those who were able to wait

for many hours to vote,1226 their stories reflected a strong commitment to exercise the right to

vote.1227 Furthermore, black voter turnout in Florida could have been even higher without the long

lines, as some were not able to wait many hours to vote.1228 Barber testified to similar facts in

 

1222 Briefing Transcript, supra note 234, at 63-64 (statement by Hans A.von Spakovsky) (“If they were going to 

renew [preclearance], [Congress] had to base it on current conditions, and the reason they didn’t base it on current 

conditions in 2006 was because, as the Census itself has reported, registration and turnout in the covered states was 

on parity with, and in some places black turnout actually exceeded that of white turnout.”). In addition, von 

Spakovsky also suggested that racial discrimination in voting is rare as evidenced by the downward trend in the 

number of VRA enforcement actions that the Justice Department has pursued over the last eight years. See supra,

Chapter 5 for further discussion on the Department’s VRA enforcement.

1223 See infra, Figure 15, which demonstrates that African-American voter turnout went from about 66 percent in 

2012 Presidential Election to just under 60 percent in 2016 Presidential Election.

1224 Herron & Smith, Congestion at the Polls, supra note 974, at 9, 53. 1225 Id. at 3; see also Herron and Smith, Florida’s 2012 General Election under HB 1355: Early Voting, Provisional 

Ballots, and Absentee Ballots, at 1, http://electionsmith.files.wordpress.com/2013/01/lwv-pr-herron-smith.pdf. 1226 Herron & Smith, Congestion at the Polls, supra note 974, at 16 (Seven counties (Miami-Dade, Orange, Lee, 

Volusia, Pasco, St. Lucie, and Collier) reported having at least one precinct that did not close until after midnight); 

see also Terkel, supra note 971 (reporting that many voters waited for up upwards of 6 hours); see also Lauren 

Pastrana, M-D Early Voters: I Waited “Over Six” Hours to Vote, CBS MIAMI (Nov. 3, 2012), 

http://miami.cbslocal.com/2012/11/03/last-day-of-early-voting-opens-in-miami-dade/ (in Miami-Dade on the final 

Saturday of early voting, lines were 4-6 hours, according to the Supervisor of Elections website, and voters 

interviewed at the Coral Reef Library polling place said “it was exhausting,” that voters had brought chairs, water, 

and umbrellas to shield them from the sun on a hot day, while a woman with an oxygen tank waited 4 hours, and 

another who had voted in 2008 said he wasn’t planning to vote due to the lines being 5.5 hours long during early 

voting, which is “supposed to be early”).

1227 See, e.g., Advancement Project, Public Comment Submitted to the Presidential Commission on Election 

Administration for its public meeting in Miami, Florida, ADVANCEMENT PROJECT 10 (2013), 

http://b.3cdn.net/advancement/c6b7b9897418a7c930_o2m6iv5vl.pdf (last accessed June 7, 2018) (“Despite the long 

lines, Florida citizens showed up for early voting in record numbers. We saw it in the determination of voters like 

Desiline Victor. Victor, who at 102, due to fatigue, had to leave her polling place at North Miami Library after 

waiting in line for three hours, only to insist on returning later with members of our staff to cast her ballot. When she 

emerged from the polling place wearing her “I voted” sticker after casting her ballot, hoping this is not the last time 

she will do so, the crowds still waiting to vote erupted in applause. We saw when Florida poll workers closed their 

doors on an unexpectedly massive crowd of early voters, only to be met with chants of “We want to vote! We want 

to vote!” We saw it in black church leaders who, in response to Florida’s elimination of the last Sunday of early 

voting, set a new date for their community’s popular “Souls to the Polls” voter mobilization campaign—and made 

history with a larger-than-ever early voting turnout.”). 1228 See, e.g., Scott Powers & David Damron, Analysis: 201,000 in Florida didn’t vote because of long lines, 

ORLANDO SENTINEL (Jan. 29, 2013), http://articles.orlandosentinel.com/2013-01-29/business/os-voter-lines-
Chapter 4: Examining the Data 207

North Carolina, where community organizing and a strong sense of civic duty, based on history,

contributed to the fact that black turnout did not significantly decrease, despite the community

facing measures that “surgically” targeted the ways that African Americans vote in his state. 1229

In sum, racial disparities in voter turnout may be, in the totality of circumstances, evidence or

indicia of discrimination,1230 but increasing minority turnout does not necessarily mean that racial

discrimination in voting has disappeared.

Recent Voter Turnout and Registration Patterns

This section details the demographics of the American electorate in the most recent presidential

election. Using the Census Bureau’s Voting and Registration Supplement of the Current

Population Survey (CPS), this section also illustrates how political participation has varied for

different members of the voting eligible population across several presidential elections. The CPS

is performed every two years and involves approximately 60,000 households, which are selected

with the purpose of being representative of the U.S. population.1231 The Census interviews

individuals who are U.S. citizens and over 18 years of age, on matters regarding voting and

registration. Using descriptive and summary Census statistics, this section highlights demographic

characteristics and trends in the composition of the American electorate over the past several

presidential elections.1232

Voter Turnout

The voter turnout rate, measured as persons who voted as a percent of those registered, was

approximately 61.38 percent in the 2016 Presidential Election.

1233 This figure decreased only

slightly from the previous presidential election, but was over 2 percentage points lower than the

2004 and 2008 Presidential Elections (see Figure 13).

 

statewide-20130118_1_long-lines-sentinelanalysis-state-ken-detzner (discussing the research of Ohio State 

University Professor Theodore Allen, whose estimate was “based on the Sentinel’s analysis of voter patterns and 

precinct-closing times in Florida's 25 largest counties”). 1229 Briefing Transcript, supra note 234, at 49 (statement by Bishop Dr. William Barber II). 1230 See, e.g., Gingles, 478 U.S. at 87. 1231 Census Bureau, History of the CPS, supra note 1202. 1232 Id. 1233 Commission staff calculated this figure and the subsequent data referenced in this section using Current 

Population Survey data. For further information on the dataset, see note 1266, infra.
208 An Assessment of Minority Voting Rights Access

Figure 13: Voter Turnout by Presidential Election, 2000- 2016

Source: Figure created by Commission staff using Current Population Survey data

Figure 14 shows U.S. states ranked by the rate of voter turnout in the most recent election in

descending order. According to these data, four states—Colorado, Maine, New Hampshire, and

Wisconsin—and Washington, D.C. had the highest voter turnout rates in the 2016 Presidential

Election. States that have relatively high voter registration and turnout rates often have several

commonalities, such as: competitive elections1234 with large amounts of money spent on

campaigning,1235 higher incomes among the electorate,1236 and populations with high levels of

educational attainment.1237 Many of these states have policies that have simplified the registration

and voting process. In fact, many of the highest-ranking states for registration and turnout—

Colorado, Iowa, Maine, Minnesota, New Hampshire, and Wisconsin—offered same-day voter

registration, allowing citizens to register to vote and to address a registration issue on Election Day

or during the early voting period.1238 In addition, in states that have same-day voter registration,

voter turnout was 7 percentage points higher than in states without this registration option.1239

 

1234 Nonprofit VOTE & U.S. Elections Project, America Goes to the Polls 2016, supra note 1201, at 7. 1235 Andrew Prokop, 40 Charts That Explain Money in Politics, VOX (Jul. 30, 2014), 

https://www.vox.com/2014/7/30/5949581/money-in-politics-charts-explain. 1236 Sean Mcelwee, The Income Gap at the Polls: The Rich Aren’t Just Megadonors. They’re Also Dominating the 

Voting Booth, POLITICO (Jan. 7, 2015), https://www.politico.com/magazine/story/2015/01/income-gap-at-the-polls113997. 1237 Huffington Post, States With The Highest (And Lowest) Voter Turnout, HUFFINGTON POST (Oct. 28, 2016), 

https://www.huffingtonpost.com/entry/states-with-the-highest-and-lowest-voterturnout_us_5813a3c5e4b096e87069653a. 1238 Nonprofit VOTE & U.S. Elections Project, America Goes to the Polls 2016, supra note 1201, at 6. 1239 Id. 
Chapter 4: Examining the Data 209

Minnesota Secretary of State Mark Ritchie said same-day voter registration is a “critical factor”

and the most effective policy in increasing voter turnout.1240 In addition, Colorado, Oregon, and

Washington State are “All Vote by Mail” states1241 and had higher than average voter turnout rates

in the recent presidential election.1242

According to the data in Figure 14, the following states had the five lowest voter turnout rates:

Hawaii, New Mexico, Tennessee, Texas, and West Virginia. Several of these states had voter

registration deadlines that were three to four weeks before Election Day.1243 Arkansas, Hawaii,

Tennessee, Texas, and West Virginia have had the lowest voter turnout rates in the last three

presidential elections.1244 Hawaii has ranked last in voter turnout in the last five presidential

elections, which may be related to the distance of the state from the mainland, along with the

realities that the state receives little attention from presidential candidates, and has only three

electoral votes that usually go to the Democratic Party.1245 Also, California, New York, and Texas

represent 25 percent of the eligible U.S. voting population, but all had lower than average voter

turnout rates.1246

 

1240 Allison Terry, Voter Turnout: The 6 States That Rank Highest, and Why, CHRISTIAN SCI. MONITOR (Nov. 6, 

2012), https://www.csmonitor.com/USA/Elections/2012/1106/Voter-turnout-the-6-states-that-rank-highest-andwhy/Minnesota. 1241 Nonprofit VOTE & U.S. Elections Project, America Goes to the Polls 2016, supra note 1201, at 9 (in “All Vote 

by Mail” states every registered voter receives a ballot in the mail before the election and may return the ballot via 

U.S. postal mail or a local drop box). But see discussion in Chapter 3 regarding difficulties that particular Native 

American communities experience in “All Vote By Mail” states such as Washington and Oregon. 

1242 Id. 1243 Id. at 7 (noting that Hawaii, West Virginia, Texas, and Tennessee all “cut off the ability to register or update a 

registration three to four weeks before Election Day”). 

1244 Id. at 10. 1245 Id. 1246 Id. 
210 An Assessment of Minority Voting Rights Access

Figure 14: Voter Turnout in the 2016 Presidential Election by State

Source: Figure created by Commission staff using Current Population Survey data

47%

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Chapter 4: Examining the Data 211

Figure 15 illustrates trends in voter turnout rate by race and ethnicity from 2000 to 2016. Figure

15 shows that white, black, and multiracial voter turnout ranked the highest amongst racial groups

since 2000. White voter turnout outperformed other racial and ethnic groups across three of the

four presidential elections under study, but in 2012 black voter turnout was 66.64 percent while

white voter turnout was 64.14 percent.

1247 At the same time, voter turnout rates for Asian/Pacific

Islander, Latino, and Native American registrants were almost all under 50 percent across all five

presidential elections under study.1248

Figure 15: Voter Turnout by Race/Ethnicity, 2000- 2016

Source: Figure created by Commission staff using Current Population Survey data

According to the Census data in Figure 15, black voter turnout drastically decreased between 2012

and 2016; it decreased by over 7 percentage points, which is the lowest turnout rate for black

citizens since the 2000 Presidential Election.1249 During the same period, there was a significant

decrease in Native American and multiracial voter turnout rates. The estimated voter turnout rate

for Latino registrants decreased by 0.4 percentage points between 2012 and 2016, while the voter

turnout rate for Asian/Pacific Islanders increased by almost 2 percentage points (see Figure 15).1250

 

1247 Commission staff calculated these figures using Current Population Survey data. See also Jens Manuel Krogstad 

& Mark Hugo Lopez, Black Voter Turnout Fell in 2016, Even as a Record Number of Americans Cast Ballots, PEW 

RESEARCH CENTER (May 12, 2017), http://www.pewresearch.org/fact-tank/2017/05/12/black-voter-turnout-fell-in2016-even-as-a-record-number-of-americans-cast-ballots/. 1248 However, Native American voter turnout in 2012 was estimated at 50.53 percent. 1249 Commission staff calculated this figure using Current Population Survey data. See also William H. Frey, Census 

Shows Pervasive Decline in 2016 Minority Voter Turnout, BROOKINGS INSTITUTION (May 18, 2017), 

https://www.brookings.edu/blog/the-avenue/2017/05/18/census-shows-pervasive-decline-in-2016-minority-voterturnout/ [hereinafter Frey, Census Shows Pervasive Decline]. 1250 Commission staff calculated these figures using 2016 Current Population Survey data. 
212 An Assessment of Minority Voting Rights Access

Despite Latino and Asian/Pacific Islander citizens being the fastest growing groups of eligible

voters, overall turnout for these groups is still low when compared to black and white voter turnout

rates (see Figure 15).1251 In fact, according to a 2015 study published by the Joint Center for

Political and Economic Studies, for over 35 years, Latino and Asian/Pacific Islander voter turnout

has consistently been 10 to 15 percentage points lower than black voter turnout, and 15 to 20

percentage points lower than white voter turnout.1252 The authors of the 2015 study attribute the

gap in voter turnout among these groups as being related to a lack of effective language

accommodations, discrimination at the ballot box, and tepid mobilization on the part of political

parties and candidates.1253 Also, Latino and Asian/Pacific Islander voters as a group are younger

than black and white voters, and generally voter turnout increases with age.1254

Figure 16 demonstrates that from 2000 to 2016, while white voter turnout increased by over 1

percent overall, minority voter turnout decreased overall by more than 3 percentage points.1255

According to a 2017 Brookings study, in 2016, black turnout declined while white turnout rose in

six states (Florida, Michigan, North Carolina, Ohio, Pennsylvania, and Wisconsin); the authors

refer to this as an increase in “white-black turnout differential” in the 2016 Presidential

Election.1256 In addition, the study shows that while in 2012, overall black voter turnout surpassed

white voter turnout, in 2016, overall minority turnout declined in 33 states.1257

 

1251 Khalilah Brown-Dean, Zoltan Hajnal, Christina Rivers, & Ismail White, 50 Years of the Voting Rights Act: The 

State of Race in Politics, JOINT CENTER FOR POLITICAL AND ECONOMICS STUDIES 13 (2015), 

http://jointcenter.org/sites/default/files/VRA%20report%2C%208.5.15%20%28540%20pm%29%28updated%29.pd

f (last accessed July 30, 2018). 1252 Id. at 13-14. 1253 Id. at 14. 1254 Id. 1255 Commission staff calculated these figures using 2016 Current Population Survey data. 1256 Frey, Census Shows Pervasive Decline, supra note 1249. 1257 Id. 
Chapter 4: Examining the Data 213

Figure 16: Voter Turnout Rate by Presidential Election, White (non-Latino)

and Minority Voters

Source: Figure created by Commission staff using Current Population Survey data

Reasons Why Registered Voters Do Not Vote

According to Current Population Survey data, in the last five presidential elections, between 7 to

10 percent of registered voters did not turn out to vote (see Table 9). The Census Bureau asked

registered voters who did not vote in the 2016 election why they chose not to vote, and over 25

percent of respondents said that they did not like available candidates or campaign issues (see

Figure 17).1258 Over 15 percent of registered voters did not participate because they were not

interested or felt that their vote would not make a difference; and approximately 15 percent of

respondents said they were too busy. Lastly, over 10 percent of registered voters said they did not

vote due to a personal or familial illness or disability (see Figure 17).

Table 9: Registered Voters Who Did Not Vote by Presidential Election

2000 2004 2008 2012 2016

Not Registered 30% 28% 29% 29% 30%

Registered, 

Non-Voters

10% 8% 7% 9% 9%

Voted 59% 64% 64% 62% 61%

Total 100% 100% 100% 100% 100%

Source: Table created by Commission staff using Current Population Survey data

 

1258 Commission staff calculated these figures using 2016 Current Population Survey data.

0.0

10.0

20.0

30.0

40.0

50.0

60.0

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80.0

Nov.2000 Nov.2004 Nov.2008 Nov.2012 Nov.2016

White (non-Hispanic) Voters All Minority Voters
214 An Assessment of Minority Voting Rights Access

Figure 17: Which of the following was the MAIN reason you

did not vote (if registered)?1259

Source: Figure created by Commission staff using Current Population Survey data

Moreover, since the 2000 Presidential Election, the percentage of registered voters who said they

did not vote because they disliked the candidates or campaign issues had been generally

decreasing—this figure was only 13 percent during the 2008 and 2012 Presidential Elections and

considerably less during the 2000 and 2004 Presidential Elections—but it increased again in

2016.

1260 During previous elections, registered voters who did not participate highlighted apathy

and scheduling conflicts as the top reasons for not participating.1261

Disaggregation of Racial Disparities in Turnout

In addition to noting the complexities previously discussed in examining turnout by registered

black voters, Commission staff have examined relevant Census data and found large disparities

for other minority groups. The nation has undergone changing demographics with rapid expansion

 

1259 Another analysis of the Current Population Survey data conducted by the Pew Research Center found very 

similar results, but some of the percentages are slightly different, which is due to rounding and different statistical 

weighs. See Lopez and Flores, Dislike of Candidates, supra note 561. 1260 Id. 1261 Id. 
Chapter 4: Examining the Data 215

in numbers of Latino and Asian-American/Pacific Islander citizens, but wide disparities in turnout

have persisted and are likely to persist for these groups.1262

There are only 13 states where overall minority registration rates (including all voters of color) are

higher than white registration rates. These are: Georgia, Illinois, Indiana, Kentucky, Mississippi,

Missouri, New York, North Carolina, Ohio, South Carolina, Tennessee, Texas, and Wisconsin.1263

Section 5 previously covered six of these 13 states. Moreover, data also show a gap between the

turnout of Latino and Asian-American/Pacific Islander voters as compared to white voters.

1264 The

largest racial disparitiesin turnout between Latino and Asian-American/Pacific Islanders are found

in the Plains States and along the Pacific Rim and the Mountain West: Colorado, Hawaii, Idaho,

Iowa, Kansas, Utah, and Wyoming in particular.1265 Unfortunately, Native American turnout data

was not included in this set of localized Census data, so the Commission cannot analyze or report

on the comparative rate of advantage or disadvantage for Native American voters. Data on Native

American turnout are only available on a national level.

 

1262 See, e.g., Rob Griffin, Ruy Teixeira, and John Halpin, Voter Trends in 2016: A Final Examination, CENTER FOR 

AMERICAN PROGRESS (Nov. 1, 2017).

https://www.americanprogress.org/issues/democracy/reports/2017/11/01/441926/voter-trends-in-2016/. 

1263 Bullock, Gaddie, and Wert, Rise, supra note 55, at 177.

1264 Id. at 178. 1265 Id. at 180. 
216 An Assessment of Minority Voting Rights Access

The following chart shows turnout data from 2000-2016 for all major racial groups.

Table 10: Voting by Race/Ethnicity and Year 

Source: Census Bureau’s Voting and Registration Supplement of the Current Population Survey1266

The above data show that Asian-American/Pacific Islander, Latino, and Native American voters

are experiencing wide turnout gaps. On a national level, the currently low turnout rates among

these minority citizen groups are as low as the less than 50 percent turnout of eligible black voters

that formed the basis for the initial preclearance formula in Section 5 at the time of the 1964

Presidential Election. As a reminder, Congress took into account the following in enacting the

1965 VRA preclearance formula: the 1965 VRA applied Section 5 preclearance rules

in any State or in any politicalsubdivision of a State which (1) the Attorney General

determines maintained on November 1, 1964, any test or device, and with respect

 

1266 The data were compiled by Commission staff from the U.S. Census Bureau Voting and Registration 

Supplement’s post-election surveys of the Voting Eligible Population (who are citizens of voting age). Commission 

staff note that voting estimates from the Current Population Survey and other sample surveys have historically 

differed from those based on administrative data, such as the official results reported by each state and disseminated 

collectively by the Clerk of U.S. House of Representatives and the Federal Election Commission. In general, voting 

rates from the sample surveys such as the Current Population Survey are higher than official results (such that the 

low turnout rates reported here may be over-estimates). Potential explanations for this difference include item 

nonresponse, vote misreporting, problems with memory or knowledge of others’ voting behavior, and 

methodological issues related to question wording and survey administration. Despite these issues, the Census 

Bureau’s November (post-election survey) supplement to the Current Population Survey remains the most 

comprehensive data source available for examining the social and demographic composition of the electorate in 

federal elections, particularly when examining broad historical trends for subpopulations. See U.S. Census Bureau, 

Voting in America: A Look at the 2016 Presidential Election, 2017, 

https://www.census.gov/newsroom/blogs/random-samplings/2017/05/voting_in_america.html [hereinafter Census 

Bureau, Voting in America].

Year:

Race/Ethnicity 2000 2004 2008 2012 2016

White 61.82% 67.2% 66.11% 64.14% 65.3%

Black 56.89% 60.35% 65.20% 66.64% 59.57%

Latino 45.10% 47.16% 49.88% 47.96% 47.57%

Native American 46.72% 48.68% 48.79% 50.53% 43.59%

Asian American/ 

Pacific Islander 

43.25% 44.63% 47.2% 47.07% 48.81%
Chapter 4: Examining the Data 217

to which (2) the Director of the Census determines that less than 50 per centum of

the persons of voting age residing therein were registered on November 1, 1964, or

that less than 50 per centum of such persons voted in the presidential election of

November 1964.

1267

This formula was updated in subsequent VRA reauthorizations, based on turnout data from the

1968 and 1972 presidential elections.1268

Using these metrics, the above data show that Asian-American/Pacific Islander, Latino, and Native

American turnout rates were under 50 percent of eligible voters, on a national level. According to

past VRA formulas, these turnout rates are consistent with what Congress has considered to

indicate discrimination in voting.1269 Also, data from 1980 to the present show that these turnout

gaps may be persistent. The following graph is reproduced from the U.S. Census.1270

Figure 18: Reported Voting Rates by Race, 1980- 2016

Source: Current Population Voting and Registration Supplemental: 1980- 2016

While turnout is not the only indicator of ongoing discrimination in voting, considering the

changing demographics of the nation, ongoing gaps in minority turnout may be one of various

factors or indicators to evaluate current conditions.

 

1267 52 U.S.C. § 10304(a). 1268 Id. See also Discussion and Sources cited in Chapter 1, note 151, supra. 1269 See, e.g., Katzenbach, 383 U.S. at 330, 339, abrogated by Shelby Cty., 570 U.S. 529. 1270 Census Bureau, Voting in America, supra note 1266.
218 An Assessment of Minority Voting Rights Access

Voting Rights Act Litigation Trends Pre- and Post-Shelby County

Before examining whether litigation trends show current conditions of discrimination in voting,

and the key question of whether the litigation trends show more or less VRA litigation in formerly

covered jurisdictions, some premises underlying such an evaluation should be examined. Although

the Shelby County decision indicates that current conditions should be the basis of any future

preclearance formula, and that there should not be any discrimination among the states,1271 the

Court did not factually examine the premise that formerly covered jurisdictions were not the

location of more incidents of voting rights violations. Historian and voting rights expert J. Morgan

Kousser has criticized this part of the Shelby County decision as follows: “Neither the Chief Justice

nor any scholars or civil rights proponents or opponents have systematically examined the

evidence on the entire pattern of proven voting rights violations over time and space.”1272

Trends in Incidents of Discrimination

In 2015, Kousser published a study of over 4,100 incidents of discrimination in voting in the United

States from 1957 to 2014, using a consistent methodology across all states, and found that nearly

83 percent of voting rights violations occurred in formerly covered jurisdictions.1273 His study calls

into question whether the Supreme Court’s reasoning that preclearance was no longer justified in

formerly covered jurisdictions as compared to other states is supported by any data, even in the

relatively recent period of 1982 to 2006.1274 Kousser’s 4,173 incidents came from a broader dataset

than just the VRA cases that the Commission examines below.1275

The Commission also notes that litigation alone is not a complete measure of the problem of

discrimination in voting.1276 For example, in the pre-Shelby County era, in the process of reviewing

submissions of voting changes, DOJ requests for further information that led to the prevention or

modification of a discriminatory voting change (which are part of Kousser’s dataset), may be

 

1271 See Shelby Cty., 570 U.S. at 557. 1272 Kousser, Facts of Voting Rights, supra note 249. 1273 Id. at 17. 1274 Id. 1275 Id. at 3. The methodology for collection of Kousser’s data set is as follows: 

Drawn largely from lists of cases and other actions compiled by civil rights organizations, individual 

attorneys, and the DOJ, the database has been supplemented by ferreting out details and following case 

citations from published cases, from PACER, and from newspaper articles. The events include any 

successful or unsuccessful case, published or not, decided or settled; Section 5 objections and “more 

information requests” by the DOJ; and election law changes that manifestly took place as a result of 

the threat or reality of legal challenges . . . it is far larger than any of the single sources that were 

presented to Congress during the process of renewing the VRA in 2006 and that were scrutinized in the 

district and appeals court opinions in Shelby County. For example, Prof. Ellen Katz’s database of 

Section 2 cases, discussed extensively during the 2006 congressional Briefings and included in my 

database with Katz’s kind permission, contains 324 cases. The total number of cases and other events 

in which the minority side was successful contained in my database is currently 4173. Id.

1276 See, e.g., Levitt, Written Testimony, supra note 304, at 2.
Chapter 4: Examining the Data 219

valuable indicia that discrimination was prevented, or that preclearance was effective.1277 During

the 2006 VRA Reauthorization, Congress received empirical studies about DOJ’s requests for

more information and their substantial effect on covered jurisdictions’ behavior.1278 Another

example of a meaningful nonlitigation event is the removal of a barrier to access for minority

voters, defined as “election law changes that manifestly took place as a result of the threat or reality

of legal challenges.”1279 Kousser argues that these types of incidents, as well as successful

litigation under relevant U.S. and state constitutional and statutory protections, are also indicia of

discrimination in voting.1280

Kousser mapped his database of incidents of discrimination in all 48 contiguous states, and showed

a correlation of higher levels of discrimination in voting in the formerly covered jurisdictions. His

map reproduced below codes all places with no incidents of discrimination in blue, then illustrates

higher levels of incidents in the following three-dimensional figure with color coding, according

to the legend below. There were also ongoing incidents in Alaska, which unfortunately, could not

be included in the map below.1281 But Commission staff reviewed Kousser’s dataset and

independently confirmed that during this time period, among the VRA violations, none were

reported in Hawaii, while three Section 5 cases (in 1995, 2003, and 2009) and one case of VRA

language access violations (in 2014) occurred in Alaska.

1282

 

1277 See H. R. REP. NO. 109-478, at 40-41.4 (2006) (in addition to 700 DOJ objections under Section 5, over 800 

proposed voting changes were withdrawn or amended after the DOJ requested more information from the submitting 

jurisdiction).

1278 See Voting Rights Act: Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H. 

Comm. on the Judiciary, 109th Cong. 11 (2006), transcript available at 

http://commdocs.house.gov/committees/judiciary/hju26411.000/hju26411_0f.htm (noting the submission of 

materials like Luis Ricardo Fraga & Maria Lizet Ocampo, The Deterrent Effect of Section 5 of the Voting Rights 

Act: The Role of More Information Requests, updated version available at 

https://www.law.berkeley.edu/files/ch_3_fraga_ocampo_3-9-07.pdf ); Kousser, Facts of Voting Rights, supra note 

249, at 3, 20.

1279 Kousser, Facts of Voting Rights, supra note 249, at 3. 1280 Id. at 6 (for example, Kousser includes enforcement actions brought under the California Voting Rights Act, 

which is state legislation prohibiting discrimination in voting, with different standards for vote dilution cases than 

the VRA).

1281 Id. at n.10. Kousser explains that: “Alaska is so large that including it in anything like its proportional size 

reduces the detail of the lower-48 states far too much for clarity.” 1282 The Section 5 cases were: Native Vill. of Barrow v. City of Barrow, 2BA-95-117 (D. Alaska 1995); Luper v. 

Municipality of Anchorage, 268 F. Supp. 2d 1110 (D. Alaska 2003); Nick v. Bethel, Alaska, 2010 WL 4225563 (D. 

Alaska 2010); and the VRA language access case was Toyukak v. Treadwell, 3-13-CV-00137-SLG (D. Alaska 2014) 

(ongoing violations of Sections 203 and 208). For more information about language access, see Chapter 3, Language 

Access Issues, supra notes 1114-72.
220 An Assessment of Minority Voting Rights Access

Figure 19: Voting Rights Events by County, 1957-20141283

Compared to the map of jurisdictions that were covered for preclearance prior to the Shelby County

decision (see Chapter 2, Figure 2), the pattern of much higher levels of voting rights incidents in

the formerly covered jurisdictions is apparent.1284

Moreover, as Figure 20 illustrates, the data showed that even in the more recent period of 1982 to

2005, voting rights incidents were still concentrated in formerly covered jurisdictions.1285

 

1283 Kousser, Facts of Voting Rights, supra note 249, at 6. 1284 Id. 1285 Id. at 8. 
Chapter 4: Examining the Data 221

Figure 20: Voting Rights Incidents Still Concentrated in the South

and Southwest, 1982-20051286

Trends in Section 2 and Section 5 Voting Rights Act Enforcement Actions

The Commission now turns to analysis of the more limited dataset of VRA enforcement actions

under Sections 2 and 5, starting with a key point from Kousser’s research documenting that trends

in Section 2 litigation correlate with Supreme Court decisions interpreting the law.1287 This is

another factor showing that using only litigation successes as a metric does not demonstrate the

entirety of current conditions. For example, Supreme Court precedents that narrowed the

interpretation of the statutory protections of Section 2 in 1980,1288 1993,1289 and 19951290 resulted

in a negative quantitative impact in the number of Section 2 cases won.1291

Similarly, Section 2 cases became easier to win after the 1982 VRA amendments clarifying that

intent is not required to prove a Section 2 violation, particularly after the subsequent Supreme

Court decision in Thornburg v. Gingles clarifying the standards for showing a Section 2 violation

based on a totality of circumstances and factors that do not include intent.1292 After the 1982 VRA

amendments, Section 2 provided that:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure 

shall be imposed or applied by any State or political subdivision in a manner which results 

 

1286 Id. at 8. 1287 Id. at 18-20. 1288 Id. at 11 (citing Mobile, 446 U.S. 55). 1289 Id. (citing Shaw, 509 U.S. 630). 1290 Id. (citing Miller v. Johnson, 515 U.S. 900 (1995)). 1291 See infra Figure 21. 1292 Kousser, Facts of Voting Rights, supra note 249, at 18-20 (citing Gingles, 478 U.S. 30).
222 An Assessment of Minority Voting Rights Access

in a denial or abridgement of the right of any citizen of the United States to vote on account 

of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) [the 

language minority provisions] of this title, as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it 

is shown that the political processes leading to nomination or election in the State 

or political subdivision are not equally open to participation by members of a class of 

citizens protected by subsection (a) in that its members have less opportunity than other 

members of the electorate to participate in the political process and to elect representatives 

of their choice. The extent to which members of a protected class have been elected to 

office in the State or political subdivision is one circumstance which may be 

considered: Provided, That nothing in this section establishes a right to have members of a 

protected class elected in numbers equal to their proportion in the population.1293

The graph reproduced below shows that the level of successful1294 Section 2 cases tends to ebb

and flow depending on how the Supreme Court interprets the statute.

Figure 21: Successful Section 2 Cases in Covered and Non-Covered

Jurisdictions, 1957-20141295

 

1293 52 U.S.C. § 10301. 1294 Professor Kousser and the Commission use the same definition of successful throughout this report, which is 

based on the VRA Reauthorization’s metric and is also set forth in the Written Testimony of Dale Ho, at his note 42, 

borrowing from Professor Ellen Katz’s definition of a “successful” Section 2 case, which was cited by Congress 

during the 2006 Reauthorization. See further Discussion and Sources cited at note 1306-7, infra. By using the same 

metric, which Commission staff have independently repeated in this chapter of the report, trends will be shown. 1295 Kousser, Facts of Voting Rights, supra note 249, at 17.
Chapter 4: Examining the Data 223

The above compilation of successful Section 2 cases also shows that the great majority were

brought in formerly covered jurisdictions. In the years Kousser reviewed for the above graph, five

out of six (82.7 percent) successful Section 2 cases were won in formerly covered jurisdictions.1296

As discussed in Chapter 1, the VRA (including Section 5) was reauthorized a number of times.

The most recent reauthorization was in 2006. Kousser’s compilation of Section 2 cases

summarized above shows that although there were fewer Section 2 cases before the 2006

reauthorization, they evidenced ongoing discrimination in voting and they were highly

concentrated in formerly covered jurisdictions.1297 Ongoing discrimination in voting was also

evidenced by objections under Section 5 that stopped discriminatory voting changes, requests for

more information that resulted in the originally proposed change being altered in order to pass

preclearance, and litigation under Section 5 that stopped discriminatory voting changes.1298 Trends

in these successful Section 5 enforcement actions are summarized in the graph reproduced below.

Figure 22: Section 5 Objections and Cases, 1957-20141299

This graph shows successful Section 5 enforcement preceding the 2006 VRA Reauthorization. The

data also indicate that Section 5 enforcement was influenced by the Supreme Court’s decisions in

1969,1300 expanding its interpretation, and by subsequent Supreme Court decisions that limited its

scope in 19761301 and 1993.1302 The data also show that although there was a lower rate of

 

1296 Id. 1297 See supra note 1286, Figure 20. 1298 Kousser, Facts of Voting Rights, supra note 249, at 17. 1299 Id. 1300 Id. at 11-12 (citing Allen, 393 U.S. 544). 1301 Id. at 12 (citing Beer, 425 U.S. 130). 1302 Id. at 11 (citing Shaw, 509 U.S. 630).
224 An Assessment of Minority Voting Rights Access

objections over time, objections continued into recent years, and there was a slight uptick just prior

to the Shelby County decision.1303

After Shelby County, the ground for Section 2 casesshifted dramatically as Section 5 was no longer

operational. As discussed in Chapter 2 of this report, jurisdictions no longer had to provide notice

of voting changes, nor racial impact data, and voting changes that were previously frozen by the

preclearance process could be put into effect in elections immediately.1304 Section 2 is one of the

remaining provisions of the VRA that the Shelby County decision did not rule upon, with the Court

stating: “Our decision in no way affects the permanent, nationwide ban on racial discrimination in

voting found in § 2.”1305

Successful Section 2 Litigation Between the 2006 Voting Rights Act Reauthorization 

and Shelby County Decision

The Commission’s research shows that as compared to the prior period, there were relatively fewer

successful Section 2 cases since the 2006 VRA Reauthorization and prior to the Shelby County

decision. The methodology identifying these cases is based on a Westlaw legal database search,

and the definition of successful is also consistent with that used in the 2006 VRA Reauthorization,

as follows:

Suits coded as a successful plaintiff outcome include both those lawsuits where a

court determined, or the parties stipulated, that Section 2 was violated, and a

category of lawsuits where the only published opinion indirectly documented

plaintiff success, including decisions where a court granted a preliminary

injunction, considered a remedy or settlement, or decided whether to grant

attorneys’ fees after a prior unpublished determination of a Section 2 violation. 1306

 

1303 Id. at 11-12. 1304 See Chapter 2, The Impact of Shelby County on Federal VRA Enforcement, at notes 301-310, supra. 1305 Shelby Cty., 570 U.S. at 557. 1306 See Ho, Written Testimony, supra note 42: 

I borrow Professor Ellen Katz’s definition of a “successful” Section 2 case. See Ellen Katz, 

Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act 

Since 1982, 39 U. Mich. J. L. Reform 643, 653-54 n.35 (2006) (“Suits coded as a successful plaintiff 

outcome include both those lawsuits where a court determined, or the parties stipulated, that Section 2 

was violated, and a category of lawsuits where the only published opinion indirectly documented 

plaintiff success,” including decisions where a court “granted a preliminary injunction, considered a 

remedy or settlement, or decided whether to grant attorneys' fees after a prior unpublished 

determination of a Section 2 violation.”). 

Professor Katz’s study was cited by Congress during the 2006 Voting Rights Act reauthorization and 

in Justice Ginsberg’s dissent in Shelby County. See Shelby County, 133 S.Ct. at 2642 (Ginsberg, J., 

dissenting) (citing To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing before 

the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., 
Chapter 4: Examining the Data 225

The Commission also used this definition in identifying the successful Section 2 cases identified

below, and this same definition is used consistently throughout this report.1307 Analysis of the fact

patterns in this report should also take into account that during the time after the 2006 VRA

Reauthorization and prior to the Shelby County decision, Section 5 was also in operation.

Therefore, in addition to the above successful Section 2 cases showing VRA violations, there were

a number of objections along with successful litigation under Section 5. (See Figure 22.)

Moreover, numerous panelists testified and provided data showing that Section 2 litigation is more

difficult, expensive, and time-consuming than Section 5 procedures.1308 During the 2006 VRA

Reauthorization, Congress also found Section 2 litigation to be more difficult, expensive, and timeconsuming than Section 5 procedures.1309 The VRA’s statutory language also shows that Section

5 is proactive and the burden of proof is on the jurisdiction, and in contrast, Section 2 requires

mounting an affirmative lawsuit by either the DOJ or individual voters.1310

Due to the statutory language and the elements that must be proven in federal court to establish a

Section 2 violation,1311 the cases below indicate ongoing discrimination in voting in the period just

prior to Shelby County.

 

pp. 964-1124 (2005)). The categorization of settled cases as “successful” may result in some overinclusivity.

The Commission agrees with Ho in this caveat, while noting that by using the same metric over time, which 

Commission staff has independently repeated in this chapter of the report, trends will be shown.

1307 Kousser used the same definition of “successful” VRA cases, but he did not rely only on the Westlaw legal 

database, and therefore he has identified more cases than documented below. Kousser, Facts of Voting Rights, supra 

note 249, at 3. Commission staff chose the Westlaw method in order to be consistent in comparing the number of 

successful cases over time (as unreported cases are more difficult to find in the type of consistent manner that 

Kousser used over many years of research, through asking persons in the field to send him unreported decisions). 

Commission staff also consistently identified the decision date as the date of a case, as this information is more 

reliably available than the date the lawsuit was filed.

1308 Briefing Transcript, supra note 234, at 211 (statement by Dale Ho) (“Successful Section 2 litigation has been a 

ray of light in states like Texas and North Carolina but these cases put in stark relief which has been lost with the 

demise in the preclearance system. Litigation has been costly and has taken years, and in the meantime, despite 

motions for preliminary injunctions, in these cases, several of which were actually granted, multiple elections were 

held in these states under rules that courts ultimately determined were intentionally discriminatory and thus 

unconstitutional. So simply put, since the Shelby County decision we have a record of constitutional violations 

necessitating a congressional remedy.”); see also NAACP LDF, The Cost (in Time, Money, and Burden) of Section 2 

Voting Rights Act Litigation, http://www.naacpldf.org/files/case_issue/Section%202%20costs%2010.25.17.pdf

(discussing data regarding time and costs).

1309 Voting Rights Act: Evidence of Continued Need: Hearing Before the H. Subcomm. on the Constitution of the H. 

Comm. on the Judiciary, 109th Cong. 97 (2006). An illegal scheme might be in place for several election cycles 

before a § 2 plaintiff can gather sufficient evidence to challenge it. Voting Rights Act: Section 5 of the Act—History, 

Scope, and Purpose: Hearing before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th 

Cong. 92 (2006). Litigation also includes a “heavy financial burden on minority voters.” Id. at 84. 1310 Compare 52 U.S.C. § 10304 (Section 5) with 52 U.S.C. § 10301 (Section 2). 1311 52 U.S.C. § 10301.
226 An Assessment of Minority Voting Rights Access

Table 11: Successful Section 2 Cases Decided Post-2006 Reauthorization and Prior to 

Shelby County (July 27, 2006-June 25, 2013)

Section 2 Case Citation (year) State

Type 

of claim

Community 

impacted

United States v. Osceola 

Cty., Fla.

475 F. Supp. 2d 1220 (M.D. 

Fla. 2006) FL Dilution Latino 

Bone Shirt v. Hazeltine

461 F.3d 1011 (8th Cir. 

2006) SD Dilution Native American

United States v. City of 

Euclid

580 F. Supp. 2d 584 (N.D. 

Ohio 2008) OH Dilution African American

Jamison v. Tupelo, 

Mississippi

471 F. Supp. 2d 706 (N.D. 

Miss. 2007) MS Dilution African American

United States v. Brown

561 F.3d 420 (5th Cir. 

2009) MS

Denial 

(episodic) White voters

Spirit Lake Tribe v. 

Benson Cty.

2010 WL 4226614, No. 

2:10-CV-095 (D.N.D. 

2010) (preliminary 

injunction) ND

Denial (access 

to polls) Native American

Large v. Fremont Cty,, 

Wyoming

709 F. Supp. 2d 1176 (D. 

Wyo. 2010) WY Dilution Native American

U.S. v. Vill. of Port 

Chester

704 F. Supp. 2d 411 

(S.D.N.Y. 2010) NY Dilution Latino

Fabela v. City of 

Farmers Branch

2012 WL 3135545, No. 

3:10-CV-1425-D (N.D. 

Tex. 2012) TX Dilution Latino

Successful Section 2 Litigation After the Shelby County Decision

The next set of data research is found in Table 12 below, and illustrates some of the key facts about

Section 2 litigation during the 5 years since the Shelby County decision of June 25, 2013, as

compared with the 5 years prior.1312 Commission staff analyzed these two 5-year time periods, in

order to quantitatively compare the data within equal time periods.1313 The research included

details about the date of each successful Section 2 decision in the post-Shelby County era, the state

where the Section 2 violation occurred, the date the case was filed, whether a preliminary

injunction or other interim remedy was issued to halt implementation during elections, the type of

Section 2 claim, and the community impacted. These details also provide a snapshot of the

 

1312 Shelby Cty., 570 U.S. 529. 1313 The data are generated from a Westlaw legal research database search for successful Section 2 cases, and the 

analysis of these cases by Commission staff. The definition of successful remains consistent with that used in the 

2006 VRA Reauthorization, which was also used by Kousser in his data summarized above. See supra notes 1306-

1307 for definition of “Successful” Cases and Discussion of Methodologies.
Chapter 4: Examining the Data 227

functionality of and any limits to the effectiveness of Section 2 in preventing racial discrimination

in voting in the post-Shelby County era. Staff research found that:

x Twenty-three successful Section 2 cases have been decided1314 since the Shelby County

decision.1315

o In comparison, there were only five successful Section 2 cases in the five years 

preceding the Shelby County decision.1316

o In the five years since the Shelby County decision (as compared to the five years 

before the decision), the number of successful Section 2 cases has more than 

quadrupled.

x Preliminary injunctions or other interim remedies were only issued in 9 of the 23 successful 

post-Shelby County Section 2 cases filed, or fewer than 39.1 percent (9/23) of the 

successful cases. Preliminary injunctions were sought by voting rights advocates in various 

cases, but in most cases, they were denied or overturned. 

o Two of the nine preliminary injunctions were stayed by the Supreme Court, based on 

the reasoning that minority voters and their advocates asked for changes too close to 

Election Day. As discussed above, this is a relatively new precedent that has emerged 

since preclearance has been removed.1317

 

1314 This analysis considers the litigation regarding voter ID in Texas to be two separate cases, because it has 

involved two separate voter ID laws (SB 14 and the amended SB 5) with two separate decision points—whereas the 

claims regarding SB 14 were successful, the claims regarding the amended SB 5 are currently not successful. There 

are four main decisions regarding voter ID in Texas: (1) Texas, 888 F. Supp. 2d at 144-45 (D.D.C. 2012), vacated 

and remanded, Texas, 570 U.S. 928 (remanded on June 27, 2013, based on Shelby County, after which SB 14 was 

immediately put back into effect); (2) Veasey, 71 F. Supp. 3d 627 (SB 14 was preliminarily enjoined on basis of 

likelihood of success on the merits for intentional discrimination and with regard to Section 2’s prohibition of 

discriminatory effects), but this was stayed upon appeal (see Veasey, 769 F.3d 890, 135 S. Ct. 9 (denying motion to 

vacate stay); (3) Veasey, 830 F.3d 216 (finding SB 14 intentionally racially discriminatory, remanding to district

court on equal protection claim and on remedies); in the interim, Texas amended SB 14 and introduced SB 5, which 

provided for new exceptions to the strict voter ID bill, including a “reasonable impediment procedure,” as well as 

expanding the list of acceptable identifications. SB 5 was also found to be intentionally discriminatory in (4) Veasey, 

248 F. Supp. 3d 833 (holding that SB 5 must be invalidated as tainted fruit of intentional discrimination), but after 

the Fifth Circuit (en banc) affirmed the relevant decision and remanded the remedies issue, on remand, on April 27, 

2018, a three-judge panel of the Fifth Circuit concurred to strike down the en banc ruling of the full Fifth Circuit, 

based on the theory that Texas’ appeal was not moot and that SB 5 should be independently evaluated. Veasey, 888 

F.3d 792, 2018 WL 1995517 (5th Cir. 2018). In this latest ruling, in the 2-1 decision, of the three judges, one ruled 

that the lower court’s opinion was based on inequitable remedies because SB 5 was not “tainted” by prior 

discrimination and that the state’s appeal was moot, id. at 801-02, the second agreed with overturning the permanent 

injunction because it was moot as the legislature should be allowed to solve problems, id. at 804-05, and the third 

judge that it was still “tainted.” Id. at 823. 1315 See Table 12, infra. 1316 These are: Large, 709 F. Supp. 2d 1176 (at-large elections diluting voting rights of Native American); Vill. of 

Port Chester, 704 F. Supp. 2d 411 (method of election diluted Latino voting rights); Brown, 561 F.3d 420 (vote 

denial case on behalf of white voters, based on episodic practices); Fabela v. City of Farmers Branch, 2012 WL 

3135545, No. 3:10-CV-1425-D (N.D. Tex. 2012); and Spirit Lake Tribe, 2010 WL 4226614 (preliminary injunction 

against closing polling places on Spirit Lake Tribe Reservation).

1317 See supra notes 347-51.
228 An Assessment of Minority Voting Rights Access

o Moreover, the great majority of elections that occurred in the interim were conducted 

with voting measures that were later found to be racially discriminatory. 

o In contrast, for those cases that occurred in formerly covered jurisdictions, all of these 

cases involving voting changes would have been frozen during the preclearance 

process—unless and until the jurisdiction could prove that any changes they sought to 

implement, such as a new redistricting plan or voter ID law, were not retrogressive to 

minority voters.1318

x Twelve of the 23 successful post-Shelby County Section 2 cases occurred in formerly 

covered jurisdictions. 

o In the years just prior to Shelby County (2006-2013), only 9 of 50 states (18 percent) 

were previously subject to preclearance under Section 5.

o In the successful Section 2 cases brought in the five years prior to Shelby County

(when Section 5 was in place) two out of five (40 percent) successful cases were 

brought in formerly covered jurisdictions. 

o In comparison, in the five years after Shelby County, 12 out of 23 (52.2 percent) 

occurred in formerly covered jurisdictions. These data show that the rate of 

concentration in formerly covered jurisdictions is increasing.

x Only one of the post-Shelby County cases was brought on behalf of Asian 

Americans/Pacific Islanders. Sixteen included claims on behalf of black voters, 11 included 

claims on behalf of Latino Americans, and three were brought on behalf of Native 

Americans.

x A judicial preclearance remedy was only granted in 2 of the 23 cases below.1319 Judicial 

preclearance was not granted even in some cases involving intentional discrimination.1320

x Fourteen of the 23 successful cases (60.9 percent) involved or included vote dilution 

claims, and nine (39.1 percent) involved or included vote denial or abridgement. 

o In the five years prior to Shelby County, three of the five of successful Section 2 cases 

(60.0 percent) involved vote dilution, and two out of the five (40.0 percent) involved 

vote denial.

The following chart summarizes the successful cases Commission staff identified and researched,

with additional information about whether or not they occurred in jurisdictions that were covered

by preclearance prior to the Shelby County decision, whether or not a preliminary injunction to

halt implementation during the course of the litigation was granted, the type of Section 2 claim,

and the community impacted.1321

 

1318 See 52 U.S.C. § 10304. 1319 See City of Evergreen, 2014 WL 12607819; Patino, 230 F. Supp. 3d 667. 1320 See, e.g., McCrory, 831 F.3d 204. 1321 The data are generated from Westlaw legal research database search for successful Section 2 cases, and the 

analysis of these cases by Commission staff. The definition of successful remains consistent with other datasets in 

this report. See supra note 1306, for definition of “successful” cases, and notes 1306, 1321-22 for discussion of 

Commission staff research methodologies.
Chapter 4: Examining the Data 229

Table 12: Successful Post-Shelby County Section 2 Cases (per Westlaw)1322

Case

Formerly 

covered?1323

Preliminary Injunction 

(PI)? 

(as per WL)

Type of Section 2 claim & 

community impacted

1. Consent Order, Allen 

v. City of Evergreen, 

Ala., 2014 WL 

12607819, No. 13-0107 

(S.D. Ala., Jan. 1, 2014).

YES (AL) No—but case filed before 

Shelby County, and under 

Section 5 election changes 

were enjoined unless and 

until precleared. 

Dilution and denial of black voters’ 

rights: City redistricting plan and 

changed system of voter eligibility 

challenged under Sections 2 and 5; 

parties agreed to judicial preclearance 

and federal observers under Section 3.

2. Luna v. Kern Cty., 

291 F. Supp. 3d 1088 

(E.D. Cal. 2018).

NO (Kern 

Cty. CA)

No—plaintiff’s motion for 

partial summary judgement 

denied.1324

Dilution of Latino voting power 

through county redistricting plan.

3. Ga. NAACP v. 

Fayette Cty., 118 F.

Supp. 3d 1338 (N.D. 

Ga., Aug. 3, 2015).

YES (GA) Yes, on remand, covering 

special election, August 10, 

2015-October 13, 2015.

Dilution of black voters’ rights:

At-large county and school board 

districts.

4. Wright v. Sumter Cty. 

Bd. of Elections & 

Registration, 301 F. 

Supp. 3d 1297 (M.D. 

Ga. 2018).

YES (GA) No—the court allows elected 

officials the opportunity to 

remedy the districting plan.

Dilution of black voting power: Atlarge districts of Sumter County Board 

of Education diluted AfricanAmerican voting strength.

5. Terrebonne Parish 

La. NAACP v. Jindal, 

274 F. Supp. 3d 395

(M.D. La. Aug. 17, 

2017).

YES (LA) No. Dilution of black voters’ rights:

At-large elections for judges.

6. Mich. APRI v. 

Johnson, 833 F.3d 656 

(6th Cir. Aug. 17, 2016).

YES (MI) Yes, granted July 21, 2016. Denial of black voters’ rights:

Elimination of straight-ticket voting.

7. Missouri NAACP v. 

Ferguson-Florrisant 

S.D., 201 F. Supp. 3d 

1006 (E.D. Mo., Aug. 

22, 2016).

No (MO) No. Dilution of black voters’ rights:

Method of school board election.

8. Sanchez v. Cegavske, 

214 F. Supp. 3d 961 (D. 

Nev., Oct. 7, 2016).

No (NV) Yes, granted in part 10/7/16 

as to additional in-person 

early voting and Election 

Day polling places in two 

counties.

Denial of Native American voting 

rights: PI issued regarding polling 

places (PI denied regarding voter 

registration sites).

 

1322 The definition of a successful Section 2 case falling within the “post-Shelby County” time period means that the 

published decision falls within this time period (event noted on Westlaw after June 25, 2013). This is the same 

definition as used in the equivalent pre-Shelby County time period (the five years prior to Shelby County), so that 

comparisons are between equal criteria. 1323 For a map of formerly covered states and subdivisions, see Chapter 2, Figure 2. Also note that statewide changes 

impacting the formerly covered townships and counties had to be precleared. 

1324 291 F. Supp. 3d 1088, 1097 (referring to the decision at litigation Doc. No. 97).
230 An Assessment of Minority Voting Rights Access

Case

Formerly 

covered?1323

Preliminary Injunction 

(PI)? 

(as per WL)

Type of Section 2 claim & 

community impacted

9. Favors v. Cuomo, 

2012 WL 928216 *9 

(E.D.N.Y., Mar. 12, 

2012), 39 F. Supp. 3d 

276 (E.D.N.Y., Aug. 14, 

2014).

YES (NY) No. Dilution of voting rights of blacks, 

Asian Americans/Pacific Islanders,

and Latinos: NY Congressional 

redistricting plan was precleared but 

then litigated under Section 2, after 

which the state adopted a new plan to 

come into compliance.

10. Molina v. Cty. of 

Orange, NY, 2013 WL 

3009716, No. 13-CIV3018 (S.D.N.Y., June 14, 

2013).

No 

(Orange Cty.

NY)

Yes, 5/6/13—6/14/13. Dilution of black and Latino voting 

rights: County redistricting case, 

Special Master’s plan adopted in time 

for Nov. 2013 county elections.

11. Pope v. Cty. of 

Albany, NY, 94 F. Supp.

3d 302 (N.D.N.Y., Mar. 

24, 2015).

No (Albany 

NY)

No, PI denied, 2011 WL 

3651114; 

aff’d. 687 F.3d 565 (2nd. Cir. 

2012).

Dilution of black and Latino voters’ 

rights: County redistricting case.

12. NC NAACP v. 

McCrory, 831 F.3d 204 

(4th Cir., July 29, 2016).

YES (NC) Yes, partially, but stayed by 

Supreme Court1325—a PI was 

issued only for one week 

(and only same day 

registration and out-ofprecinct voting (and not for 

voter ID or cuts to early 

voting, pre-registration)),

October 1, 2014-October 8, 

2014.

Denial of black voters’ rights: Photo 

ID law and cuts to same-day 

registration, early voting, 

out-of-precinct voting, and 

pre-registration.

13. Brakebill v. Jaeger, 

2016 WL 7118548, 

1:16-CV-008 (D.N.D., 

Aug. 1, 2016).

No (ND) Yes, granted August 1, 2016, 

2nd PI regarding amended 

voter ID law granted April 6, 

2018, 2018 WL 1612190.

Denial of Native American and 

others’ voting rights: PI issued 

regarding fail-safe, affidavit 

provisions of voter ID law; after 

amendments, a second PI was issued.

14. Ohio NAACP v. 

Husted, 768 F.3d 524 

(6th Cir., Sept. 24, 

2014).

No (OH) Yes, but stayed by Supreme 

Court, 135 S. Ct. 42 (2014), 

so PI was only from 9/4/14-

9/29/14.

Denial of black voting rights: Cuts to 

early in-person voting.

15. Bear v. Cty. of 

Jackson, SD, 2017 WL 

52575, No. 5:14-CV05059 (D.S.D., Jan. 4, 

2017).

No (Jackson 

Cty. SD)

No—PI was requested, then 

parties resolved PI issues in 

settlement conference, 2015 

WL 1969760.

Denial of Native American voting 

rights: Failure to establish satellite 

office for voter registration and inperson absentee voting on Indian 

Reservation.

16. Benavidez v. Irving 

S.D., TX, 2014 WL 

4055366, No. 3:13-CV0087 (N.D. Tex., Aug. 

15, 2014).

YES (TX) No. Dilution of Latino voting rights: 

School district system with no 

effective Latino citizen district while 

district as a whole had rapidly 

growing Latino majority.

 

1325 A preliminary injunction was granted by the Fourth Circuit in League of Women Voters of N. Carolina, 769 F.3d 

224, but stayed by the Supreme Court, North Carolina, 135 S. Ct. 6.
Chapter 4: Examining the Data 231

Case

Formerly 

covered?1323

Preliminary Injunction 

(PI)? 

(as per WL)

Type of Section 2 claim & 

community impacted

17. Patino v. City of 

Pasadena, TX, 230 F.

Supp. 3d 667 (S.D. Tex., 

Jan. 6, 2017).

YES (TX) No. Dilution of Latino voting rights: PostShelby County conversion of City’s 

districts to add two at-large districts; 

judicial preclearance under Section 3 

was granted through 2021 and could 

possibly be extended.

18. Perez v. Abbott (I), 

253 F. Supp. 3d 864 

(W.D. Tex., May 2, 

2017) (TX 

Congressional).

YES (TX) No, PI denied 2015 WL 

6829596, No. 11-CA-360 

(W.D. Tex., Nov. 6, 2015).

Dilution of black and Latino voting 

rights: State legislature passed 

Congressional redistricting scheme 

intentionally diluted by packing and 

cracking.

19. Perez v. Abbott (II), 

2017 WL 3495922 (TX 

State Legislative 

districts).

YES (TX) Yes, but it was pre-Shelby 

County—An interim map 

was adopted for the 2012 

election, 274 F. Supp. 3d 

624, n.42.

Dilution of black and Latino voting 

rights: Various redistricting plans 

adopted by state legislature were not 

precleared, but bills were signed by 

the Gov. the day after the Shelby 

County decision.

20. Veasey v. Abbott, 

830 F.3d 216 (5th Cir., 

July 20, 2016) (TX voter 

ID law SB 14).

1326

YES (TX) Yes, parties agreed to interim 

remedy for the 2016 election, 

265 F. Supp. 3d 684, 687.

Denial of black and Latino voters’ 

rights: Strict photo voter ID law.

21. Montes v. City of 

Yakima, WA, 2015 WL 

11120966, 12-CV-3108 

(E.D. Wash., June 19, 

2015).

No (WA) No, but Plaintiffs’ proposed 

remedial plan ordered as part 

of injunction issued Feb. 17, 

2015. 2015 WL 11120966 at 

*1.

Dilution of Latino voting rights: City 

redistricting plan prevented Latinos 

from meaningful participation.

22. One Wisconsin Inst. 

v. Thomsen, 198 F.

Supp. 3d 896 (W.D. 

Wis., July 29, 2016).

No (WI) No. Denial of black and Latino voting 

rights: Cuts to early voting (in-person 

absentee).

23. Common Cause 

Indiana v. Marion Cty. 

Election Bd., 2018 WL 

1940300, at *1 (S.D. 

Ind. Apr. 25, 2018).

No (IN) Yes, court granted Plaintiffs' 

motion for a preliminary 

injunction as it relates to 

November 2018 general 

election.

Denial of black voting rights: Limited 

early voting locations had a disparate 

impact on black voters. 

 

1326 In contrast, the ongoing litigation regarding the amended Texas voter ID law, SB 5, is currently not successful 

(as of June 25, 2018). See Discussion and Sources cited supra, notes 434-59. 
232 An Assessment of Minority Voting Rights Access

Two other factors are important: (1) these are not all the cases illustrating discrimination in voting

in the post-Shelby County era, as there are Section 2 cases not reported on Westlaw, nor does this

include state and other federal cases involving racial discrimination in voting;1327 and (2) as

illustrated by the Kousser research discussed above, “enforcement is neither driven nor responsibly

measured by the raw number of filed cases, alone.”1328 Therefore, it is important to note that the

successful Section 2 cases are likely to be an undercount of the actual number of incidents of

discrimination in voting. In addition, the underlying factorsinfluencing the need, desire, and ability

to file and win Section 2 claims may be very different from era to era. For example, prior to Shelby

County, Section 2 cases were complementary or in addition to the protections of Section 5. But in

the post-Shelby County era, communities facing discrimination in voting in the formerly covered

jurisdictions can no longer rely on Section 5, and so they are forced to rely more extensively on

Section 2 and any other tools at their disposal. Finally, in the current era, because Section 2 claims

are so complex, long-term, and expensive, some voting rights advocates are instead turning to state

court or are using other federal statutes to stop potentially discriminatory voting measures.1329

On the other hand, at the Commission’s briefing, some panelists felt that the increase in postShelby County voting rights advocacy does not reflect the current state of discrimination, with

panelist Cleta Mitchell referring to it as “the grievance industry.”1330 Panelist Christian Adams

testified that recent Section 2 litigation was based on partisan motives.1331 Most post-Shelby

 

1327 Example of successes in recent Section 2 federal court cases not reported on Westlaw include: Consent Order, 

Georgia State Conference of NAACP, 2018 WL 1583160 (challenges of black voters); Settlement Agreement, 

Georgia State Conference of NAACP v. Kemp, No. 11-CV-1849 (M.D. Ga. 2018), http://www.projectvote.org/wpcontent/uploads/Settlement-Agreement-NAACP-v.-Kemp-2.9.17-1.pdf (exact match process under which minority 

voters were eight times more likely to be rejected); see also Ho, Written Testimony, supra note 446 at Appendix B, 

Other Section 2 Cases Since Shelby County (In addition, ACLU’s Dale Ho listed 12 recent Section 2 cases in which 

defendants’ motions to dismiss, for preliminary judgment or stays, were denied, or in which plaintiffs won a case 

that had included a Section 2 claim on other grounds.). 

1328 Levitt, Written Testimony, supra note 304, at 2 (“Any given case may be big or small, warranted or 

unwarranted, rushed to filing or meticulously prepared—and each of those possibilities may have a very different 

value. Factual research is vital for public policy, and quantitative analysis is a vital component of accurate factual 

research, but it is important to acknowledge and remember the inherent limitations of the quantitative analysis in 

question when attempting to discern broader meaning from the data.”); see also Discussion and Sources cited at 

notes 1276-1304, supra. 1329 Ho, Written Testimony, supra note 446, at 13 (“F]ocusing only on Section 2 litigation understates the amount of 

discrimination in the formerly covered jurisdictions (and elsewhere), because it omits voting rights violations 

adjudicated under different legal theories, many of which have been found in the formerly covered jurisdictions.” 

Ho goes on to document successful cases against racial gerrymandering in Alabama, North Carolina, and Virginia, 

interference with language assistance in Texas, and the notorious voter purge program stopped by the NVRA 

litigation in Arcia v. Detzner) (the Commission notes that a Section 2 claim was settled in Arcia). 1330 Briefing Transcript, supra note 234, at 147-48 (statement by Cleta Mitchell, characterizing voting rights 

litigation as “the grievance industry”).

1331 Briefing Transcript, supra note 234, at 84-86 (statement by Christian Adams).
Chapter 4: Examining the Data 233

County voting rights litigation has been conducted by nonpartisan voting rights groups.

1332

However, Adams stated that:

[R]easonable state election laws have been challenged under the Voting Rights Act

in a concerted effort by lawyers representing partisan interests. Right now, for

example, there is a challenge to the very existence of recall elections in Nevada

using the Voting Rights Act . . . The Public Interest Legal Foundation is a

defendant-intervenor on the side of Nevada defending the state recall elections

against this partisan use of Section 2 of the Voting Rights Act.1333

The issue is complicated because discrimination in voting may often take place for partisan gain.

Professor Levitt pointed out that “often the discrimination [in voting] may not be based on actions

but is instead based on perceived partisan [gain], nevertheless using individuals’ race or ethnicity

as a proxy for achieving [it].”1334 The Supreme Court held that if the totality of circumstances show

so, using partisanship as a proxy for racial discrimination may also violate the prohibition against

discriminatory results in Section 2. 1335 For example, if a minority group is on the cusp of being

able to exercise political power, and “the State took away their political power because they were

about to exercise it,” targeting their potential political power through racially discriminatory

methods is clearly illegal.1336

The Commission also received testimony from other experts who stated that voting rights

advocates sought to protect against racial discrimination in voting for nonpartisan reasons, and

cited data showing that both major U.S. political parties were guilty of discrimination in voting.1337

 

1332 See Figure 26: Successful Private Section 2 Litigation Compared to DOJ Section 2 Cases Filed and Litigated 

Since the Shelby County Decision. 1333 Adams, Written Testimony, supra note 669, at 3-4 (referring to Luna v. Cegavske, No. 2:17-CV-02666 (D. Nev. 

2017)). The complaint in Luna was brought by Attorney Marc Elias, who has represented the Democratic Party in 

other voting rights cases. This Section 2 VRA complaint was brought on behalf of individual black and Latino 

voters who were allegedly less able or not able to vote due to the date of the recall election. It also alleges more than 

disparate impact. Id. at ¶¶ 9-13. 1334 Briefing Transcript, supra note 234, at 60 (statement by Justin Levitt). 1335 League of United Latin Am. Citizens, 548 U.S. at 440 (“Even if we accept the District Court’s finding that the 

State’s action was taken primarily for political, not racial, reasons . . . the redrawing of the district lines was 

damaging to the Latinos in District 23.”). 1336 Id. at 403; McCrory, 831 F.3d at 238:

[T]he array of electoral “reforms” the General Assembly pursued in SL 2013-381 were not tailored to achieve 

its purported justifications, a number of which were in all events insubstantial. In many ways, the challenged 

provisions in SL 2013-381 constitute solutions in search of a problem. The only clear factor linking these 

various “reforms” is their impact on African American voters. The record thus makes obvious that the 

“problem” the majority in the General Assembly sought to remedy was emerging support for the minority party. 

Identifying and restricting the ways African Americans vote was an easy and effective way to do so. We 

therefore must conclude that race constituted a but-for cause of SL 2013-381, in violation of the Constitution 

and statutory prohibitions against intentional discrimination [in the VRA].

1337 See supra notes 371-72, 377, 395, 615-17, and Table 12. 
234 An Assessment of Minority Voting Rights Access

Summary of Current Conditions

The above research demonstrates that in the five years since the Shelby County decision, the

number of successful Section 2 cases has quadrupled. There is also a higher rate of vote denial

cases, and a concentration of successful Section 2 litigation in the formerly covered jurisdictions.

As discussed, the above cases do not reflect the entirety of current conditions.1338

The Section 2 cases also do not capture the ongoing, repetitive nature of discrimination in voting

in some states. In states like Alaska, Florida, North Carolina, and Texas, these are not the only

cases are at issue. Research in Chapters 2 and 3 of this report show the repeated and challenging

nature of ongoing discrimination in voting in these and other states, along with some emerging

national patterns of voter registration and election administration practices that have a suppressive

impact on minority voters such as cuts to early voting, voter purging, stricter voter ID and

registration requirements, and lack of accessibility.1339

Moreover, as Natalie Landreth of NARF testified during the Commission’s briefing, since the

Shelby County decision, “gains can be ephemeral.”1340 Dale Ho of the ACLU, Sherrilyn Iffil of

LDF, as well as Vanita Gupta and Justin Levitt, both former DOJ leaders, also testified that in the

current era, after significant successes in Section 2 cases, new iterations of the original form of

discrimination in voting are emerging in their wake.1341 For example, Landreth testified that in

Arizona, state legislators are passing restrictions impacting Native Americans that had previously

been abandoned under preclearance procedures, after the DOJ had requested further information

regarding whether the measures would be discriminatory.1342 Similarly, North Carolina, which at

the time of the Shelby County decision did not have many recent Section 2 cases, has experienced

a comprehensive voter suppression bill that has discriminated against minority voters in a series

 

1338 See, e.g., supra notes 1327 and 1329, discussing other post-Shelby County voting rights cases. 1339 See Appendix E: Charts of Voting Rights Issues by State, Comparing Formerly Covered With Noncovered 

Jurisdictions.

1340 Landreth, Written Testimony, supra note 1099, at 5. 1341 Briefing Transcript, supra note 234, at 218 (statement by Dale Ho) (“Successful Section 2 litigation has been a 

ray of light in states like Texas and North Carolina but these cases but in stark relief which has been lost with the 

demise in the preclearance system. Litigation has been costly and has taken years, and in the meantime, despite 

motions for preliminary injunctions, in these cases, several of which were actually granted, multiple elections were 

held in these states under rules that courts ultimately determined were intentionally discriminatory and thus 

unconstitutional. So simply put, since the Shelby County decision we have a record of constitutional violations 

necessitating a congressional remedy.”); Briefing Transcript supra note 234, at 24-25 (statement by Vanita Gupta) 

(“One is that the loss of preclearance means that the Justice Department must now use Section 2 to affirmatively sue 

jurisdictions that engage in discriminatory election practices. Litigation is slow. It is enormously time-intensive. It 

ties up very precious resources. It can take years for a case to make its way through the courts, as exemplified by 

both North Carolina and Texas litigations and all while elections are happening and harm is being done to the public 

as a result of discriminatory laws being in place. Preclearance of course was designed to stop discrimination before 

the discriminatory rules went into effect. And now the harm is ongoing and the statewide litigation challenges that 

the Justice Department has been engaged in North Carolina and Texas ate up a really significant amount of the 

Justice Department attorney resources and time.”).

1342 Landreth, Written Testimony, supra note 1099, at 5.
Chapter 4: Examining the Data 235

of elections.1343 The litigation to stop it took more than several years, was complemented by

extensive on-the-ground advocacy and organizing—and the comprehensive voter suppression bill

was not the only form of discrimination in voting in the state.1344 Both North Carolinians and

Texans experienced the real and constant threat of racially discriminatory redistricting and other

forms of discriminatory vote dilution, while also experiencing abridgment and more minor but still

concerning problems of eliminating polling places and discriminatory voter challenges and

purges.1345

In sum, both the Kousser data and the pre- and post-Shelby County data about successful Section

2 VRA violations generated and reviewed by the Commission illustrate higher incidents of

discrimination in voting in the formerly covered jurisdictions in recent years. The pattern

illustrated by the Section 2 cases reviewed above also shows that current conditions include

discrimination in voting in stateslike Ohio, Pennsylvania, and Wisconsin, which were not formerly

covered. Notably, these Section 2 cases show that the types of discrimination in voting in the postShelby County era include higher levels of vote denial and abridgement issues, and a re-emergence

of “first-generation” types of discrimination in voting.1346 This mirrors the extensive evidence of

new barriers to registering to vote and staying on the rolls as documented in Chapter 3.1347 In

addition, the overwhelming majority of the 33 written public comments the Commission received

expressed concern about new restrictions on voter access in the post-Shelby County era.1348

Current conditions also very clearly include complex litigation lasting for many years, with

difficulties in procuring preliminary injunctions or judicial preclearance, even in cases where

intentional discrimination is found. Preliminary injunctions were only issued in 39 percent of

successful Section 2 cases. This rate means that many elections were held with racially

discriminatory rules in place, in sharp contrast to pre-Shelby County conditions, during which

changes in voting procedures could not be implemented until they were shown to be

nondiscriminatory. In this regard, the umbrella of protection has been taken down, and voters are

being drenched in jurisdictions that have attempted (and temporarily succeeded) to discriminate in

their election procedures.

In addition to the above quantitative data, at the Commission’s briefing, various voting rights

experts, many of whom are experienced VRA litigators, testified that the protections of Section 2

are insufficient, and that they therefore believe that the preclearance provisions of Section 5 should

be restored through new legislation covering jurisdictions with ongoing discrimination in

 

1343 See supra notes 316-17 (discussion of voter suppression in NC in earlier chapter); Cf. supra, Table 11. 1344 See supra notes 374-76, 384-403 (various methods of discrimination; repeated patterns of minority vote dilution 

and denial in North Carolina).

1345 See id. and supra notes 449-54, and Table 12 (patterns of high levels of ongoing discrimination and new types of 

discriminatory methods inTexas).

1346 See supra Table 12. 1347 See supra Chapter 3, Current Voter Registration Issues, at notes 711-945, supra. (discussing documentary proof 

of citizenship, challenges and purges of voters on the rolls).

1348 See Briefing Transcript, supra note 234, at 253-310 (comments orally provided to the Commission from 

members of the public in Raleigh, NC).
236 An Assessment of Minority Voting Rights Access

voting.1349 Some also testified that the states with the worst current conditions of discrimination in

voting are in sharp contrast to other states that are adopting positive measures such as automatic

voter registration, with the goal of making voting easier and more accessible.1350 However, AVR

has only been enacted in two of the formerly covered jurisdictions, Alaska and California, 1351 and

those states’ records are mixed.1352 The Commission also notes that nonprofit voting rights groups

formed a National Commission on Voting Rights, which documented an over-concentration of

recent restrictive voting measures in the formerly covered jurisdictions.1353 LDF’s Sherrilyn Ifill

 

1349 Briefing Transcript, supra note 234, at 126-27 (statement by Sherrilyn Ifill) (“The Shelby County decision was 

wrong. We knew it was wrong on the day but if you thought maybe it wasn’t wrong, what we have seen in the years 

since the Shelby County decision has borne out that it was in fact wrong. We established that we can't keep up with 

the kinds of voting changes. We've established that the litigation takes too long. We’ve finally established that 

hundreds of thousands, perhaps millions of people, are being barred from participating in electing individuals who 

control their lives and who control their communities.”); Rosenberg Testimony, Briefing Transcript at 126-27 

(stating that “The loss of protections afforded by the preclearance provisions of Section 5 had a certain nuance 

aspect, and that is a lack of notice now that we have that, discriminatory practices are about to go into effect. We can 

only fight that which we know about and too often there are discriminatory practices that take root and bear fruit 

before they can be stopped. We've seen many forms in which these sorts of practices take. They range from the 

consolidation of polling places, which make it more difficult for minorities to vote, to the curtailment of early 

voting, which makes it more difficult for hourly wage workers to vote, to the purging of minority voters from voting 

lists under the pretext of list maintenance.”).

1350 Briefing Transcript, supra note 234, at 216 (“[automatic voter registration] would take care of the lion's share of 

voter registration problems that we have in the United States and it would help to increase the number of people who 

are registered to vote. Colorado has the highest rate of voter registration in its eligible population in the country—

almost 90 percent; 89.4 percent. One of the reasons why is because we do [automatic voter registration].”); Pitts 

Testimony, Briefing Transcript, at 151-52 (“My recommendation is that the Justice Department establish what I call 

a Local Redistricting Taskforce for the 2020 redistricting cycle. The Justice Department, undoubtedly, has an 

archive of just about every local redistricting plan that adopted during the 2010 cycle. The Department can and 

should systematically monitor and request redistricting plans adopted by local jurisdictions after the 2020 Census. 

And the Justice Department can and should compare what the old and new plans do to minority voting strength. And 

let me all emphasized that this should all be done in a highly visible and systematic manner. I think there would be 

two principle benefits to such a “Local Redistricting Taskforce.” First, local governments who know that the 

Department has its eye on local redistricting would be much less likely to engage in vote dilution because they know 

they are being monitored. It's a bit of the observer effect; knowledge of the act of observation will impact behavior. 

Indeed, it's what Section 5 did to accomplish over the years—deterring the adoption of discriminatory changes 

before they even got off the ground. Second, the Local Redistricting Task Force will be able to, when necessary and 

appropriate, use litigation to ensure that vote dilution does not occur on the local level and that important gains made 

by Section 5 are maintained going forward.”).

1351 See Appendix C (listing AVR states and dates of enactment). 1352 See, e.g., cases summarized in Table 12, supra. 1353 See National Commission on Voting Rights, “Protecting Minority Voters: Our Work is Not Done” (2014) 

http://votingrightstoday.org/ncvr/resources/discriminationreport (last accessed June 5, 2018). After a series of filed 

briefings, the nonpartisan, nonprofit National Commission on Voting Rights investigated types of voting restrictions 

impacting minority voters in a 2014 report. The report found that voting discrimination geographically concentrated 

in Florida, Georgia, Louisiana, Mississippi, South Dakota, and Texas, all of which are formerly covered 

jurisdictions. The report concluded that: 

x About 90 percent of voting changes proposed between 1995 and 2014 that were stopped by Section 5 involved a 

discriminatory effect with “respect to African-American voters.” Id. at 13.
Chapter 4: Examining the Data 237

testified that, “We need structural solutions to structural problems in our country.”1354 She posits

that the framers of the VRA created preclearance because they recognized that racism was a longstanding impediment in society that was likely to continue to exist well into the future. In a report

that she references as demonstrating the need to restore preclearance, her organization examined

the formerly covered jurisdictions and assembled a compendium of voting changes that LDF

believes are negatively impacting minority voters in those states.1355

On the other hand, panelist and Alabama Secretary of State John Merrill expressed his frustration

with the preclearance process. He testified that it created a “two party process” in which states had

to get the approval of the federal government before they could make any new changes.1356 He

also noted that this process was “long and complicated” and may unnecessarily burden cities,

counties, and states.1357 In Merrill’s opinion, the Shelby County decision gave Alabama the

sovereignty to administer its own elections, free of the restrictive arm of the federal government.

This sovereignty is guaranteed to states in the Constitution, according to Merrill, and was correctly

given to the states and should not have been taken away in the first place.1358 Similarly, panelist

Cleta Mitchell argued that prior voting legislation was a “flagrant abuse” of federal power,1359 and

that “there is no evidence that changes to state election laws or procedures enacted since 2013

resulted in denying any person the right to vote.”1360 She also testified that in the Shelby County

decision, the Supreme Court struck down a “bizarre, haphazard and outdated triggering scheme

for federal oversight.”1361

 

x About two-thirds of the cases involving discrimination in voting against African Americans have occurred in the 

previously covered districts, which is primarily concentrated in Mississippi, Louisiana, and Georgia. Id. at 75.

x Evidence has shown that “increasingly stringent” voter identification requirements disproportionally affect African 

Americans’ ability to vote as compared to white voters, across the country. Id. at 76.

1354 Briefing Transcript, supra note 234, at 100 (statement by Sherrilyn Ifill). 1355 Some common changes that the report identifies as disparately impacting minority voters include photo ID 

requirements, voucher requirements, racially motivated redistricting, voter purges, polling place closings, cutting 

early voting, and changing the timing of elections. See NAACP LDF, Democracy Diminished: State and Local 

Threats to Voting Post-Shelby County, Alabama v. Holder (2018) 

http://www.naacpldf.org/files/case_issue/Democracy_Diminished_State_And_Local_Voting_Changes_post_Shelby 

_V_Holder_4_18_2018.pdf (last accessed June 7, 2018), at 7-19. 1356 Merrill, Written Testimony, supra note 1039. 1357 Id. 1358 Id. 1359 Mitchell, Written Testimony, supra note 574, at 2, 4. 1360 Id. at 2. 1361 Id. at 5.
238 An Assessment of Minority Voting Rights Access

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Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 239

CHAPTER 5: EVALUATION OF THE DEPARTMENT OF 

JUSTICE’S ENFORCEMENT EFFORTS SINCE THE 2006 VRA 

REAUTHORIZATION AND THE 2013 SHELBY COUNTY

DECISION

This chapter evaluates DOJ VRA enforcement efforts during the time period from the 2006 VRA

Reauthorization on July 27, 2006, which was effective immediately, to the present, while also

demarking the period before and in the 5 years after the June 25, 2013 Shelby County decision.

The Commission bases the evaluation on information from DOJ responses to the Commission’s

interrogatories and document requests,

1362 testimony received at the Commission’s national voting

rights briefing and at SAC briefings,1363 and independent Commission staff research.

The data below examine various DOJ enforcement actions and other tools it had available to

enforce the protections of the VRA during the time period studied. Primarily, the DOJ is

empowered under federal law to bring lawsuits1364 in federal court,1365 in the performance of its

duty to enforce the VRA.1366 Its VRA enforcement tools include affirmative litigation, through

bringing a lawsuit in federal court to enforce any of the VRA provisions, which may lead to a court

opinion or a judge-ordered consent decree settling the claims. DOJ’s VRA enforcement actions

may also lead to an out-of-court settlement or “letter agreement” or “memorandum agreement.”

The DOJ may also file Statements of Interest and amicus (friend of the court) briefs with federal

courts in cases where it believes it has an interest in doing so.

Also, prior to the Shelby County decision, the DOJ was charged under Section 5 with

administrative preclearance review of voting changes in formerly covered jurisdictions, to

determine whether they would be retrogressive or not. Under Section 5, DOJ had the power to use

key tools such as requests for more information from jurisdictions, and it could object to and block

changes that the DOJ found would be retrogressive to minority voters.1367 The DOJ was also

charged with litigating cases involving bailouts from the preclearance provisions of the VRA,1368

and it defended constitutional challenges to the VRA.1369

 

1362 DOJ Response to USCCR Interrogatory No. 21; Copies of the Commission’s Interrogatories and Document 

Requests may be found in Appendix J. The Commission regrets the unjustifiably limited information DOJ provided 

in response to these Interrogatories and Document Requests but the Commission draws conclusions from available 

information nonetheless, consistent with Congress’ charge to the Commission. 

1363 The Commission record can be found here: https://www.usccr.gov/calendar/trnscrpt/Voting-Rights-BriefingTranscript-02-22-18.pdf; for summaries of and links to relevant SAC briefings, see Appendix D. 1364 52 U.S.C. § 10308(d). 1365 52 U.S.C. § 10308(e). 1366 52 U.S.C. § 10101(c); see also U.S. Dep’t of Justice, Civil Rights Division, Voting Section, Statutes Enforced by 

the Voting Section. 1367 See Figure 2, Map of Formerly Covered Jurisdictions; see also 52 U.S.C. § 10304. 1368 52 U.S.C. § 10303(a)(3). 1369 See Hanover Cty. v. Holder, No. 1:13-CV-00625 (D.D.C.), filed 05/02/2013; Linda Cty. Fire Protection Dist. v. 

Holder, No. 1:13-CV-00485 (D.D.C.), filed 04/ 10/2013; Yuba Water Dist. v. Holder, No. 1:13-CV-00407 (D.D.C.), 
240 An Assessment of Minority Voting Rights Access

Another major VRA enforcement tool of the DOJ is election monitoring. The VRA includes

statutory provisions allowing the Attorney General to send federal observers to monitor elections

inside the polls, and this has been complemented by the practice of sending DOJ staff to monitor

elections outside the polls. Quantitative data regarding each of the above tools in the pre- and postShelby County eras are set forth in detail below (see Table 13 for a summary).

During this time, the DOJ also enforced voting rights under the Americans with Disabilities Act,

the HAVA, the NVRA, and the Uniformed and Overseas Citizen Absentee Voting Act.

1370 This

work is critically important, however, the scope of the current evaluation and report is limited to

the Commission’s review of the DOJ’s enforcement of the VRA.1371

In addition to the data herein, the qualitative legal context is also important to consider. As

discussed in prior chapters, the Supreme Court’s ruling in Shelby County ushered in significant

changes in the legal ability of the DOJ to enforce protections for minority voters under the VRA.

Prior to Shelby County, jurisdictions that were covered for preclearance had to submit any changes

in voting to the DOJ or a federal court, to prove that they would not be retrogressive. In 1969, the

Supreme Court held that coverage of Section 5 was to be given broad interpretation, such that

any change affecting voting, even though it appears to be minor or indirect, returns

to a prior practice or procedure, ostensibly expands voting rights, or is designed to

 

filed 03/29/2013; Linda Cty. Water District v. Holder, No. 1:13-CV-00363 (D.D.C.), filed 03/2112013; Yuba Cty. 

Water Agency v. Holder, No. 1:13-CV-00352 (D.D.C.), filed 03/ 19/2013; City of Falls Church v. Holder, No. 1:13-

CV-00201 (D.D.C.), filed 02/15/2013; City of Wheatland v. Holder, No. 1:13-CV-00054 (D.D.C.), filed 01/14/2013; 

N.H. v. Holder, No. 1:12-CV-01854 (D.D.C.), filed 11115/2012; Browns Valley Irrigation Dist. v. Holder, No. 1:12-

CV-01597 (D.D.C.), filed 09/26/2012; Craig Cty. v. Holder, No. 1:12-CV-0 1179 (D.D.C.), filed 07/18/2012; 

Carroll Cty. v. Holder, No. 1:12-CV-01166 (D.D.C.), filed 07/17/2012; Wythe Cty. v. Holder, No. 1:12-CV-00719 

(D.D.C.), filed 05/03/2012; Grayson Cty. v. Holder, No. 1:12-CV-00718 (D.D.C.), filed 05/03/2012; Merced Cty. v. 

Holder, No. 1:12-CV-00354 (D.D.C.), filed 03/06/2012; City of Pinson v. Holder, No. 1:12-CV-00255 (D.D.C.), 

filed 02115/2012; Prince William Cty. v. Holder, No. 1:12-CV-00014 (D.D.C.), filed 01/06/2012; King George Cty. 

v. Holder, No. 1:11-CV-02164 (D.D.C.), filed 12/07/2011; Culpepper Cty. v. Holder, No. l:11-CV-0 1477 (D.D.C.), 

filed 08/16/2011; James City Cty. v. Holder, No. 1:11-CV-01425 (D.D.C.), filed 08/05/2011; City of Williamsburg 

v. Holder, No. 1:11-CV-1415 (D.D.C.), filed 08/04/2011; Rappahannock Cty. v. Holder, No. 1:11-CV-01123 

(D.D.C.), filed 06/17/2011; Alta Irrigation Dist. v. Holder, No. l:l l-CV-00758 (D.D.C.), filed 04/20/2011; City of 

Manassas Park v. Holder, No. 1:11-CV-00749 (D.D.C.), filed 04/ 19/20 11; Bedford Cty. v. Holder, No. 1:11-CV00499 (D.D.C.), filed 03/08/201 1; City of Bedford v. Holder, No. 1:1l-CV-00473 (D.D.C.), filed 03/04/2011;

Jefferson Cty. Drainage Dist. No. 7 v. Holder, No. l:l l-CV-00461 (D.D.C.), filed 03/02/2011; City of Sandy Springs 

v. Holder, No. 1:10-CV-01502 (D.D.C.), filed 09/07/2010; City of Kings Mountain v. Holder, No. 1:10-CV-01153 

(D.D.C.), filed 07/08/2010; Page Cty. v. Mukasey, No. 1:08-CV-01113 (D.D.C.), filed 06/27/2008; Washington Cty. 

v. Mukasey, No. 1:08-CV-01112 (D.D.C.), filed 06/27/2008; Amherst Cty. v. Mukasey, No. 1:08-CV-00780 

(D.D.C.), filed 05/06/2008; Middlesex Cty. v. Gonzales, No. 1:07-CV-01485 (D.D.C.), filed 08/17/2007; Essex Cty. 

v. Gonzales, No. 1:06-CV-01631 (D.D.C.), filed 09/21/2006; Northwest Austin Mun. Util. Dist. No. One v. 

Gonzales, No. 1:06-CV-01384 (D.D.C.), filed 08/04/2006. 1370 For some examples of recent enforcement of this kind, see, e.g., Common Cause of N.Y., No. 1:16-CV-06122-

NGG-RML (NVRA); United States v. Harris Cty., No. 4:16-CV-02331 (S.D. Tex. 2016) (ADA); United States v. 

State of Ill., No. 1:15-CV-02997 (N.D. Ill. 2015) (UOCAVA); Fort Bend Cty., No. 4:09-CV-1058 (HAVA). 1371 See Discussion and Sources cited in the Executive Summary at notes 2-4, supra.
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 241

remove the elements that caused objection by the Attorney General to a prior

submitted change, is subject to the Section 5 review requirement.1372

This meant that the DOJ could ensure that any voting changes had to be submitted for

preclearance,1373 the changes were blocked from implementation during the preclearance review

process (of 60 days),1374 and if they were retrogressive, DOJ could object to them and they would

be permanently blocked.1375 At times this was done through a federal court, but in the great

majority of instances, the DOJ was able to enforce Section 5 through administrative procedures

alone.1376 As discussed in Chapter 2, after the Shelby County decision, there were additional

impacts with regard to DOJ enforcement tools in the formerly covered jurisdictions as follows:

1. Voting changes go into effect immediately, without being frozen as they were under 

Section 5 (unless litigation successfully secures a preliminary injunction under the 

remaining provisions of the VRA, the Constitution, or another federal law);

2. DOJ no longer sends federal observers to formerly covered jurisdictions (unless they are 

separately ordered by a court after successful litigation under one of the remaining 

provisions of the VRA);

 

1372 U.S. Dep’t of Justice, Section 5 of the Voting Rights Act, https://www.justice.gov/crt/what-must-be-submittedunder-section-5 (last accessed June 19, 2018) (citing Allen, 393 U.S. at 565). 1373 According to federal regulation 28 C.F.R. § 51.13, Example of Changes: 

Changes affecting voting include, but are not limited to, the following examples: (a) Any change in 

qualifications or eligibility for voting. (b) Any change concerning registration, balloting, and the 

counting of votes and any change concerning publicity for or assistance in registration or voting. (c) 

Any change with respect to the use of a language other than English in any aspect of the electoral 

process. (d) Any change in the boundaries of voting precincts or in the location of polling places. (e) 

Any change in the constituency of an official or the boundaries of a voting unit (e.g., through 

redistricting, annexation, deannexation, incorporation, dissolution, merger, reapportionment, changing 

to at-large elections from district elections, or changing to district elections from at-large elections). (f) 

Any change in the method of determining the outcome of an election (e.g., by requiring a majority vote 

for election or the use of a designated post or place system). (g) Any change affecting the eligibility of 

persons to become or remain candidates, to obtain a position on the ballot in primary or general 

elections, or to become or remain holders of elective offices. (h) Any change in the eligibility and 

qualification procedures for independent candidates. (i) Any change in the term of an elective office or 

an elected official, or any change in the offices that are elective (e.g., by shortening or extending the 

term of an office; changing from election to appointment; transferring authority from an elected to an 

appointed official that, in law or in fact, eliminates the elected official’s office; or staggering the terms 

of offices). (j) Any change affecting the necessity of or methods for offering issues and propositions 

for approval by referendum. (k) Any change affecting the right or ability of persons to participate in 

preelection activities, such as political campaigns. (l) Any change that transfers or alters the authority 

of any official or governmental entity regarding who may enact or seek to implement a voting 

qualification, prerequisite to voting, or standard, practice, or procedure with respect to voting. [52 FR 

490, Jan. 6, 1987, as amended by Order 3262-2011, 76 FR 21244, Apr. 15, 2011].

1374 28 C.F.R. § 51.9. 1375 52 U.S.C. § 10304(a). 1376 See Discussion and Sources cited at notes 1383-1400, infra.
242 An Assessment of Minority Voting Rights Access

3. DOJ no longer believes that previously covered jurisdictions have to provide language 

access under Section 4(f)(4);

4. DOJ no longer has the right to receive notice of changes in voting procedures (so it 

cannot share this information with voters);1377

5. Section 5’s rule against retrogression, or determining the impact of voting changes on 

minority voters as compared to a prior benchmark, is no longer in operation;

6. Formerly covered jurisdictions no longer have to provide the DOJ or the public 

information or notice about the racial impact of their voting changes; and

7. DOJ is no longer required to regularly reach out to members of impacted 

communities.1378

The Commission analyzed the DOJ’s various VRA enforcement tools through the lens of data

regarding their level of use during the time covered by this report. Below are two charts

summarizing the data, which compares the formerly covered and non-formerly covered

jurisdictions in the pre- and post-Shelby County eras.

 

1377 This means that voting rights groups have had to set up their own monitoring programs to try to keep track of 

changes in voting procedures at the state and local level. See, e.g., Democracy North Carolina, Election Board 

Monitoring, https://democracync.org/take-action/board-of-elections-monitoring/ (last accessed June 6, 2018); Go 

Vote Georgia, Election Board Monitoring (2017), https://www.govotega.org/current-issues/election-boardmonitoring/(last accessed June 6, 2018); Common Cause Georgia, Help Wanted: Sign Up to Monitor Local Board of 

Elections for Voter Suppression, https://159georgiatogether.org/159-civic-engagement/2017/9/10/help-wanted-signup-to-monitor-local-board-of-elections-for-voter-suppression (last accessed June 6, 2018) ; Jennifer L. Patin, Voting 

Rights Communication Pipelines in Georgia after Shelby County v. Holder, June 21, 2016, 

https://lawyerscommittee.org/georgiavra2016/ (last accessed June 6, 2018). See also Lopez, Written Testimony, 

supra note 309 (Lopez states that “Since 2013, Democracy North Carolina has: Established a program monitoring 

the activities of county-level boards of elections (CBOEs), which determine critical ballot access policies; 

Established a poll monitoring program to document the impact of changes to state voting rules in H589 on voters 

and the voting experience; Engaged in substantial public education efforts to inform the general public about 

changes in state and local voting rules, including those relating to H589 and related litigation; and Participated as 

plaintiffs in litigation to remedy voting rights violations”). 1378 See, e.g., 28 C.F.R. §§ 51.33-51.50 ([DOJ] Processing of [Section 5] Submissions, covering notice, release of 

information to public, consideration, obtaining information from submitting authority, supplemental information and 

related submissions, judicial review, and record of decisions.).
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 243

Table 13: DOJ VRA Enforcement Actions in the Post-2006 VRA Reauthorization Pre- and 

Post-Shelby County Eras, in Formerly Covered and Non-formerly Covered Jurisdictions

Enforcement Tool Use in Formerly 

Covered Jurisdictions

PreShelby 

County

PostShelby 

County

Objections under Section 5 30 0

Requests for More Information under 

Section 5 144 0

DOJ Section 2 Cases Filed 1 3

Language Access cases by DOJ 8 0

Right to Assistance cases by DOJ 1 0

Statement of Interests and Amici 9 9

Observers 52 0

Monitors 37 30

(Successful Section 2 cases by private 

parties (NOT DOJ actions)1379 4 12

Enforcement Tool Use in NOT 

Formerly Covered Jurisdictions

PreShelby 

County

PostShelby 

County

DOJ Section 2 Cases Filed 6 1

Language Access cases by DOJ 12 1

Right to Assistance cases by DOJ 4 0

Statement of Interests and Amici 3 7

Observers 21 0

Monitors 99 65

(Successful Section 2 cases by private 

parties (NOT DOJ actions)1380 5 11

Source: DOJ Answers to Interrogatories and Commission Staff Research

This data and the methodology used to produce them are described in further detail below. Data

regarding DOJ enforcement actions under VRA Section 5, under Section 2’s nationwide ban on

discrimination, the VRA’s language minority provisions, the right to assistance under Section 208,

Statements of Interest and Amicus briefs, and DOJ observers and monitors are each evaluated in

turn below. The chapter ends with a summary of relevant testimony about DOJ’s VRA

enforcement efforts, and a very brief summary of the data from the entirety of this report.

 

1379 These are not DOJ actions but are included for comparative reference of trends. 1380 These are not DOJ actions but are included for comparative reference of trends.
244 An Assessment of Minority Voting Rights Access

DOJ Section 5 Preclearance Efforts (in formerly covered jurisdictions) (2006-2013)

DOJ ended its preclearance process immediately after the Shelby County decision. After the Shelby

County decision, the DOJ issued a Fact Sheet on Justice Department’s Enforcement Efforts

Following Shelby County Decision, stating that,

In the areas covered by the Section 4(b) [preclearance] formula, the department

used to be able to block discriminatory changes to election rules and practices

before they took effect . . . One of the impacts of Shelby County is that now, those

discriminatory changes can go into and remain in effect while the department

pursues litigation.1381

As discussed above, prior to Shelby County, under Section 5, any voting changes in any covered

jurisdiction had to be pre-cleared and approved by the federal government before they could be

implemented.1382 The Commission notes that the vast majority of voting changes—indeed, 99

percent—were submitted to the DOJ for its administrative review.1383 Of the small fraction that

were instead submitted to a federal court, the DOJ was named as defendant and charged with

litigating the matter.1384 During the time period in question, the DOJ’s Office of Inspector General

reported that the DOJ received between 4,000-7,000 submissions per year.1385 The activity was

especially intense during the period of redistricting required after each decennial census, which

prior to Shelby County always led to numerous changes in district lines that had to be

precleared.1386

DOJ Objections Under Section 5

From 2006-2013, DOJ issued 30 total objection letters to voting changes, and they were sent to

most, but not all, of the states covered.1387 The following chart illustrates the relevant data. In

particular, it shows that reportedly, since the 2006 Reauthorization, no objections were issued in

Alaska, Arizona, California, Florida, New Hampshire, New York, or Virginia.1388

 

1381 DOJ Fact Sheet, supra note 12; see also Discussion and Sources cited in Chapter 2, notes 301-07, supra

(regarding the Fact Sheet).

1382 See Chapter 2, The Impact of Shelby County on Federal VRA Enforcement and Sources cited at notes 301-10, 

supra. 1383 See, e.g., U.S. Dep’t of Justice, Office of Inspector General, A Review of the Operations of the Voting Section of 

the Civil Rights Division (2013) 13, https://oig.justice.gov/reports/2013/s1303.pdf.; see also 52 U.S.C. § 10304(a) 

(last accessed Aug. 6, 2018).

1384 52 U.S.C. § 10304 (authorizes suits in D.C. district court as alternative to preclearance); Michael E. Solimine, 

Rethinking District of Columbia Venue in Voting Rights Preclearance Actions, 103 GEO. L.J. ONLINE 29, 30-2 

(2014) (background on history of statute and use of lawsuits in D.C. district court as alternative to preclearance). 1385 U.S. Dep’t of Justice, Office of Inspector General, supra note 1383, at 81. 1386 See, e.g., U.S. Dep’t of Justice, Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act

(Feb. 9, 2011) 7470, https://www.justice.gov/sites/default/files/crt/legacy/2011/02/17/sec5guidance2011.pdf

(“Following release of the 2010 Census data, the DOJ expects to receive several thousand submissions of 

redistricting plans for review pursuant to Section 5 of the Voting Rights Act.”). 

1387 DOJ Response to USCCR Interrogatory No. 22. 1388 Cf. Figure 2, Map of Formerly Covered Jurisdictions.
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 245

Figure 23: DOJ Objection Letters by State (2006-2013)

Source: Analysis of DOJ Responses to USCCR Interrogatories1389

Requests for Further Information

DOJ also sent 144 “letters to jurisdictions informing them that the information provided in the

initial submission was insufficient for the Attorney General to make a determination and

requesting additional information.”1390 These letters concerned 601 different voting changes.1391

During the national briefing, the Commission heard testimony about how the preclearance process,

and particularly these letters asking for more information forced jurisdictions to amend proposed

voting changes that would have been discriminatory.1392

Declaratory Judgements (Non-Objections)

During the period studied, in 25 cases, the DOJ did not object to the voting changes that were

submitted to a federal court, and the federal court therefore ordered a Declaratory Judgment

 

1389 DOJ Response to USCCR Interrogatory No. 21. 1390 DOJ Response to USCCR Interrogatory No. 22. 1391 Id. 1392 Briefing Transcript, supra note 234, at 106-07 (statement by Natalie Landreth) (regarding Alaska).

0

1

2

3

4

5

6

7

8

9

10

AL GA LA MI MS NC SC SD TX
246 An Assessment of Minority Voting Rights Access

showing that the DOJ consented to the voting change.1393 These Declaratory Judgments include

prior DOJ objections that were later invalidated by Shelby County.

1394

Litigation Under Section 5

There are various types of litigation that the DOJ participated in under Section 5. According to

DOJ’s responses to the Commission’s Interrogatories, since the 2006 Reauthorization, the DOJ

 

1393 The DOJ provided the following cases in which a Declaratory Judgment was issued: 

(1) Georgia v. Holder, 748 F. Supp. 2d. 16 (D.D.C. 2010) (dismissed, subsequent change reviewed administratively) 

(voter registration verification); 

(2) Georgia v. Holder, No. 1:10-CV-01970 (D.D.C. 2011) (dismissed, no objections to the changes after administrative 

review) (documentary proof of citizenship); 

(3) Louisiana v. Holder, No. 1:11-CV-00770 (D.D.C. 2011) (dismissed, no objection to the change after administrative 

review) (Congressional redistricting); 

(4) Virginia v. Holder, No. 1:11-CV-00885 (D.D.C. June 20, 2011) (dismissed, no objection to the changes after 

administrative review) (state legislative redistricting); (dismissed, remaining claims after administrative review of 

subsequent change in early voting); 

(5) South Carolina v. United States, No. 1:11-CV-1454 (D.D.C. 2011) (dismissed, no objection to the change after 

administrative review) (Congressional redistricting); 

(6) South Carolina v. United States, No. 1:11-CV-01566 (D.D.C. 2011) (dismissed, no objection to the change after 

administrative review) (Congressional and legislative redistricting); 

(7) North Carolina v. United States, No. 1:11-CV-01592 (D.D.C. 2011) (dismissed, no objection to the change after 

administrative review) (Congressional and legislative redistricting);

(8) Alabama v. Holder, No. 1:11-CV-01628 (D.D.C. 2011) (dismissed, no objection to the changes after administrative 

review) (Congressional and Board of Education redistricting); 

(9) Georgia v. Holder, No 1:11-CV-01788 (D.D.C. 2011) (dismissed, subsequent change reviewed administratively) 

(Congressional and legislative redistricting);

(10) McConnell v. United States, No. 1:11-CV-01794 (D.D.C. 2011) (dismissed, no objection to the change after 

administrative review) (Senate redistricting);

(11) Williamson Cty. v. United States, No. 1:11-CV-01836 (D.D.C. 2011) (dismissed, no objection to the change after 

administrative review) (redistricting);

(12) Michigan v. United States, No. 1:11-CV-01938 (D.D.C. 2012) (granted) (Congressional and legislative 

redistricting);

(13) Virginia v. Holder, No. 1:12-CV-00148 (D.D.C. 2012) (dismissed, no objection to the change after administrative 

review) (Congressional redistricting);

(14) Florida v. United States, No. 1:12-CV-0380 (D.D.C. 2012) (dismissed, no objection to the change after 

administrative review) (Congressional and legislative redistricting);

(15) New York v. United States, No. 1:12-CV-0413 (D.D.C. 2012) (dismissed, no objection to the change after 

administrative review) (state senate redistricting);

(16) New York v. United States, No. 1:12-CV-01232 (D.D.C. 2012) (dismissed, no objection to the change after 

administrative review) (state assembly redistricting); and

(17) Alabama v. Holder, No. 1:12-CV-01232 (D.D.C. 2012) (dismissed, no objection to the change after administrative 

review) (state legislative redistricting).

DOJ Response to USCCR Interrogatory No. 21.

1394 Data generated from DOJ Response to USCCR Interrogatory No. 22.
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 247

affirmatively litigated three Section 5 cases about whether certain voting changes had to be

submitted.1395

Another type of Section 5 litigation is that brought by jurisdictions which sought preclearance

through a federal court, as the statute enabled them to choose to submit through court rather than

the DOJ.1396 These cases involved jurisdictions seeking a Declaratory Judgment to determine

whether changes in voting procedures were (or were not) retrogressive or were (or were not)

enacted with discriminatory intent.1397 The United States was named as defendant and the DOJ

litigated these cases. From the time of the 2006 VRA Reauthorization to the present, in 13 such

cases, DOJ litigated important issues such as cuts to early voting and access to voter registration

in Florida; voter registration verification procedures in Georgia; South Carolina’s and Texas’

photo voter ID laws; and redistricting during the 2010 redistricting cycle (especially in Texas).1398

 

1395 These are: (1) United States v. City of Calera, No. 2:08-CV-01982 (N.D. Ala. 2008); (2) United States v. Waller 

Cty., No. 4:08-CV-03022 (S.D. Tex. 2008); and (3) United States v. North Harris Montgomery Sch. Dist., No. 4:06-

CV-02488 (S.D. Tex. 2006). DOJ Response to USCCR Interrogatory No. 21. 1396 52 U.S.C. § 10304(a) (“State or subdivision may institute an action in the United States District Court for the 

District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure 

neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, 

or in contravention of the guarantees set forth in section 10303(f)(2) of this title, and unless and until the court enters 

such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, 

standard, practice, or procedure[.]”). 1397 Id. 1398 See, e.g., (1) Beaumont Indep. Sch. Dist., 944 F. Supp. 2d 23 (redistricting); (2) Perry v. Perez, 565 U.S. 388 

(2012) (redistricting); (3) Texas, 888 F. Supp. 2d 113 (voter ID); (4) Texas v. United States, 887 F. Supp. 2d 133 

(D.D.C. 2012) (granted as to board of education; denied as to the other three plans) (redistricting), vacated and 

remanded, Texas, 570 U.S. 928 (2013) (redistricting); (5) Galveston Cty. v. United States, No. 1:11-CV-01837 

(D.D.C. 2012) (dismissed, subsequent change reviewed administratively) (redistricting of commissioner’s court); (6) 

Nueces Cty. v. United States, No. 1:11-CV-01784 (D.D.C. 2012) (dismissed, as to justice of the peace and constable 

plans after no objection to changes after administrative review) (dismissed, as to commissioner’s court after no 

objection to subsequent change in administrative review) (redistricting); (7) Texas v. United States, 831 F. Supp. 2d 

244 (D.D.C. 2011) (redistricting); (8) South Carolina, 898 F. Supp. 2d 30 (denied in part; granted in part) (voter ID); 

(9) Florida, 885 F. Supp. 2d 299 (granted as to cross county moves) (dismissed without prejudice after retrogression 

finding on early voting claim) (dismissed, no objection to subsequent change in third party registration rules after 

administrative review); (10) Arizona v. Holder, 839 F. Supp. 2d 36 (D.D.C. 2012) (dismissed, challenge to being 

subject to preclearance); and (11) Georgia, 748 F. Supp. 2d 16 (voter registration verification). 

Also, a 2009 Government Accountability Office (GAO) report covered federal civil rights enforcement from 2001 to 

2007 and listed five cases in which the Department was a defendant in a motion for a Declaratory Judgment by a 

jurisdiction seeking preclearance under Section 5. GAO-10-75, Report to Congressional Requestors, 2009, 144-45, 

https://www.gao.gov/assets/300/297337.pdf. All five of the cases involved redistricting plans. Id. And in another 

four cases during that time period, plaintiffs brought suit to challenge the Department’s preclearance determinations 

under Section 5. Id. at 142-45. 
248 An Assessment of Minority Voting Rights Access

Additionally, at least four constitutional challenges were filed against the United States’ authority

to enforce Section 5.1399 In nine other cases, constitutional challenges also arose in the context of

other Section 5 matters that the Department defended.

1400

Finally, when jurisdictions sought to bail out of the preclearance requirements of the VRA by

showing that they had not discriminated in voting for 10 years, the DOJ was charged with

investigating their application and then filing either a proposed agreement in federal court or

litigating against the bailout petition.1401

All of these above cases occurred prior to the Shelby County decision.

Types of Voting Changes Submitted

DOJ did not provide yearly data regarding the types of voting changes submitted since the 2006

VRA Reauthorization. Instead, they provided data regarding types of changes submitted since

1965, by decade. Therefore, only information from 2010-2013 is summarized below.

 

1399 Alaska v. Holder, No. 1:12-CV-01376 (D.D.C.), filed 08/21/2012; Arizona v. Holder, No. 1:11-CV-01559 

(D.D.C.), filed 08/30/2011; Shelby Cty. v. Holder, C.A. No. 10-0651 (D.D.C.), filed 04/27/2010; LaRoque v. Holder, 

C.A. No. 10-0561 (D.D.C.), filed 04/07/2010. 1400 Beaumont Indep. Sch. Dist. v. United States, No. 1:13-CV-00401 (D.D.C.), filed 03/27/13; Alabama v. Holder, 

No. 1:12-CV-01232 (D.D.C.), filed 07/26/12; Florida v. United States, No. 1:12-CV-00380 (D.D.C.), filed 03/ 

12/12; Texas v. Holder, No. 1:12-CV-00128 (D.D.C.), filed 01 /24/ 12; Georgia v. Holder, No. 1:11-CV-01788 

(D.D.C.), filed 10/06/11; Florida v. United States, No 1:11-CV-1428 (D.D.C.), filed 08/01/11; Georgia v. Holder, 

No. 1:10-CV-01970 (D.D.C.), filed 11/15/10; Georgia v. Holder, No. 1:10-CV-01062 (D.D.C.), filed 06/22/10. One 

of these cases proceeded through full argument and decision by the Supreme Court. Northwest Austin Municipal 

Util. Dist. No. One v. Gonzales, No. 1:06-CV-01384 (D.D.C.), filed 08/04/2006. 1401 52 U.S.C. § 10303(a)(1).
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 249

Figure 24: Types of Voting Changes Submitted to DOJ for Preclearance, 2010-2013

Source: Analysis of DOJ Responses to USCCR Interrogatories1402

The data show a wide variety of types of voting changes submitted from the formerly covered

jurisdictions, reflecting the fact that the Supreme Court held that coverage of Section 5 “was to be

given broad interpretation,” such that any change in voting procedures had to be submitted for

preclearance.1403 Also, overall data show that there have been over 3,000 changes submitted due

to redistricting in every 10-year cycle since the 1965 VRA was enacted.1404 The Commission also

notes that “Miscellaneous” changes are defined as anything falling outside the categories listed

above. Based on the list of Examples of Changes published in the Code of Federal Regulations in

1987 and updated in 2011, these other types of voting changes could include: changes in

 

1402 DOJ Response to USCCR Interrogatory No. 22 (Section 5 Changes by Type and Year). 1403 U.S. Dep’t of Justice, Section 5 of the Voting Rights Act, supra note 1372, citing Allen, 393 U.S. at 565, 

abrogation recognized by Ziglar v.Abbasi, 137 S. Ct. 1843 (2017); see also U.S. Dep’t of Justice, Voting Changes 

Enacted or Administered by Any State Official Require Section 5 Review, https://www.justice.gov/crt/what-must-besubmitted-under-section-5 (last accessed June 11, 2018); see also Examples of Voting Changes, 28 C.F.R. § 51.13. 1404 U.S. Dep’t of Justice, Voting Changes Enacted or Administered by Any State Official Require Section 5 Review, 

https://www.justice.gov/crt/what-must-be-submitted-under-section-5 (There were 3,846 redistricting changes 

submitted from 1965-89, 3,456 from 1990-99, and 3,141 from 2000-09.).

0

3,000

6,000

9,000

12,000

15,000

18,000
250 An Assessment of Minority Voting Rights Access

qualifications or eligibility for voting; changes in term of office; changes in rules for ballot issues,

measures, or propositions; or transfers or alterations of authority of election officials.1405

Non-Section 5 DOJ VRA Lawsuits and Litigation-Based Enforcement Actions 

Because litigation is so central to the role of the DOJ in enforcing our nation’s laws prohibiting

discrimination in voting, it is an important element of analyzing relevant federal civil rights

enforcement efforts under the Commission’s statutory mandate, 42 U.S.C. § 1975a(c)(1). As

discussed above, litigation can be a component of Section 5 enforcement, but Section 5 also

included mandatory administrative review, and in practice, preclearance involved much more

administrative action than litigation. In contrast, the other provisions of the VRA (which are

summarized in Chapter 1),1406 such as Section 2’s nationwide prohibition against discrimination

in voting, do not have mandatory administrative review components and so must be enforced by

affirmative litigation.1407

Accordingly, this section compiles and analyzes the data regarding DOJ litigation under the VRA,

from the time of the 2006 Reauthorization, and since the June 25, 2013 Shelby County decision.

The data below show that DOJ has brought fewer actions to enforce the non-preclearance

provisions of the VRA over time (see Figure 25), and that private parties have been bringing a

higher number of actions to enforce the national prohibition against racial discrimination in voting

found in Section 2 (see Figure 26). The data also show a sharp decline in the number of language

access cases filed by DOJ (see Figure 27), as well as a recent failure to file any cases to enforce

Section 208 of the VRA, which provides for voters’ rights to assistance, including for voters with

disabilities and limited-English proficiency (see Figure 28).

Section 2 Cases

Since the 2006 VRA Reauthorization (July 27, 2006), the DOJ filed 11 Section 2 cases.

1408 These are:

1. United States v. City of Philadelphia, No. 06-4592 (E.D. Pa. 2006) (failure to provide 

Spanish-language access impacting Latino voters);

2. United States v. Village of Port Chester, No. 06-CIV-15173 (S.D.N.Y. 2006) (dilution 

of Latino voting rights);

3. United States v. Georgetown County School District, No. 2:08-CV-00889-DCN (D.S.C. 

2008) (dilution of black voting rights);

 

1405 See 28 C.F.R. § 51.13. 1406 See Chapter 1, Summary of Major VRA Provisions, and Sources cited at notes 101-37, supra. 1407 Id. at notes 138-48 (The Relationship Between Sections 2 and 5); see, e.g., 52 U.S.C. § 10301 (Section 2). 1408 The Commission notes that DOJ litigation of Section 2 cases initiated prior to the 2006 Reauthorization also 

occurred during this time period. See Long Cty., 2:06-CV-00040 (complaint filed and settled prior to 

Reauthorization); United States v. City of Euclid, No. 1:06-CV-01652-KMO (N.D. Ohio 2006) (complaint filed prior 

to Reauthorization and settled after).
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 251

4. United States v. School Board of Osceola County, No. 6:08-CV-582-ORL-18DAB (M.D. 

Fla. 2008) (dilution of Latino voting rights);

5. United States v. Salem County and the Borough of Penns Grove, No. 1:08-CV-03276 

(D.N.J. 2008) (denial of Latino voting rights);

6. United States v. Euclid City School Board District Board of Education, No. 1:08-CV02932 (N.D. Ohio 2008) (dilution of black voting rights);

7. United States v. Town of Lake Park, No. 9:09-CV-80507 (S.D. Fla. 2009) (dilution of 

black voting rights); 

8. United States v. Texas, No. 2:13-CV-00263 (S.D. Tex. 2013) (intervention regarding 

Texas’ strict voter ID law) (denial of black and Latino voting rights); 

9. United States v. Texas, No. 5:11-CV-00360 (W.D. Tex. 2013) (intervention regarding 

statewide redistricting plans for the State House and U.S. House of Representatives); 

10. United States v. North Carolina, No. 1:13-CV-00861 (M.D.N.C. 2013) (denial of black 

voting rights); and 

11. United States v. Eastpointe, No. 2:17-CV-10079 (E.D. Mich. 2017) (dilution of black

voting rights).1409

Seven of these 11 cases were brought prior to Shelby County, and four were initiated in the five

years since the June 25, 2013 Shelby County decision. Several of the DOJ’s post-Shelby County

Section 2 cases were first brought by private groups who sued jurisdictions, after which the DOJ

intervened.

1410 Of the seven post-2006 VRA Reauthorization cases brought prior to the Shelby

County decision, only one was brought in a formerly covered jurisdiction (South Carolina).

1411 Of

the four brought after the Shelby County decision, three were brought in formerly covered

jurisdictions (and two were brought in Texas alone).1412

And as discussed in Chapter 4, of the successful private Section 2 cases won since Shelby County,

12 out of 23 occurred in the formerly covered jurisdictions.

1413

 

1409 DOJ Response of USCCR Interrogatory No. 18; Internal Legal Research. 1410 In addition to the DOJ’s intervention in the Texas redistricting case brought by private parties, the case brought 

by the DOJ in United States v. North Carolina was joined with the original case filed by impacted individuals and 

community groups in McCrory, 831 F.3d 204. See, e.g., United States’ Motion to Consolidate Cases, N. Carolina 

State Conference of NAACP v. McCrory, No. 1:13-CV-658 (M.D.N.C. 2013), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/US-MotionToConsolidate_000.pdf. Also, United States. 

v. Texas, No. 2:13-CV-00263 (S.D. Tex. 2013) was joined with the original case filed by impacted individuals and 

community groups in Veasey, 830 F.3d 216. See Unopposed Motion to Consolidate, Veasey v. Abbott and United 

States v. Texas, 2:13-CV-00193 (S.D. Tex. 2013), 

http://moritzlaw.osu.edu/electionlaw/litigation/documents/VeaseyUnopMot2Consolidate.pdf. 1411 See Chapter 2, Figure 2: Map of Section 5 Formerly Covered Jurisdictions, DOJ Section 5. 1412 See Chapter 4, Table 12. (The pattern illustrated by private litigation shows a meaningful concentration of 

Section 2 enforcement in the formerly covered jurisdictions.) 1413 Id. 
252 An Assessment of Minority Voting Rights Access

Returning to the quantitative analysis of DOJ’s VRA enforcement efforts, the following chart

shows how DOJ’s Section 2 cases initiated since the 2006 Reauthorization were spread out over

the dates in question.

Figure 25: DOJ Section 2 Cases Filed Since the 2006 VRA Reauthorization—2018

Source: Analysis of DOJ Responses to USCCR Interrogatories (by date of case filings)1414

The above data show some unevenness and an overall decline in Section 2 cases filed by the DOJ

prior to the Shelby County decision, with a clearer decline in the five years since the Shelby County

decision.

For further analysis of DOJ Section 2 litigation in the post-Shelby County era, the Commission

continues to the next data set and chart. To compare DOJ’s enforcement work with that of private

groups, the Commission examined data about the number of successful Section 2 cases brought

by private groups in the post-Shelby County era to date. This methodology and the nature of the

Section 2 cases brought by private voting rights lawyers on behalf of minority voters were

 

1414 DOJ Response to USCCR Interrogatory No. 18; U.S. Dep’t of Justice, Cases Raising Claims Under Section 2 of 

the Voting Rights Act (see complaints and date of filing), https://www.justice.gov/crt/cases-raising-claims-undersection-2-voting-rights-act-0#long.

0

0.5

1

1.5

2

2.5

3

3.5

4

4.5
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 253

discussed in Chapter 4.1415 Moreover, the Commission compares the number of successful Section

2 cases brought by private groups, compared to only those filed by the DOJ. This methodology

was chosen mainly because of the relatively low number of DOJ cases filed, and also because

litigation of several of the DOJ cases is still ongoing. Specifically, the DOJ participated in the

successful litigation of NC NAACP v. McCrory,1416 regarding North Carolina’s omnibus

restrictions in voting that were struck down by the Fourth Circuit, but the other three post-Shelby

County DOJ Section 2 cases are all still ongoing.1417

Even using this quantitative methodology that results in conservative estimates of DOJ Section 2

litigation as compared with private Section 2 litigation, the difference in the number of successful

cases brought by private groups in comparison to cases filed and litigated by the DOJ is significant.

This disparity is illustrated by the following bar graph:

Figure 26: Successful Private Section 2 Litigation Compared to DOJ Section 2 Cases

Filed and Litigated Since the Shelby County Decision

Source: Internal Legal Research & Analysis1418

 

1415 See Discussion and Sources cited in Chapter 4, Table 12, supra. As discussed in Chapter 4, while this method 

accounts for all DOJ Section 2 cases, the method leaves out some Section 2 decisions that are not reported on 

Westlaw, so the private Section 2 cases could be an undercount. Ho, Written Testimony, supra note 446 at 

Appendix B, Other Section 2 Cases Since Shelby County (in addition, ACLU’s Dale Ho listed 12 recent Section 2 

cases in which defendants’ motions to dismiss, for preliminary judgment or stays, were denied, or in which plaintiffs 

won a case that had included a Section 2 claim on other grounds). 1416 McCrory, 831 F.3d 204. 1417 DOJ Response to USCCR Interrogatory No. 18, at 6; Internal Legal Research; United States v. Texas, No. 2:13-

CV-00263; United States v. Texas, No. 5:11-CV-00360 (W.D. Tex. 2013); United States v. Eastpointe, No. 2:17-

CV-10079 (E.D. Mich. 2017). 1418 The following chart summarizes the tally of cases compiled from Westlaw-identified and DOJ cases (to date):

0

1

2

3

4

5

6

7

8

9

2013 postShelby2014 2015 2016 2017 2018 (to date)

Successful Private Section 2 cases (decided) DOJ Section 2 cases (filed)
254 An Assessment of Minority Voting Rights Access

Notably, the DOJ has statutory authority to affirmatively enforce the provisions of the VRA on its

own, and is not dependent on receiving a complaint from an individual plaintiff.1419 The VRA also

specifically authorizes federal appropriations for the Department’s VRA enforcement work.1420

Because of this statutory authority, the DOJ’s path is more direct and less cumbersome than the

level of proof that impacted individuals and community groups must meet to demonstrate legal

standing to enforce the VRA.1421 The DOJ also has substantial investigatory resources, including

social science experts on staff, who support Section 2 investigations.1422 However, of all the postShelby County Section 2 cases examined, the DOJ has brought only a small fraction—four out of

23 (17.4 percent, including only Westlaw-reported, successful Section 2 cases).

At the national briefing, the Commission heard testimony from voting rights experts, including

litigators, who acknowledged the positive impact of the DOJ’s work in bringing Section 2 litigation

in North Carolina and Texas in the post-Shelby County era.1423 Testimony included a recognition

that DOJ dedicated its resource and expertise to these precedential cases.1424 The Commission

notes that in the U.S. common law system, law is established through the Constitution, by

 

DATE Successful Private Section 2 cases (on Westlaw) (decided) DOJ Section 2 cases (filed)

2013 post-Shelby County 1 3

2014 4 0

2015 2 0

2016 8 0

2017 5 1

2018 (to date) 1 0

1419 52 U.S.C. § 10308(d) (The Voting Rights Act authorizes the Attorney General to file a civil action on behalf of 

the United States of America seeking injunctive, preventive, and permanent relief for violations of Section 2 of the 

Act).

1420 52 U.S.C. § 10312 (“There are hereby authorized to be appropriated such sums as are necessary to carry out the 

provisions of chapters 103 to 107 of this title.”). 1421 See OCA-Greater Houston v. Texas, 867 F.3d 604, 610 (5th Cir. 2017) (holding that a nonprofit organization 

whose sole purpose is to protect voter rights must still demonstrate an injury in fact to have standing in an article III 

court); Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1340 (11th Cir. 2014) (noting that to have standing in a voting 

rights action an individual must demonstrate an injury in fact is identifiable, concrete, and actual or imminent); 

Perry-Bey v. City of Norfolk, Va., 678 F. Supp. 2d 348 (4th Cir. 2009) (holding that an individual did not have 

standing where she failed to allege that she was a member of a minority group and that her right to vote was 

abridged based on her race or color); Roberts v. Wamser, 883 F.2d 617 (8th Cir. 1989) (holding that an individual 

must demonstrate that her voting rights have been denied or impaired to have standing under the Voting Rights Act). 

1422 U.S. Dep’t of Justice, A Review of the Operations of the Voting Section of the Civil Rights Division, 9, 

https://oig.justice.gov/reports/2013/s1303.pdf (last accessed June 13, 2018); see also McCrary, Written Testimony,

supra note 445, at 3-4 (DOJ undertakes quantitative analysis in Section 2 cases; but note that staff analysis is 

necessarily complemented by expert witnesses for complex litigation).

1423 Briefing Transcript, supra note 234, at 219-20 (statement by Dale Ho); see also Briefing Transcript, supra note 

234, at 220 (statement by Ezra Rosenberg).

1424 Briefing Transcript, supra note 234, at 24 (statement by Vanita Gupta).
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 255

legislation such as the VRA, and also by judges setting legal precedents through their decisions,

which are considered to be binding and generally must be followed in their jurisdictions in the

future.1425

At the Commission’s briefing, however, experts also testified that the DOJ should be doing more

to fight ongoing discrimination in voting.1426 For example, remarking on the post-Shelby County

Section 2 cases, Dale Ho noted that “of these 211427 successful Section 2 cases nationwide since

Shelby County, the ACLU has been counsel in 5 (or nearly one-quarter) of them. The United States

Department of Justice, with its considerable resources, has been counsel in 4 of the 21 successful

 

1425 See, e.g., Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist

Court, 52 VAND. L. REV. 647, 661-62 (1999) (explaining the doctrine of stare decisis, which is law made through 

judicial decisions); see also Hon. John M. Walker, Jr., Senior Circuit Judge, U.S. Court of Appeals for the Second 

Circuit, “The Role of Precedent in the United States,” Stanford Law School China Guiding Cases Project, 

Commentary No. 15, 2016, 1 (“A prior case must meet two requirements to be considered binding precedent. First, 

as compared with the present matter before the judge, the prior case must address the same legal questions as 

applied to similar facts. The higher the degree of factual similarity, the more weight the judge gives the prior case 

when deciding the present matter. The degree of similarity of a prior case is therefore often a point of contention 

between parties to a litigation. Litigants compare and contrast prior cases with their own in briefs submitted to the 

court. The judge reviews and weighs these arguments but also may conduct his own research into, and analysis of, 

prior cases. The second requirement for a case to be considered binding precedent is that it must have been decided 

by the same court or a superior court within the hierarchy to which the court considering the case belongs. The 

American federal court system has three tiers: the district courts, the courts of appeals (divided into “circuits” with 

distinct geographic boundaries), and the U.S. Supreme Court. Each state also has a multi-tiered court system and, if 

certain jurisdictional requirements are met, the U.S. Supreme Court may review the decisions of the highest court in 

each state. Each district court thus follows precedents handed down by the Supreme Court and by the court of 

appeals in the circuit encompassing the district court. Each court of appeals follows its own precedents and 

precedents handed down by the Supreme Court, but it need not adhere to decisions of courts of appeals in other 

circuits. A court may consider decisions by other, non-superior courts to be persuasive precedent, however, and 

follow them if they are well-reasoned and if there is no binding precedent that conflicts.”). See also Briefing 

Transcript, supra note 234, at 101-02 (statement by Natalie Landreth) (stating that DOJ not bringing its own 

litigation but instead focusing on amicus briefs and Statements of Interest, “[t]hough important, it doesn’t compare 

to the impact of them [DOJ] bringing their own case.”).

1426 Briefing Transcript, supra note 234, at 220-21 (statement by Dale Ho) (“Now, in the meantime, DOJ has 

engaged in some commendable work to enforce Section 2, but it could have been doing and could be doing more in 

that regard. Its voting section dwarfs the ACLU's voting rights project, which I direct, but it has brought fewer 

Section 2 cases since Shelby County than we have. And unfortunately there are signs that DOJ may be turning away 

from its historic mission of promoting voter access. Now, in addition, to abandoning its positions in Voting Rights 

litigation out of Texas and Ohio, last year DOJ requesting information on list-maintenance practices from 44 states, 

a sweeping inquiry that the former head of the DOJ's civil rights who testified, Vanita Gupta, described as virtually 

unprecedented.”).

1427 Among other cases, Commission staff identified another case that was decided on February 23, 2018, after Ho’s 

Written Testimony and accompanying research was submitted on February 2, 2018. Luna, 291 F. Supp. 3d 1088. 

Staff also deleted one case in which research showed the Section 2 claim was not successful. Jackson v. Bd. of 

Trustees of Wolf Point, Mont., 2014 WL 1794551, No. CV-13-65-GF-BMM-RKS, , at *1, *3 (D. Mont. Apr. 21, 

2014), report and recommendation adopted as modified sub nom., Jackson v. Bd. of Trustees of Wolf Point, Mont., 

Sch. Dist. No. 45-45A, 2014 WL 1791229, No. CV-13-65-GF-BMM-RKS (D. Mont. May 6, 2014); Cf. Ho, Written 

Statement, supra note 446, at 12.
256 An Assessment of Minority Voting Rights Access

Section 2 cases.”1428 Ho and others stated that due to the complexity of these cases and the

resources needed, the federal government should be doing more.1429 In contrast, Hans von

Spakovsky believes that the Department’s low number of recent Section 2 cases mean that current

conditions do not evidence ongoing discrimination in voting.1430 He also expressed concern about

the low number of cases brought during the Obama Administration,1431 while concluding: “But, in

summary I would say that the Voting Rights Act remains a powerful statute whose remedies are

more than sufficient to stop those rare instances of voting discrimination when they occur.”1432

Several panelists also expressed deep concern that in their view, the DOJ had reversed its position

in the Texas voter ID Section 2 litigation.1433 In Congressional testimony, the DOJ expressed

another view, and stated that the change was due to Texas’ enacting an amended voter ID law with

exceptions for voters with reasonable impediments to being able to secure current, state-issued

photo ID.1434 The legal and factual issues surrounding the DOJ’s position in this case over time

are discussed in Chapter 2.1435

Language Access Cases and Enforcement Efforts in the Pre- and Post-Shelby County

Era

Since the 2006 VRA Reauthorization, the DOJ filed a number of cases to enforce Sections 4(e),

4(f)(4), and 203 of the VRA (collectively the “language minority” or “language access”

provisions).1436 The data show a decreasing level of enforcement of the language access provisions

of the VRA (see Figure 27, after the following explanation of language access). Under the VRA,

the term “language minorities” or “language minority group” means persons who are American

Indian, Asian American, Alaska Natives, or of Spanish heritage.1437

As discussed in previous chapters, Section 203 applies when a certain threshold showing the

inherent need of voters with limited-English proficiency (LEP) has been met,1438 and that voters

 

1428 Ho, Written Testimony, supra note 446, at 12 (citations omitted). See Discussion and Sources cited in Chapter 4, 

Voting Rights Act Litigation Trends at notes 1340-41, supra. 1429 See Discussion and Sources cited in Chapter 4, Successful Section 2 Litigation After the Shelby County

Decision, at note 1329, and Summary of Current Conditions, at notes 1340-42, supra. 1430 von Spakovsky, Written Testimony, supra note 325, at 2-3. 1431 Briefing Transcript, supra note 234, at 29-30 (statement by Hans A. von Spakovsky). 1432 Id. at 28. 1433 Briefing Transcript, supra note 234, at 114 (statement by Nina Perales); see also Briefing Transcript, supra note 

234, at 27 (statement by Vanita Gupta).

1434 John Gore, Acting Assistant Att’y Gen. Civil Rights Division, 2020 Census Project Report: Hearing Before the 

H. Comm. on Oversight and Government Reform, 115th Cong., C-SPAN video (May 18, 2018 at 1:27-

1:28), https://www.c-span.org/video/?445756-1/justice-department-official-progress-report-2020-

census&start=4984. 

1435 See Discussion and Sources cited in Chapter 2, Texs, at notes 433-39, supra. 1436 DOJ Response to USCCR Interrogatory No. 25. 1437 52 U.S.C. § 10310(c)(3). 1438 Section 203 applies in jurisdictions in which more than 5 percent of citizens of voting age are members of a 

single language minority group and are LEP; in which over 10,000 citizens of voting age meet the same criteria; and 
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 257

from that language minority experience higher than average illiteracy rates.1439 The definition of

LEP is persons who do not ‘‘speak or understand English adequately enough to participate in the

electoral process,” according to Census data.1440 Determinations of which jurisdictions meet the

threshold and are covered by Section 203 are made by the Census every five years.1441 Figure 10

in the Language Access Issues section of Chapter 3 shows a Census Bureau map of the 263

jurisdictions covered after the most recent determinations, of December 2016.1442

In its responses to the Commission’s Interrogatories, DOJ reported that:

Following the [December 2016] determinations [under Section 203], the

Department undertook an extensive program of outreach to covered jurisdictions.

The Department sent letters to all of the covered jurisdictions, including tailored

letters for jurisdictions covered for the first time and jurisdictions covered for new

or additional languages. The letters advised them of their Section 203

responsibilities, provided guidelines and best practices for developing a successful

language program, and a contact for additional assistance. In the weeks and months

following the determinations, the Department has continued outreach to election

officials and members of minority language communities, focusing particularly on

jurisdictions with new Section 203 obligations. The Department has also monitored

elections in the field in a number of covered jurisdictions since the 2016

determinations.1443

As discussed in Chapter 3, in addition to Section 203, Section 4(e) of the VRA protects the rights

of Puerto Ricans educated in Spanish,1444 whether or not they reside in a jurisdiction covered under

the threshold formula of Section 203. Despite the need of Puerto Ricans in jurisdictions that

conduct elections in English-only, particularly after Hurricane María displaced hundreds of

thousands to the mainland in September 2017,1445 DOJ has not brought a case under Section 4(e)

since 2012.1446

 

in Indian Reservations in which a whole or part of the population meets the 5 percent threshold. 52 U.S.C. § 

10503(b)(2)(A)(i).

1439 52 U.S.C. § 10503(b)(2)(A)(ii). 1440 52 U.S.C. § 10503(b)(2)(A)(i). 1441 See, e.g., Voting Rights Act Amendments of 2006, Determinations Under Section 203, 81, Fed. Reg. 87532. 1442 See Figure 10; see also U.S. Census Bureau, United States Section 203 Determinations Coverage eff. December 

2016, 2016, https://www.census.gov/geographies/reference-maps/2016/dec/rdo/section-203-determinations.html. 1443 DOJ Response to USCCR Interrogatory No. 28 at 19. 1444 See Discussion and Sources cited in Chapter 3, supra notes 1129-31 (discussing 52 U.S.C. § 10303(a)(4)(e)); see 

also Arroyo v. Tucker, 372 F. Supp. 764, 766-67 (E.D. Pa. 1974); Torres v. Sachs, 381 F. Supp. 309, 311-12 

(S.D.N.Y. 1974); Berks Cty., 277 F. Supp. 2d at 579 (decision also included findings of violations of Sections 2 and 

208 of the VRA).

1445 See Discussion and Sources cited in Chapter 3 supra notes 1132-33. 1446 See List of DOJ Language Cases supra note 1447. 
258 An Assessment of Minority Voting Rights Access

The DOJ pursued 21 language access enforcement efforts in the time period covered by this

report,1447 but as illustrated in the graph below, only one was filed in the post-Shelby County era.

Of the 21 language enforcement efforts, 18 were to enforce the rights of Spanish-speaking voters

alone, while one in California was on behalf of Chinese- and Korean-speaking voters, another in

California was on behalf of Chinese- and Spanish-speaking voters, and an out-of-court settlement

was entered into in South Dakota on behalf of Lakota-speaking voters.1448

Eight out of the 21 language access cases were brought in jurisdictions that were formerly covered

under Section 5, prior to the Shelby County decision.1449

The great majority of these cases were resolved by court-ordered consent decrees, under which the

DOJ may send observers and monitor bilingual election procedures for several years after the

 

1447 These are: 

1. United States v. Napa Cty., see Memorandum of Agreement (N.D. Cal. 2016) (Spanish), 

https://www.justice.gov/crt/case-document/napa-county-memorandum-agreement; 

2. United States v. Orange Cty., No. 7:12-CV-03071 (S.D.N.Y. 2012) (Spanish);

3. United States v. Colfax Cty., No. 8:12-CV-00084 (D. Neb. 2012) (Spanish);

4. United States v. Lorain Cty., No. 1:11-CV-02122 (N.D. Ohio 2011) (Spanish);

5. United States v. Alameda Cty., No. 3:11-CV-03262 (N.D. Cal. 2011) (Spanish and Chinese);

6. United States v. Cuyahoga Cty., No. 1:10-CV-01949 (N.D. Ohio 2011) (Spanish);

7. United States v. Shannon Cty., S. Dakota, see Memorandum of Agreement (D.S.D. 2010) (Lakota Language); 

https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/shannon_moa.pdf (a formerly covered jurisdiction, 

see Jurisdictions Previously Covered Under Section 5, https://www.justice.gov/crt/jurisdictions-previously-coveredsection-5); 

8. United States v. Riverside Cty., No. 2:10-CV-01059 (C.D. Cal. 2010) (Spanish);

9. United States v. Fort Bend Cty., No. 4:09-CV-1058 (S.D. Tex. 2009) (Spanish) (Texas was a formerly covered state, 

see Jurisdictions Previously Covered Under Section 5, https://www.justice.gov/crt/jurisdictions-previously-coveredsection-5); 

10. United States and Commw. of Mass., Regarding City of Worcester, see Memorandum of Understanding (Sept. 22, 

2008) (Spanish), https://www.justice.gov/crt/memorandum-understanding; 

11. United States v. Salem Cty. and the Bor. of Penns Grove, No. 1:08-CV-03276 (D.N.J. 2008) (Spanish);

12. United States v. Kane Cty., No. 1:07-CV-045105 (N.D. Ill. 2007) (Spanish);

13. United States v. City of Earth, No. 5:07-CV-00144 (N.D. Tex. 2007) (Spanish) (in formerly covered state);

14. United States v. Littlefield ISD, No. 5:07-CV-00145 (N.D. Tex. 2007) (Spanish) (in formerly covered state);

15. United States v. Post ISD, No. 5:07-CV-00146 (N.D. Tex. 2007) (Spanish) (in formerly covered state);

16. United States v. Seagraves ISD, No. 5:07-CV-00147 (N.D. Tex. 2007) (Spanish) (in formerly covered state);

17. United States v. Smyer ISD, No. 5:07-CV-00148 (N.D. Tex. 2007) (Spanish) (in formerly covered state);

18. United States v. Galveston Cty., No. 3:07-CV-00377 (S.D. Tex. 2007) (Spanish) (in formerly covered state);

19. United States v. City of Walnut, No. 2:07-CV-02437 (C.D. Cal. 2007) (Chinese and Korean);

20. United States v. City of Philadelphia, No. 2:06-CV-45920-45924592 (E.D. Pa. 2006) (Spanish); and

21. United States v. City of Springfield, No. 3:06-CV-30123 (D. Mass. 2006) (Spanish).

Source: DOJ Response to Interrogatory No. 25); Internal Legal Research. 1448 Id. 1449 Id. 
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 259

Consent Decree is signed, to ensure compliance.1450 But 3 of the 21 were resolved by out-of-court

agreements.1451

Figure 27: DOJ Language Cases Brought Since the 2006 VRA Reauthorization

Source: Analysis of DOJ Response to USCCR Interrogatories1452

In light of the testimony the Commission received during the national briefing, as well as the

Commission’s independent, internal research showing ongoing violations of the rights of LEP

voters to language access,1453 DOJ’s filing of only one language case since the Shelby County

decision is in contrast to an ongoing need for language access protections.1454 The data in Figure

 

1450 U.S. Dep’t of Justice, Cases Raising Claims under Language Minority Provisions of the Voting Rights Act, 

https://www.justice.gov/crt/cases-raising-claims-under-language-minority-provisions-voting-rights-act#cochise (last 

accessed June 13, 2018). 1451 These are: (1) United States v. Napa Cty., Memorandum of Agreement (N.D. Cal. 2016) (Spanish) (Section 

203); (2) United States v. Shannon Cty., S. Dakota, Memorandum of Agreement (D.S.D. 2010) (Lakota Language) 

(Section 203); and (3) United States and Commw. of Mass., Regarding City of Worcester, Memorandum of 

Understanding (Sept. 22, 2008) (Spanish) (Section 4(e)).

1452 DOJ Response to USCCR Interrogatory No. 25 supplemented by internal research. 1453 See Discussion and Sources cited in Chapter 3, supra notes 1114-28, 1132-33, 1147-72. 1454 As discussed in Chapter 3: 

Of approximately 291 million people in the United States over the age of five, 60 million people, or just over 20 

percent, speak a language other than English at home. Among those other languages, the top two categories are 

Spanish and Asian languages, at 37 million and 11.8 million people, respectively. This means, nationally, about 

3 out of every 4 Asian Americans speak a language other than English at home and a third of the population is 

Limited English proficient (LEP), that is, has some difficulty with the English language. Voting can be 

intimidating and complex, even for native English speakers. It becomes that much more difficult for citizens 

whose first language is not English. Voting materials are written for a twelfth grade level of comprehension,

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5

6

7

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260 An Assessment of Minority Voting Rights Access

27 clearly show that the DOJ was much more active in this area in previous years. As various

experts told the Commission, there are millions of LEP voters, their numbers are growing, and due

to widespread noncompliance with the language access provisions of the VRA, their voting rights

are at risk.1455

Moreover, the Commission received credible testimony citing reports showing that when language

access rights are enforced, participation of LEP voters increases,1456 and civic participation

certainly indicates a form of integration into American democracy. After the DOJ’s enforcement

action in Napa County, California which resulted in an out-of-court agreement with the DOJ to

come into compliance with Section 203 of the VRA, the county Registrar of Voters stated that:

“One of the reasons for Napa County’s excellent, 82.28 percent turnout [in 2016] was the

participation of Spanish language voters.”1457 In 2007, NARF brought litigation in Alaska

regarding widespread language access violations under Sections 5, 203, and 208 of the VRA.

Natalie Landreth testified that:

[I’d] like to point out that at no time did the Department of Justice intervene or

assist at all. In fact, in Indian country the DOJ has not brought a case on behalf of

Native Americans in almost 20 years. The last one was South Dakota in 2000 and

before that Wayne County in 1999. Their involvement has been limited to filing

amicus briefs1458 or statements of interest. Though important, it doesn’t compare to

the impact of them bringing their own case.1459

Section 208 Cases—The Right to Assistance

Section 208 of the VRA provides for a right to assistance, which applies to LEP voters and voters

with disabilities.1460 The statutory language clearly protects the rights of these voters to bring

persons of their choice into the voting booth to assist them, including family members or

 

which is much greater than that required for purposes of naturalization, making voting more challenging for 

voters with language barriers. 

Asian Americans Advancing Justice, Written Testimony, supra note 1114, at 3 (citations omitted). 1455 Id. 1456 Id. at 15 (examples of registration increasing by 40-50 percent; turnout among Vietnamese eligible voters 

doubled in Harris County, Texas); see also Marschall & Rutherford, Voting Rights for Whom?, supra note 1128, at 

590; see also Fraga & Merseth, Examining the Causal Impact, supra note 1114, at 31 (“analysis attributes a 

significant increase in Latino voter registration and Asian-American turnout to coverage under [Section 203 of] the 

VRA”). 

1457 Press Release, John Tuteur, News Release: NAPA County Released From DOJ Oversight (Dec. 7, 2016), 

https://www.countyofnapa.org/DocumentCenter/View/847. 1458 Frequently, a person or group who is not a party to an action, but has a strong interest in the matter, will petition 

the court for permission to submit a brief in the action with the intent of influencing the court's decision. Such briefs 

are called “amicus briefs.” See, e.g., Amicus Curiae, Wex Legal Dictionary, 

https://www.law.cornell.edu/wex/amicus_curiae. 1459 Briefing Transcript, supra note 234, at 96 (statement by Natalie Landreth). 1460 52 U.S.C. § 10508. 
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 261

volunteers, as long as the assistor is not their employer or union agent.1461 Added to the VRA as

part of the 1982 amendments, Section 208 provides for the right to vote with meaningful access

and understanding, without literacy issues or other barriers that voters may have.1462 It provides

that: “Any voter who requires assistance to vote by reason of blindness, disability, or inability to

read or write may be given assistance by a person of the voter’s choice, other than the voter’s

employer or agent of that employer or officer or agent of the voter’s union.”1463 This text applies

to LEP voters, other voters with difficulty reading or writing English, as well as voters with

disabilities or impairments.

Since the reauthorization of July 27, 2006, DOJ has brought five cases to enforce Section 208 of

the VRA, all before the Shelby County decision.1464 As discussed earlier in this report, all known

Section 208 enforcement actions undertaken by the DOJ were language access cases. In contrast,

only private groups have used Section 208 to enforce the rights to assistance for voters with

disabilities.1465 Also, only one of DOJ’s Section 208 cases was brought in a formerly covered

jurisdiction (in Fort Bend County, Texas, in 2009).1466

The relatively small and declining number of DOJ enforcement actions under Section 208 (all of

which were brought for LEP voters) is illustrated by the following graph.

 

1461 See, e.g., DOJ Cases cited in note 1464, infra. 1462 See, e.g., Proceedings and Debates of the 97th Congress, Voting Rights Act Amendments of 1982 (S.1992), 128 

Cong. Rec. S. 6497-6561 (daily ed. June 9, 1982) at 344-45 (remarks of Sen. Stevens (R-WV)). 1463 52 U.S.C. § 10508. 1464 These are:

1. United States v. Fort Bend Cty., No. 4:09-CV-01058 (S.D. Tex. 2009) (in a formerly covered state, see DOJ Section 

5, supra note 226.);

2. United States v. Salem Cty. and the Bor. of Penns Grove, No. 1:08-CV-03276 (D.N.J. 2008);

3. United States v. Kane Cty., No. 1:07-CV-0451 (N.D. Ill. 2007);

4. United States v. City of Philadelphia, No. 2:06-CV-4592 (E.D. Pa. 2006); and

5. United States v. City of Springfield, No. 3:06-CV-30123 (D. Mass. 2006).

Source: DOJ Response to USCCR Interrogatory No. 29, at 6; Internal Legal Research.

1465 See Discussion and Sources cited in Chapter 3, Accessibility Issues for Voters with Disabilities. 1466 See Sources cited at note 1468, supra. 
262 An Assessment of Minority Voting Rights Access

Figure 28: DOJ Section 208 Right to Assistance Cases Brought Since the

2006 VRA Reauthorization

Source: DOJ Responses to USCCR Interrogatories1467

The Commission also notes that there have been no DOJ actions to enforce the VRA right to

assistance since the Shelby County decision.

During the national briefing, the Commission heard testimony from AALDEF’s Jerry Vattamala

about the need to protect the right to assistance for LEP voters to assistors.1468 This testimony was

echoed by written testimony received from NALEO, detailing examples of North Carolina election

officials who were unaware of the VRA’s right to assistance and interfered with LEP voters’ rights

to receive it.1469 Furthermore, NDRN’s Michelle Bishop testified about and submitted a postbriefing statement regarding the need for DOJ to enforce Section 208 for voters with

disabilities.1470 Although beyond the scope of this report, the Commission notes that the DOJ has

undertaken efforts to enforce the protections of the ADA for voters with disabilities.1471

 

1467 See cases listed in note 1464, supra. 1468 Briefing Transcript, supra note 234, at 225-26 (statement by Jerry Vattamala); see also Vattamala, Written 

Testimony, supra note 454, at 10 (discussing Section 208 of the VRA). 1469 NALEO, Written Testimony for the U.S. Comm’n on Civil Rights, for the record of Voting Rights Briefing, 

North Carolina (Feb. 2, 2018), at 1. During the public comment period of the Commission’s national briefing, 

Eliazar Posada also stated that growing up in south Texas, his mother was never advised of her right to receive 

assistance to vote in Spanish, despite the fact that his mother visibly struggled to understand the ballot and voting 

process. See Briefing Transcript, supra note 234, at 299-301 (statement by Eliazar Posada). 1470 See Discussion and Sources cited in Chapter 3, Accessibility for Voters with Disabilities, at notes 1174-77, 

supra. 1471 The DOJ provided information about launching the ADA Voting Initiative and reaching settlement agreements 

with jurisdictions “to ensure that people with disabilities can access and use all their voting facilities.” The most 

recent agreements were in Coconino County, Arizona (2018); Monroe County, Illinois (2018); Isabella County, 

Michigan (2017); Chicago, Illinois (2017); Chesapeake, Virginia (2017); and Richland County, South Carolina 

(2017). 

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Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 263

Amici & Statements of Interest

DOJ filed 27 amicus briefs and Statements of Interest since the 2006 VRA Reauthorization.1472

Due to the significant expertise and resources of the DOJ, these briefs can be influential.1473

 

1472 These are:

1. OCA-Greater Houston v. Texas, No. 16-51126 (5th Cir. 2017) (Section 208) (in a formerly covered state (TX); see

Jurisdictions Previously Covered Under Section 5, https://www.justice.gov/crt/jurisdictions-previously-coveredsection-5);

2. McCrory v. Harris, No. 15-1262 (S. Ct. 2016) (redistricting) (formerly covered (NC));

3. Bethune-Hill v. Virginia State Bd. Elections, No. 15-680 (S. Ct. 2016) (redistricting) (formerly covered (VA));

4. Brakebill v. Jaeger, No. 1:16-CV-00008 (D.N.D. 2016) (voter ID);

5. Wittman v. Pesonhuballah, No. 14-1504 (S. Ct. 2016) (Virginia redistricting) (formerly covered);

6. Sanchez v. Cegavske, No. 3:16-CV-00523 (D. Nev. 2016) (NVRA, Section 5);

7. Greater Birmingham Ministries v. Alabama, No. 2:15-CV-02193 (N.D. Ala. 2016) (voter ID) (formerly covered);

8. Poor Bear v. Jackson Cty., No. 5:14-CV-05059 (D.S.D. 2016) (insufficient polling locations);

9. Harris v. Arizona Indep. Redistricting Comm., No. 14-232 (S. Ct. 2015) (redistricting) (formerly covered (AZ));

10. Evenwel v. Abbott, No. 14-940 (S. Ct. 2015) (redistricting metrics; one-person/one-vote) (formerly covered (TX));

11. Ohio NAACP v. DeWine, No. 14-3877 (6th Cir. 2014) (cuts to early voting);

12. Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conf. v. Alabama, Nos. 13-895 and 13-

1138 (S. Ct. 2014) (redistricting) (formerly covered (AL));

13. Frank v. Walker and League of United Latin Am. Citizens v. Deininger, Nos. 14-2058 and 14-2059 (7th Cir. 2014) 

(voter ID) (formerly covered (TX));

14. Montes v. City of Yakima, No. 2:12-CV-03108 (E.D. Wash. 2014) (vote dilution);

15. Ohio State Conference of The Nat. Ass’n For The Advancement of Colored People v. Husted, No. 2:14-CV-00404 

(S.D. Ohio 2014) (cuts to early voting);

16. Toyukak v. Treadwell, No. 3:13-CV-00137 (D. Alaska 2014) (formerly covered (AK));

17. Mark Wandering Med. v. McCulloch, No. 1:12-CV-00135 (D. Mt. 2012 and 2014) (insufficient polling places) (2 

Statement of Interests filed; one pre-Shelby County (Oct. 2, 2012) and one post-Shelby County (April 25, 2014));

18. Mi Familia Vota v. Detzner, No. 812-CV-01294 (M.D. Fla. 2012) (voter purge) (formerly covered (FL));

19. Samuelson v. Treadwell, No. 3:12-CV-00118 (D. Alaska 2012) (formerly covered (AK));

20. Petteway v. Galveston Cty., No. 3:11-CV-00511 (S.D. Tex. 2012) (formerly covered (TX));

21. Perez v. Perry, No. 5:11-CV-00360 (W.D. Tex. 2011, 2012, 2013); Nos. 11-713, 11-714, and 11-715 (S. Ct. 2011) 

(redistricting) (formerly covered (TX));

22. State of Florida v. United States, No. 4:12-MC-00003 (N.D. Fla. 2012) (cuts to early voting) (formerly covered 

(FL));

23. Lepak v. City of Irving, No. 3:10-CV-00277 (N.D. Tex. 2010); No. 11-101094 (5th Cir. 2011) (vote dilution) 

(formerly covered (TX));

24. Simmons v. Galvin, No. 09-920 (S. Ct. 2010) (felony disenfranchisement in Massachusetts);

25. Pérez-Santiago v. Volusia Cty., No. 6:08-CV-01868 (M.D. Fla. 2009) (Section 4(e));

26. Morales v. Handel, No. 1:08-CV-03172 (N.D. Ga. 2008, 2009) (documentary proof of citizenship) (formerly 

covered (GA)); and

27. Myers v. City of McComb, No. 3:05-CV-00481 (S.D. Miss. 2007) (formerly covered (MS)).

Source: DOJ Response to USCCR Interrogatory No. 32 (with case descriptions based on internal research). 

Commission staff notes that other voting cases in which the DOJ filed a Statement of Interest were listed on the 

Voting Section website, but left off the list of cases sent in response to USCCR Interrogatories, which in turn 

included other cases not on the Voting Section website. See U.S. Dep’t of Justice, Voting Section Litigation, 

Amicus Briefs and Statements of Interest, https://www.justice.gov/crt/voting-section-litigation (listing for 

example: N. Carolina NAACP v. North Carolina State Bd. Elections, No. 1:16-CV-1274 (M.D.N.C. 2016), 

https://www.justice.gov/crt/case-document/nc-naacp-v-nc-st-bd-elections (DOJ Statement of Interest regarding 
264 An Assessment of Minority Voting Rights Access

Statements of interests are powerful tools used by the DOJ to explain the interests of the United

States to the court and to clarify and interpret the law.1474 Moreover, eight of the 27 (29.6 percent)

were filed with the Supreme Court, where the most precedential, impactful cases are generally

decided.1475 The following chart illustrates the level of DOJ efforts in this regard in recent years.

Figure 29: DOJ Amicus Briefs and Statements of Interest, 2006-2018

Source: DOJ Responses to USCCR Interrogatories1476

This is an area in which the DOJ activity evidences ongoing voting challenges in the post-Shelby

County era.

Testimony Regarding DOJ Performance and Priorities

During its national briefing, the Commission received expert testimony lamenting the low rate of

DOJ enforcement of the remaining provisions of the VRA in the post-Shelby County era, especially

considering DOJ’s decreasing workload under Section 5. On the other hand, the Commission also

 

discriminatory voter challenges); A. Philip Randolph Inst. v. Husted, 2:16-CV-303 (S.D. Ohio 2016), 

https://www.justice.gov/crt/case-document/si-randolph-institute-v-husted (Statement of Interest against removal 

of voters for inactivity)). 

1473 See Victor Zapanta, The Statement of Interest as a Tool in Federal Civil Rights Enforcement, HARV. C.R.-C.L.

L. REV. 227, 228 (2017). 1474 Id. at 228. 1475 Id. 1476 DOJ Response to USCCR Interrogatory No. 32.

0

1

2

3

4

5

6

7

8

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 265

heard testimony stating that the decreased level of DOJ VRA litigation was a sign that conditions

had improved, while another panelist sharply criticized the DOJ for misusing its resources.

Former DOJ Voting Section Deputy Chief Gerry Hebert, who has litigated over 100 voting rights

cases, submitted written testimony stating that,

In the best of circumstances, the Department would have used all of the resources

previously allocated to Section 5 preclearance to create robust enforcement under

Section 2 . . . Without the protection of preclearance, states and localities have

enacted discriminatory voting laws at a frightening rate, but the Department simply

has been unwilling or unable to police them.1477

Hebert added: “I was asked to discuss my suggestion of best practices for the Department of Justice

in bringing VRA claims. My suggestion is simply this: bring them.”1478

These sentiments were echoed by Ezra Rosenberg, who testified that his organization, with much

more limited resources than the DOJ, was doing more to enforce the VRA than the DOJ:

Since Shelby [County], the Department of Justice has filed three suits against

jurisdictions regarding voting changes that would have required preclearance under

Section 5. By way of comparison, the Lawyers’ Committee for Civil Rights Under

Law, which has a fraction of the resources of the Department, has filed five such

suits. Of even greater concern is that since January 20, 2017, the Department has

not filed a single suit under the Voting Rights Act. Again, by way of comparison,

the Lawyers’ Committee for Civil Rights Under Law has filed three lawsuits during

that same period, adding to an existing case docket of five other Section 2 cases

filed since November 2015. Two of the Section 2 cases filed by the Lawyers’

Committee for Civil Rights Under Law, one of which was filed this year, settled

relatively quickly with the establishment of majority-minority election districts in

Emanuel County, Georgia and Jones County, North Carolina, demonstrating how

vigilant enforcement of the voting rights laws can lead to immediate relief for

minority populations.1479

As discussed above, ACLU’s Dale Ho succinctly noted that his organization is counsel in five of

the successful post-Shelby County Section 2 cases, whereas the DOJ, “with its considerable

resources,” has been counsel in only four.1480 When asked if private groups like the ACLU have

similar resources to the DOJ, Ho answered:

 

1477 J. Gerald Hebert, Senior Director, Voting Rights and Redistricting, Campaign Legal Center, Written Testimony 

for the U.S. Comm’n on Civil Rights, at 3-4 (internal citation omitted). 1478 Id. at 6. 1479 Rosenberg, Written Testimony, supra note 651, at 4-5 (citing cases) (some emphasis added). 1480 Ho, Written Testimony, supra note 446, at 12 (citing cases).
266 An Assessment of Minority Voting Rights Access

Not at all—[v]oting rights cases are very expensive. We’ve heard this numerous

times. Particularly Section 2 require[s] testimony from multiple experts. These

cases easily run into six figures in terms of expert expenses, so for a private citizen

to bear that cost, it’s essentially impossible. For that to happen the private

organizations like the ACLU, like the NAACP, Legal Defense Fund, [and] NARF,

can bring some cases but we do not have the resources either in terms of the

financial resources or the personnel power that the Department of Justice does and

I think it speaks volumes in terms of how aggressive DOJ has been in protecting

voting rights when an organization like mine has brought four more Section 2 cases

than DOJ has in the last five years.1481

NARF’s Natalie Landreth expressed deep concern that “the DOJ has not brought a case on behalf

of Native Americans in almost 20 years.”1482 And regarding the resources of the DOJ, Professor

Levitt testified that:

Private attorneys may also enforce the provisions of the Voting Rights Act and

other statutes designed to combat racial and ethnic discrimination in the election

process, but at most a handful of attorneys within any given state, and a handful of

national organizations with a few voting rights specialists, can match the

institutional expertise of the Department of Justice. Perhaps none can match the

Department’s resources. Data-intensive caseslike voting rights cases also often rely

heavily on the analysis of expert witnesses, whose time is also limited. Private

entities with developed expertise in voting rights litigation may be able to muster a

challenge to at most a few policies at a time, and often no more than one. They

could not be expected to deliver justice everywhere that it was warranted even in a

regime with the deterrence of preclearance, much less in a new world without.1483

On the other hand, some advocates believe that the lack of enforcement is either a symptom of

management or competency issues in the DOJ Voting Section, or a sign that current conditions do

not evidence ongoing discrimination in voting. The Commission received testimony from former

Voting Section Attorney Christian Adams with his opinion. Adams testified that:

Many argue that after Shelby [County], state election laws that violate the Voting

Rights Act were passed suddenly by state legislatures in a conspiratorial effort to

block minority voting. Yet, inexplicably, the Department of Justice dramatically

reduced enforcement activity under Section 2 and 203 of the Voting Rights Act

after January 20, 2009. If it was such a target rich environment, why wasn’t the

Department of Justice shooting at targets. Resource issues are a fake excuse. The

Voting Section had excess capacity and lawyers who were idling with no work.

Indeed, I brought one of the last cases the Department filed to challenge at-large

elections in a jurisdiction—almost a decade ago.1484

 

1481 Briefing Transcript, supra note 234, at 195-96 (statement by Dale Ho). 1482 Landreth, Written Testimony, supra note 1099, at 2. 1483 Levitt, Written Testimony, supra note at 304, at 12-13 (citations omitted). 1484 Adams, Written Testimony, supra note 669, at 5.
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 267

Similarly, former DOJ official Hans von Spakovsky believes that the Shelby County decision did

not impact enforcement trends. He testified that:

A review of the litigation record of the Voting Section during the administrations

of George W. Bush and Barack Obama shows a sharp, overall downward trends in

the number of enforcement actions filed by the Justice Department under the

various provisions of the VRA from 2001 to 2016, including after 2013, the year

of the Shelby County was decided.1485

The above data are consistent with this observation, but the downward trend in VRA litigation by

the DOJ may be due to other factors.

The data in this report show a high level of recent, successful Section 2 cases brought by private

parties, and an overall trend of discrimination in voting continuing during recent years.1486 This

data could also indicate that DOJ was much more effective when preclearance was in place, prior

to Shelby County. Although Section 2 cases have been decreasing, prior to Shelby County, the DOJ

was effective in stopping discrimination in voting through its objections under Section 5, and

through active Section 5 enforcement actions in federal court.1487

Still, the above data show that DOJ’s overall enforcement of VRA Section 2, the language access

provisions, and Section 208’s guarantees of right to assistance, has been decreasing since 2008.

Section 2 litigation was brought immediately after Shelby County in North Carolina, and in three

cases in Texas (although there has been a change of position in Texas). Nonetheless, a current or

past lack of performance in bringing VRA cases does not mean that the DOJ should not now or in

the future be more actively addressing ongoing discrimination in voting.

The Commission’s SAC reports and recommendations regarding voting rights underscore this

need for DOJ to do more voting rights enforcement work. For example, the Commission’s Kansas

SAC recommended that the Commission advise DOJ to review the state’s documentary proof of

citizenship act, following concerns about the lawfulness of that act raised in the Kansas SAC

review. The Kansas and Illinois SACs also both asked the Commission to advise DOJ to analyze

each state’s respective implementation of the the HAVA, the NVRA, and VRA.1488 The Alaska

SAC recommended that the Commission ask DOJ to enforce Section 203 and send federal

observers to Alaska.1489

 

1485 von Spakovsky, Written Testimony, supra note 325, at 2-3. 1486 See Discussion and Sources cited at Figure 26 (relatively higher level of private Section 2 cases); U.S. Dep’t of 

Justice, Civil Rights Division, Voting Section Litigation, https://www.justice.gov/crt/voting-section-litigation (high 

level of VRA enforcement, especially in Section 2 cases, in the 1980s and 1990s) (last updated Dec. 4, 2017); 

Chapter 3, supra (overall trend of restrictions that negatively impact minority voters). 1487 See Discussion and Sources cited at notes 1385-1400, supra (Section 5 objections and litigation since the 2006 

VRA Reauthorization).

1488 See Summaries of Kansas and Illinois State Advisory Committee reports, Appendix D. 1489 Advisory Memorandrum, The Alaska Advisory Committee to the U.S. Comm’n on Civil Rights (Mar. 27, 2018), 

http://www.usccr.gov/pubs/2018/05-25-AK-Voting-Rights.pdf.
268 An Assessment of Minority Voting Rights Access

The Role of Federal Election Observers and Monitors

This Section summarizes and analyzes testimony and evidence gathered regarding the role of

federal observers and monitors in the 2016 Presidential Election, which was the first presidential

election held since the Shelby County decision. Since the enactment of the VRA in 1965, the DOJ

has been able to monitor elections in several ways. First, they can send their own personnel to

monitor elections, and if the local jurisdiction agrees, they may be able to enter the polls—but

entering the polls depends on the consent of the local jurisdiction. Second, the VRA clearly permits

the Attorney General to certify the sending of federal observers to monitor elections inside the

polls, in the formerly covered jurisdictions. Third, the DOJ must send federal observers if a court

so orders.

1490 In many instances, court orders for observers were the result of consent decrees.1491

The use of federal observers has been an important tool in protecting minority voting rights. As

Representative John Lewis wrote in 2005, the ability of the Attorney General to send federal

observers to jurisdictions with a history of discrimination in voting has been “essential to curtailing

discrimination.”1492 Observers have been frequently sent to states in the South such as Mississippi,

where their presence reportedly curbed discrimination in voting.1493 Federal observer deployment

was a key VRA provision repeatedly reauthorized by Congress and signed into law by Republican

presidents since 1965.1494

Under Section 8 of the VRA, federal observers could be sent to all formerly covered jurisdictions

when the Attorney General certified the need according to the statutory standards.

1495 Observers

 

1490 See, e.g., DOJ Fact Sheet, supra note 12 (regarding monitors); see also 52 U.S.C. § 10305(a) (regarding 

observers).

1491 See Discussion and Sources cited at notes 135-37 and 324-28, supra (regarding judicial preclearance and ability 

to order observers under Section 3 of the VRA; and discussing related DOJ Consent Decrees). 1492 Rep. John Lewis, “The Voting Rights Act: Ensuring Dignity and Democracy,” Human Rights Magazine, Vol. 

32, No. 2 (2005), 

https://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol32_2005/spring2005/hr

_spring05_act.html. 1493 Tony Pugh, Change to Voting Rights Act Makes It Harder to Monitor U.S. Election, MCCLATCHY, Oct. 21, 

2016, http://www.mcclatchydc.com/news/politics-government/election/article109642487.html. (“In recent years, 

local Mississippi elections have been a frequent target of that Justice Department scrutiny. From June 2009 to 

September 2013 the department sent election observers to 31 jurisdictions in the state following complaints of 

possible discrimination . . . . ‘To know the tricks that have been played here in Mississippi—for instance, people 

posing as federal agents and asking individuals to identify themselves, challenging voters’ eligibility and using 

intimidation tactics to dissuade individuals from voting. This causes me a lot of concern that we won’t have the kind 

of backup that’s desperately needed’ from the observers, said Constance Slaughter-Harvey, a Democrat who served 

as Mississippi’s assistant secretary of state for elections from 1984 to 1996.”)

1494 See Discussion and Sources at notes 135-36, 181 and 1699. 1495 52 U.S.C. § 10305(a)(2) of the VRA provides that: “Whenever—

1. a court has authorized the appointment of observers under section 10302(a) of this title for a political subdivision; or

2. the Attorney General certifies with respect to any political subdivision named in, or included within the scope of, 

determinations made under section 10303(b) . . . that—
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 269

could also be sent under federal court orders in cases where there are findings of repeated,

intentional discrimination, or through Consent Decrees.

1496 Moreover, under the clear statutory

language of the VRA, federal observers could enter the polls:

Observers shall be authorized to—(1) enter and attend at any place for holding an

election in such subdivision for the purpose of observing whether persons who are

entitled to vote are being permitted to vote; and (2) enter and attend at any place for

tabulating the votes cast at any election held in such subdivision for the purpose of

observing whether votes cast by persons entitled to vote are being properly

tabulated.1497

Although the Shelby County decision did not directly address the issue of federal observers, DOJ

has interpreted Shelby County to mean that DOJ may no longer deploy federal observers to the

jurisdictions formerly covered under Section 5, except under the limited circumstances of a court

order.1498 The Fact Sheet that DOJ issued after the Shelby County decision set forth its

 

(A) the Attorney General has received written meritorious complaints from residents, elected officials, or civic 

participation organizations that efforts to deny or abridge the right to vote under the color of law on account of race 

or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title are likely to occur; or

(B) in the Attorney General’s judgment (considering, among other factors, whether the ratio of nonwhite persons to 

white persons registered to vote within such subdivision appears to the Attorney General to be reasonably 

attributable to violations of the 14th or 15th amendment or whether substantial evidence exists that bona fide efforts 

are being made within such subdivision to comply with the 14th or 15th amendment), the assignment of observers is 

otherwise necessary to enforce the guarantees of the 14th or 15th amendment;

the Director of the Office of Personnel Management shall assign as many observers for such subdivision as the 

Director may deem appropriate.”

1496 See Discussion of Judicial Preclearance and Sources cited therein at notes 380-83, supra (noting that judicial 

orders regarding preclearance and observers are subject to the statutory language of Section 3 of the VRA, requiring 

intentional discrimination, and that federal courts have been reticent to order remedies under Section 3, with the 

exception of those agreed to in Consent Decrees); see also U.S. Dep’t of Justice, Civil Rights Division, About 

Federal Observers and Election Monitoring, https://www.justice.gov/crt/about-federal-observers-and-electionmonitoring (last updated Mar. 15, 2017); 52 U.S.C.§ 10302(a). Proceeding to enforce the right to vote, 

Authorization by court for appointment of Federal observers:

Whenever the Attorney General or an aggrieved person institutes a proceeding under any statute to enforce the 

voting guarantees of the 14th or 15th amendment in any State or political subdivision the court shall authorize the 

appointment of Federal observers by the Director of the Office of Personnel Management in accordance with 

section 1973d 1 of title 42 to serve for such period of time and for such political subdivisions as the court shall 

determine is appropriate to enforce the voting guarantees of the 14th or 15th amendment (1) as part of any 

interlocutory order if the court determines that the appointment of such observers is necessary to enforce such 

voting guarantees or (2) as part of any final judgment if the court finds that violations of the 14th or 15th

amendment justifying equitable relief have occurred in such State or subdivision: Provided, That the court need 

not authorize the appointment of observers if any incidents of denial or abridgement of the right to vote on 

account of race or color, or in contravention of the voting guarantees set forth in section 10303(f)(2) of this title 

(1) have been few in number and have been promptly and effectively corrected by State or local action, (2) the 

continuing effect of such incidents has been eliminated, and (3) there is no reasonable probability of their 

recurrence in the future.

1497 52 U.S.C. § 10305(d). 1498 DOJ Fact Sheet, supra note 12. 
270 An Assessment of Minority Voting Rights Access

determination that federal observers may no longer be sent by the Attorney General to monitor

elections inside the polls in previously covered jurisdictions.1499 DOJ explained that when it sent

observers to the formerly covered jurisdictions, it did so “based in part on the Section 4(b)

[preclearance] coverage formula. In light of the Shelby [County] decision, the department is not

relying on the Section 4(b) coverage formula as a way to identify jurisdictions for election

monitoring.”1500

It is at least arguable that DOJ has been overly cautious in determining the strictures of Shelby

County. Writing for the majority of the Supreme Court, Chief Justice Roberts stated that: "Our

decision in no way affects the permanent, nationwide ban on racial discrimination in voting found

in § 2. We issue no holding on § 5 itself, only on the coverage formula.”1501 Under this precedent,

the provisions of the VRA regarding observers could be considered one of the remaining

provisions, as the language of Shelby County is limited to “the coverage formula,” in relation to

Section 5,1502 while observers fall under Section 8.1503

On the other hand, the certification required to send observers could be implicitly dependent on

what Justice Roberts termed “the coverage formula.”1504 Section 8 of the VRA states that the

“assignment” of observers is permitted: “whenever . . . the Attorney General certifies with respect

to any political subdivision named in, or included within the scope of, determinations made

under Section 10303(b) [originally Section 4(b)] of this title,” that they have received “meritorious

complaints” showing that discrimination in voting is likely to occur, or if “in the Attorney

General’s judgement the assignment of observers is otherwise necessary to enforce the guarantees

of the 14th or 15th amendment[.]”1505 The DOJ’s post-Shelby County Fact Sheet stating that the

use of observers was “based in part on the Section 4(b) [preclearance] coverage formula”

referencesthisstatutory language. However, the fact that the precise language of the Shelby County

decision only struck down the “coverage formula” in relation to Section 5 demonstrates that it the

DOJ may be avoiding risk by interpreting Shelby County cautiously, because the Court did not

strike down the observer provisions of the VRA.1506

The DOJ has been able to and can continue to send its own staff to monitor elections, but they can

only enter the polls if they have permission from the local jurisdiction. DOJ informed the

Commission that: “In most instances, the Department has continued to work very successfully and

productively with election officials as part of this [election] monitoring work [by Department

 

1499 See Discussion and Sources cited in Chapter 2, at notes 301-07, supra. 1500 DOJ Fact Sheet, supra note 12, at 1. 1501 Shelby Cty., 570 U.S. at 557. 1502 Id. 1503 52 U.S.C. § 10305(a)(2) (Section 8, regarding observers); Cf. 52 U.S.C. § 10304 (Section 5, regarding 

preclearance of voting changes).

1504 Shelby Cty., 570 U.S. at 546. 1505 52 U.S.C. § 10305(a)(2). 1506 See Discussion and Sources cited at note 297 (quoting the precise holding of Shelby County), supra.
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 271

attorney and non-attorney staff]. The Department’s monitoring work remains a very useful aspect

of its overall enforcement program.”1507

The figure below details how the number of federal observers and monitors has changed

since 2006.1508

Figure 30: DOJ Election Monitoring—Federal Observers and Department Staff

Fiscal Year 2006 to Fiscal Year 2017

Source: DOJ Responses to USCCR Interrogatories1509

 

1507 Correspondence from DOJ, at 11. 1508 DOJ Responses to USCCR Interrogatories 12 and 13.

1509 Id.

0

100

200

300

400

500

600

700

800

900

1000

FY2006 FY2007 FY2008 FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016 FY2017

OPM Federal Observers DOJ Staff Election Monitors
272 An Assessment of Minority Voting Rights Access

Figure 31: Total (OPM Federal Observers & DOJ Staff Election Monitors), 2006-2017

Source: DOJ Responses to USCCR Interrogatories1510

Appendices G and H of this report provide charts and information about the jurisdictions where

federal observers and election monitors were placed since 2006.

The above data demonstrate a sharp decline immediately after the 2013 Shelby County decision,

in both the federal observer and election monitoring programs. While the Department sent over

780 federal observers and 259 election monitors to 51 jurisdictions in 23 states in 2012,

1511 by

2014, DOJ “conduct[ed] in-person monitoring of polling place activities” in only 28 jurisdictions

in 18 states.

1512 From 2012 to 2014, the number of federal observers decreased by 592 and the

number of election monitors decreased by 204. The number of election monitors increased since

then, but it did not rise to the level of previous presidential elections during the earlier part of the

time period studied. Moreover, the totals in the above chart show that when taking into account

the decline in observers, between 2006 and 2017, the overall number of federal personnel at the

polls declined by 45.2 percent.

 

1510 Id.

1511 U.S. Dep’t of Justice, Justice Department to Monitor Polls in 23 States on Election Day, Nov. 2, 2012, 

https://www.justice.gov/opa/pr/justice-department-monitor-polls-23-states-election-day. 1512 U.S. Dep’t of Justice, Justice Department Announces On-the-Ground Monitoring at Polling Places in 18 States 

on Election Day, Nov. 3, 2014, https://www.justice.gov/opa/pr/justice-department-announces-ground-monitoringpolling-places-18-states-election-day-0.

0

100

200

300

400

500

600

700

800

900

1,000

1,100

1,200

1,300

1,400

1,500
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 273

The Commission received testimony from former DOJ official Vanita Gupta concerning the

difference between federal observing and election monitoring. Gupta explained that “observers

were allocated in significant numbers pursuant to the Section 4b [preclearance] formula and had

much greater power to be inside of the polling site in ways that the monitors are not.”1513 In

addition, according to Gupta, there was a specific stream of funding for a high number of observers

in all of the polling sites covered by preclearance.1514 She also testified that when the DOJ was

making decisions about the allocation of election monitors in 2016, the Department chose to send

hundreds fewer DOJ trained monitors, who could only be outside of the polls, to polling places

during that election. She believes that this diminished number of monitors grossly inhibited the

kind of information and evidence collection that can happen when monitors are not allowed to be

physically inside of polling sites to observe ways in which voters might be unlawfully challenged

to exercise their right to vote.1515 Moreover, the decrease in observers has had a dramatic negative

consequence on DOJ’s ability to collect evidence and bring some VRA cases.1516

Similarly, LDF’s Sherrilyn Ifill stated that election monitors are not a substitute for federal

observers because observers are in a unique position to identify barriers to voting that violate

federal voting rights laws, as they are able to gain a first-hand observation of the implementation

of voting procedures and overall treatment of voters inside polling places.1517 However, Ifill added

that the Department should still deploy monitors to help protect against voting rights violations.1518

Two Views of DOJ’s Observers Deployment Power Post-Shelby County

In addition to the legal dilemma discussed above about whether DOJ was required to stop sending

observers in formerly covered jurisdictions,1519 there are two main bodies of thought regarding the

Justice Department’s decision to interpret Shelby County as meaning it can no longer send

observers to the formerly covered jurisdictions. The first is that federal observers are costly and

unnecessary because the rate of reports of discriminatory actions has decreased. The second school

of thought argues that federal observers are integral to preventing discrimination at the polls, that

Shelby County did not require them to be restricted, and that observers should continue to be

deployed in full force to election polling places.

One set of arguments is that observers might not be necessary since the Shelby County decision

has had little impact on the Department’s enforcement strategies, and because evidence of

discrimination has decreased. Former DOJ official Hans von Spakovsky said that this was because

 

1513 Briefing Transcript, supra note 234, at 43 (statement by Vanita Gupta). 1514 Id. at 44-45. 1515 Id. at 45. 1516 Id. 1517 Sherrilyn Ifill, Supplemental Written Testimony for the U.S. Commission on Civil Rights, Mar. 22, 2018, at 1. 1518 Id. 1519 See Discussion and Sources cited at notes 1498-1506, supra.
274 An Assessment of Minority Voting Rights Access

“widespread discrimination” against African-American voters in the U.S. has “long since

disappeared.”1520

An opposing argument about the value of federal observers inside polling locations is that

observers “serve as the eyes and ears of the Justice Department” and are therefore

indispensable.1521 Voting rights expert James Tucker believes that federal observers are “critical”

to eliminate disenfranchisement and that they can help to “prevent” and “remedy” voting

discrimination.1522 Tucker has argued that even if federal observers do not directly deter

discrimination from occurring at the polls, the information that they gather and their first-hand

accounts are used by the DOJ to retroactively end discrimination.1523

During the Commission’s national briefing, other former DOJ officials disagreed. Vanita Gupta

testified that the lack of observers “had a very significant impact on the ability to gather evidence

of problems, particularly in Section 203 and 208 cases, which often depend on direct observations”

of activity at poll sites on Election Day.1524 Also during the national briefing, Justin Levitt argued

that the Shelby County decision made it “significantly more difficult” for the federal government

to monitor the polls and collect evidence of discriminatory actions.1525 Levitt believes that

observers are one of the DOJ’s “best sources of firsthand information” about on-the-ground

compliance with Section 2 of the VRA.

1526 He strongly believes that Congress should restore the

observer process to reinstate this important mechanism to defending against discrimination in

voting.

Additionally, NARF’s Natalie Landreth of told the Commission that federal observers provide

“unparalleled” first-hand information about the realities of actions at the polls, and that they have

a “prophylactic effect.”1527 She said that observers are “critically important,” supporting the

arguments of Gupta, Ho, Levitt, and others.1528 Describing the intersection of observers with

enforcing the VRA, Landreth also argued that the DOJ assigned federal observers to Alaska who

have had a positive impact on the state, but failed to intervene in NARF’s cases to enforce language

access any time between 2006 and 2010.

1529 In 2013, for the first time, the DOJ clarified the law

under Section 203 and ruled that if voting materials were in English they must be in the covered

languages.1530 This change resulted in voter turnout increases in many Alaska Native villages that

ranged from increases of 8 to 22 percent.

1531 Landreth testified that after Shelby County, all of the

 

1520 von Spakovsky, Written Testimony, supra note 325, at 6. 1521 James Thomas Tucker, The Power of Observation: The Role of Federal Observers Under the Voting Rights Act,

13 MICH. J. OF RACE & LAW, 223, 233 (2007). 1522 Id. at 275. 1523 Id. at 231. 1524 Briefing Transcript, supra note 234, at 25 (statement by Vanita Gupta). 1525 Levitt, Written Testimony, supra note 304, at 15. 1526 Id. at 16. 1527 Landreth, Written Testimony, supra note 1099, at 3. 1528 Id. 1529 Id. at 2-3. 1530 Id. at 3. 1531 Id. at 4. 
Chapter 5: Evaluation of DOJ’s Enforcement Efforts Since 2006 275

work done to enforce language access became more difficult, due in part to the DOJ no longer

sending observers. She added that, “Preclearance was the only way to protect voters.”1532

AALDEF’s Jerry Vattamala agreed that observers play a critical role in enforcing the VRA. He

also advocated for “statutory authority” that would empower the DOJ to continue to send observers

to specific jurisdictions to enforce the language minority provisions of the VRA.1533 These experts

all believe that it is necessary to deploy federal observers to polling places during federal elections,

to deter possible discriminatory actions.

Independent reporting also stressed that DOJ’s sending observers to only five states during the

2016 presidential election was concerning because 17 states had tightened voting restrictions.1534

Reuters reported that the 2016 presidential election observer deployment was “among the smallest

deployments since the Voting Rights Act was passed in 1965 to end racial discrimination at the

ballot box.”1535 Gerry Hebert told Reuters that relying on DOJ personnel (rather than observers) to

monitor elections is “a far cry” from deploying federal observers who are statutorily authorized to

be inside the polling place.1536 Former Deputy Assistant Attorney General Anita Earls also

explained to Reuters that federal observers being stationed inside polling places makes them “more

effective than Justice Department staff at catching voter suppression.”1537

Summary of Current Conditions

In sum, this chapter demonstrates that not only have Section 5 preclearance procedures halted, but

also that DOJ VRA enforcement actions, including affirmative litigation of other provisions of the

VRA protecting minority voting rights, as well as sending observers and election monitors, have

generally declined during the time period studied, particularly since the Shelby County decision.

Data from Chapter 3 showed that current conditions include new types of potentially

discriminatory voting practices arising in various states across the nation, and Chapter 4 showed

ongoing discrimination in voting through an increasing number of successful Section 2 cases

brought by private groups’ litigation on behalf of impacted minority voters. Both Chapters 3 and

4 showed an over-concentration of these trends in the jurisdictions formerly covered for

preclearance under Section 5.1538

The totality of this report shows that despite the DOJ’s diminishing enforcement actions, there is

ongoing discrimination in voting that would merit increased VRA enforcement on the part of the

DOJ. The report also provides data to consider in any debate about whether and how preclearance

procedures could be restructured to protect minority voting rights based on current conditions.

 

1532 Briefing Transcript, supra note 234, at 280 (statement by Natalie Landreth). 1533 Vattamala, Written Testimony, supra note 454, at 10. 1534 See Julia Harte, Exclusive: U.S. Curtails Federal Election Observers, REUTERS (July 17, 2016), 

https://www.reuters.com/article/us-usa-election-voting-observers-exclusi/exclusive-u-s-curtails-federal-electionobservers-idUSKCN0ZX0QR (quoting Dale Ho). 1535 Id. 1536 Id. 1537 Id. 1538 See Appendix E: Charts of Voting Rights Issues by State, Comparing Formerly Covered with Noncovered 

Jurisdictions; and Table 12: Successful Post-Shelby County Section 2 Cases. 
276 An Assessment of Minority Voting Rights Access

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Chapter 6: Findings and Recommendations 277

CHAPTER 6: FINDINGS AND RECOMMENDATIONS 

After reviewing the testimony and briefing materials the Commission received in the course of

this investigation, the Commission makes the following findings and recommendations:

FINDINGS

Access to the Ballot

x The right to vote is the bedrock of American democracy. It is, however, a right that has 

proven fragile and in need of both Constitutional and robust statutory protections. Racial 

discrimination in voting has proven to be a particularly pernicious and enduring American 

problem. Voter access issues, discrimination, and barriers to equal access for voters with 

disabilities and for voters with limited-English proficiency continue today.

x For nearly one hundred years after the passage of the Reconstruction Amendments, racial 

discrimination in voting became deeply embedded in many parts of the country. The 

federal government only began to successfully address flagrant voting discrimination once 

the Voting Rights Act of 1965 (VRA) was passed. Earlier legislative measures proved 

inadequate.

x In 1975, Congress amended the VRA to increase protection for language minorities who 

are Asian American, Latino, Alaska Native, and American Indian, finding that denial of 

the right to vote of such minority group citizens is ordinarily directly related to high 

illiteracy.

x The VRA works to dislodge and deter the construction of barriers by state and local 

jurisdictions that block or abridge the right to vote of minority citizens.

x The VRA is necessary to protect minority populations across the nation but different 

provisions play a special role in certain parts of the nation—for example, some 

communities substantially rely on limited-English proficiency protections, while other 

communities rely primarily upon the other VRA provisions to prevent jurisdictions from 

enforcing discriminatory voting changes.

Ongoing Voting Discrimination

x In Shelby County, the Supreme Court acknowledged ongoing voting discrimination and 

noted that Congress may draft new coverage criteria for preclearance based on current 

conditions that does not treat states unequally based on past conditions of discrimination.

x Voting discrimination continues to be more concentrated and persistent in some states and 

jurisdictions than in others.

o Some jurisdictions have been found to use racially polarized voting patterns to 

fashion laws and procedures to adversely affect minority voters and weaken the 

impact of their votes.

x Overall voter turnout is most strongly correlated with factors unrelated to voting 

procedures, such as the competitiveness of elections, attractiveness of candidates, 

campaign spending, community investment in voter registration and get out the vote 

efforts, and the population’s education levels. Accordingly, while voter turnout may be one 
278 An Assessment of Minority Voting Rights Access

measure of voter access, an increase in turnout should be viewed in the context of all other 

factors and is not necessarily proof of the absence of discrimination in voting.

x Voter turnout alone is an imperfect indicator of ongoing discrimination in voting. 

Nonetheless, persistent gaps in minority turnout may further indicate that minority citizens 

face greater burdens in voting.

x On a national level, the currently low turnout rates among Asian/Pacific Islander, Latino,

and Native American voters are as low as the less than 50 percent turnout of eligible black 

voters that formed the basis for the initial preclearance formula in Section 5 at the time of 

the 1964 Presidential Election.

x Without Section 5 preclearance, the DOJ has not been able to object to prevent enactment 

of laws that courts later determined to have been specifically intended to limit black 

Americans’ and Latino Americans’ right to vote.

x Strict voter ID laws typically produce the greatest burden for African-American and 

Latino-American communities.

x Significant voting rights barriers persist that are specific to Native-American voters and 

Native-American communities, including long distances to travel to polling places 

particularly for those living on reservations without physically deliverable mailing 

addresses, and lack of access to ballots resulting from the failure of state and local election 

officials to place voter registration and poll sites on the reservations.

x Widespread problems with inaccessibility for voters with disabilities are evident from the 

testimony and underlying data received by the Commission. The vast majority of polling 

places studied by the Government Accountability Office (GAO) in 2016 were inaccessible 

to people with disabilities: only 40 percent of polling places had no barriers to people with 

disabilities. There are problems with physical barriers to get into polling sites as well as 

lack of working accessible voting equipment and lack of sufficiently trained staff to assist 

in operating the equipment.

x Closure of polling places has a significant impact on voter access for people with 

disabilities. Current Population Survey data from the 2016 election showed a sizable 

percentage of survey respondents stating that disability access prevented their voting.

x Persons with disabilities are disproportionately lower income and have less access, 

compared to voters without disability, to voter ID, transportation, and funds.

x Polling place changes can be used to impose barriers on minority voters. 

x Voter roll purges often disproportionately affect African-American or Latino-American

voters.

Preclearance and Shelby County

x After decades of resistance and overt discriminatory actions on the part of officials in 

several states and local jurisdictions, the Section 5 “preclearance” provisions of the VRA 

proved necessary to deal with persistent and adaptive voting discrimination, because 

litigation was slow and ineffective in stopping racially discriminatory election practices 

until after an election had taken place.

x The narrowness of other mechanisms to halt discriminatory election procedures before they 

are instituted has resulted in elections with discriminatory voting measures in place.

x After an election with discriminatory voting measures in place, it is often impossible to 

adequately remedy the violation even if the election procedures are subsequently 
Chapter 6: Findings and Recommendations 279

overturned as discriminatory. Officeholders chosen under discriminatory election rules 

have lawmaking power, as well as the benefits of incumbency to continue those rules to 

perpetuate their continued election.

x Preclearance proved a strong deterrent against state and local officials seeking to suppress 

the electoral power of growing minority communities through the enactment of policies 

and procedures that violated the protection of the Voting Rights Act.

x Preclearance resulted in the DOJ making 490 objections to covered jurisdictions’ voting 

changes from 1965-1982, and 626 objections from 1982 to 2004 (in both time ranges, the 

DOJ made about 28.5 objections per year), substantiating the effectiveness of the 

provisions in preventing violations of the VRA.

x In Shelby County, the Supreme Court struck down the geographic scope criteria for the 

VRA’s preclearance provision, effectively halting heightened federal scrutiny in advance 

of voting changes in jurisdictions with a history of discrimination in voting.

x The impacts of the Shelby County decision in formerly covered jurisdictions include:

o The burden of proving voting discrimination now lies with a plaintiff and not the 

jurisdiction proposing the change even though the jurisdiction has easier access to 

data and analysis regarding the impact of a particular change and evidence of 

discriminatory intent;

o Voting changes go into effect immediately, unless post-implementation or postenactment litigation is brought that secures a preliminary injunction under the 

remaining provisions of the VRA, the Constitution, or another state or federal law,

which have proven difficult to obtain close to elections;

o Section 5’s rule against retrogression—that is, preventing voting changes that worsen 

the position of minority voters as compared to the prior voting law or practice or 

“benchmark” in covered jurisdictions—is no longer in operation;

o Neither the DOJ nor voters have the right to receive notice of changes in voting 

procedures, shifting the burden of monitoring election changes to voting rights 

groups, and imposing a large burden on communities, who must now stretch limited 

resources to track changes themselves in the absence of government transparency;

o The DOJ no longer has the obligation to reach out to members of impacted 

communities to hear their point of view about the impact of proposed voting changes;

o Under its interpretation, the DOJ is no longer able to send federal observers (unless 

they are separately ordered by a court) which makes it much more difficult to 

determine compliance with the VRA; and

o Under the DOJ’s interpretation of Section 4(f)(4), the VRA no longer provides for 

language access in some of the previously covered jurisdictions.

x The Shelby County decision had the practical effect of signaling a loss of federal 

supervision in voting rights enforcement to states and local jurisdictions.

x The voting laws implemented in North Carolina and Texas immediately following the 

Shelby County decision are examples of the immediate impact of the decision on the 

behavior of state and local officials. In both states, the changes were eventually found, after 

prolonged litigation, to be discriminatory. A review of these voting changes and the 

litigation challenging them show:

o Changes that were previously not cleared by the federal government under Section 5 

in covered states were immediately implemented;
280 An Assessment of Minority Voting Rights Access

o Federal courts held that the laws were motivated by an intent to discriminate against 

minority voters, in one case, “with surgical precision;”

o These voting changes remained in place through several elections, though courts 

eventually found that the changes were motivated by racial discrimination and/or had 

discriminatory effects; and

o Statewide discriminatory voting changes adversely impacted the rights of large 

numbers of eligible voters; and future judicial preclearance or “bail in” was not 

ordered by the courts in the wake of findings of intentionally racially discriminatory 

election changes.

x Even after a ruling striking down the North Carolina voter ID provision as discriminatory, 

strong legislative support for a proposed state constitutional amendment in North Carolina 

calling for photo identification before voting in person reflects risk for minority voters who 

no longer enjoy preclearance protection.

Section 2 Enforcement

x In the face of ongoing discrimination in voting procedures enacted by states across the 

country, enforcement and litigation under Section 2 of the VRA is an inadequate, costly,

and often slow method for protecting voting rights.

x The number of successful Section 2 cases since the Supreme Court decided Shelby County

has quadrupled. That persistence and increase in judicial findings of race discrimination 

involving voting practices illustrates that racial discrimination in voting continues.

x Preliminary injunctions or other effective interim remedies were rarely issued in postShelby County Section 2 cases filed, sometimes because of judicial concerns over 

disrupting imminent elections. Preliminary injunctions were in most cases denied, and 

where they were issued, were then overturned. For the cases in which a Section 2 claim 

was ultimately declared meritorious—months or years later—this pattern means that the 

elections that occurred in the interim were conducted with racially discriminatory voting 

measures. It means that the voting rights were actually violated, without any remedy for 

the injured candidates or communities.

Language Minority Protections

x Sections 4(e), 4(f)(4), 203, and 208 are the “language minority” provisions of the Voting 

Rights Act. Section 203 requires that the Census Bureau identify jurisdictions that contain 

language minority voters who are limited in their English proficiency (LEP). These 

jurisdictions across the country must provide bilingual written voting materials and voting 

assistance in the minority languages covered by the VRA. Jurisdictions covered include 

both those provided under Section 4(f)(4) and those under Section 203. These sections 

mandate that bilingual election materials be provided where the number of United States 

citizens of voting age is a single language group within the jurisdiction and LEP members 

of that group either make up more than 10,000 or more than 5 percent of all voting age 

citizens, and the illiteracy rate is higher than the national rate; or within an Indian 

reservation the population exceeds 5 percent of all reservation residents. Section 4(e) 

prohibits conditioning the voting rights of citizens educated in Puerto Rico in Spanish on 

their ability to read and understand the ballot in English.
Chapter 6: Findings and Recommendations 281

x Failure to provide or make available legally required language access voting materials and 

to comply with Section 208’s requirement that allows voters to bring an assistant of their 

choosing imposes unnecessary barriers to voting for limited-English proficient Asian, 

Latino, and Native American voters.

x Despite Native American Rights Fund’s (NARF) victories in expensive and timeconsuming litigation in the state of Alaska, the state of Alaska has refused to comply with 

Section 203 and NARF has had to sue repeatedly. The Alaska SAC recommended that the 

Commission ask the DOJ to enforce Section 203 and send federal observers to Alaska.

x The DOJ has been enforcing a decreasing number of Section 203 and related language 

access cases. The DOJ filed 20 language access cases from the 2006 VRA authorization 

until Shelby County, and only 1 language access case after Shelby County.

x In 2013, for the first time, the DOJ clarified the law under Section 203 in Alaska and ruled 

that if voting materials were in English they must also be in the covered languages. This 

change resulted in voter turnout increases in many Alaska Native villages that ranged from 

increases of 8 percent to 22 percent.

Protections for Voters with Disabilities

x Section 208 of the VRA mandates that voters who require assistance to vote be provided 

assistance of the voter’s choice. Whether by reason of blindness, disability, or inability to 

read or write, a voter may be provided assistance by a person of their choosing, other than 

an employer, an agent of an employer, or an officer or agent of the voter’s union. The 

ability to have assistance of the voter’s choice eases the strain on election workers and 

prevents issues with long lines by reducing the number of instances in which two election 

workers, of differing parties, must stop their other duties to provide direct assistance to a 

voter.

x Section 208 of the VRA has not been well-utilized or enforced. The DOJ appears to have 

limited its enforcement of Section 208 to language access cases, and failed to provide 

adequate guidance or enforcement for compliance in support of voters with disabilities.

The DOJ Efforts

x The DOJ’s enforcement power is hampered by loss of preclearance.

o Under Section 5, the DOJ requests for information alone caused a significant increase 

in local jurisdictions protecting minority voting rights.

x The Commission’s research shows that there is a need for increased DOJ VRA enforcement 

efforts.

x The DOJ has done minimal Section 2, post-Shelby County litigation. Similarly, since the 

2006 VRA reauthorization, the DOJ has only brought seven Section 2 cases.

x Due to high expenses and slow pace, private litigation under Section 2 cannot replace the 

DOJ enforcement efforts under the suspended Section 5 provision—but private litigation 

has far outpaced the DOJ efforts.

x The data in this report show a high level of recent, successful Section 2 cases brought by 

private parties, a historically much higher level of Section 2 cases brought by the DOJ 

Voting Section lawyers, and an overall trend of discrimination in voting emerging during 

recent years.
282 An Assessment of Minority Voting Rights Access

x The DOJ does not send federal observers into formerly covered jurisdictions unless there 

has been a court finding of discrimination and a court order for federal monitoring.

o There has been a sharp decline in federal observer and election monitoring programs 

from the DOJ since Shelby County. While the Department sent over 780 federal 

observers and 259 election monitors to 51 jurisdictions in 23 states in 2012, by 2014, 

the DOJ “conduct[ed] in-person monitoring of polling place activities” in only 28 

jurisdictions in 18 states. Between 2006 and 2017, the overall number of federal 

personnel at the polls declined by 45.2 percent.

x The dearth of the DOJ language access or assistance enforcement has left too many citizens 

without the access or ability to vote and undermined the ability to exercise their right to 

vote.

o The DOJ’s filing of only one language case since the Shelby County decision is in 

contrast to an ongoing need for language access protections.

x The DOJ litigation or intervention in litigation can be “a powerful statement, but very rarely 

used for the benefit of Native Americans.”1539

o The DOJ has not brought a case on behalf of Native American voters in nearly 20 

years, leaving the burden on Native American voters to defend their own rights. The 

DOJ has participated in litigation regarding Native American voting rights only 

through amicus briefs and statements of interest.

Recent Changes in Voting Procedures 

x Because of the nature of voting rules being broadly applicable to all eligible voters, a single 

change in law, procedure, or practice can disproportionately affect large numbers of 

eligible voters and possibly discriminate against certain groups of people whose voting 

rights are protected by the VRA.

x Public confidence in elections is important. Measures to ensure public trust and confidence 

need to balance the weight of legitimate and verifiable risks regarding election integrity 

and the effects on voters’ fundamental ability to exercise their votes without unnecessary 

burdens on participating in American democracy.

x Study after study, including from the Republican National Lawyers Association and a 

News21 analysis, confirm that voter fraud is extremely rare in the United States.

x In states across the country, voting procedures that wrongly prevent some citizens from 

voting have been enacted and have a disparate impact on voters of color and poor citizens, 

including but not limited to: voter ID laws, voter roll purges, proof of citizenship measures, 

challenges to voter eligibility, and polling places moves or closings.

x As applied, “strict” voter ID laws that limit the acceptable forms of proof of identity to a 

narrow list of documents correlate with an increased turnout gap between white and 

minority citizens.

 

1539 Landreth, Written Testimony, supra note 1099, at 3.
Chapter 6: Findings and Recommendations 283

x Aggressive purges of voter rolls, particularly when based on flawed systems like 

Crosscheck, will improperly remove many voters and may improperly remove a disparate 

amount of minority voters.

x When states cut early voting, they can create unduly long lines and limit minority citizens’ 

access to voting. In some places where early voting was reduced, minority citizens had 

disproportionately utilized early voting.

x In some states, cuts to polling places resulted in decreased minority voter access and 

influence.

x Documentary proof of citizenship voter registration requirements disparately prevent 

people of color from registering to vote. Moreover, because these requirements force some 

citizens to pay fees to replace lost proof-of-citizenship documents, documentary proof of 

citizenship requirements impose a disparate cost on people of color.

x There is significant evidence that some methods of identifying voters registered in more 

than one jurisdiction, such as the Crosscheck system, produce an extremely high number 

of false positives. Overreliance on such a system has led to inappropriate challenges to the 

legitimate registration of voters who share a name and birthdate with voters elsewhere.

x Vote by mail in many jurisdictions appears to have increased voter turnout, but there must

be other options for voters in rural areas who do not have a reliable mail service or who do 

not have a street address or who have mailboxes that are long distances from their home 

and work.
284 An Assessment of Minority Voting Rights Access

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Chapter 6: Findings and Recommendations 285

RECOMMENDATIONS

Because of the depth of voting discrimination that continues across the nation today, citizens need

strong, proactive federal protections—in statute and in enforcement—for the right to vote.

Congress

x Congress should amend the VRA to restore and/or expand protections against voting 

discrimination that are more streamlined and efficient than Section 2 of the VRA.

o In establishing the reach of an amended VRA coverage provision, Congress should 

include current evidence of voting discrimination as required by Shelby County, as 

well as evidence of historical and persisting patterns of discrimination. A new 

coverage provision should account for evidence that voting discrimination tends to 

recur in certain parts of the country. It also should take account of the reality that 

voting discrimination may arise in jurisdictions that do not have extensive histories of 

discrimination since minority population shift and efforts to impose voting 

impediments may follow.

o Congress should invoke its powers under the Reconstruction Amendments and the 

Elections Clause to ground the new provisions upon the strong federal interest in 

protecting the right to vote in federal elections.

o Congress should consider but not exclusively base any new coverage provision for 

Section 5 on turnout or registration statistics for various demographic groups.

x Congress should provide a streamlined remedy to review certain changes with known risks 

of discrimination before they take effect—not after potentially tainted elections.

x Congress should require greater transparency and effective public notice, including webbased disclosure of voting changes affecting federal elections, sufficiently in advance of 

elections so that voters are less likely to be to be surprised by changes and able to challenge 

those that have a discriminatory impact that would violate voting rights and election-related 

laws.

x Congress should take account of the range and geographic dispersion of racial and language 

minorities in any new geography-based coverage rule, for example, by adding elements 

that identify certain practices that may require closer preclearance scrutiny nationwide if a 

threshold showing of potential voting discrimination can be made.

x Congress should evaluate whether Section 203 should be amended to include coverage of 

black and Arab-American language minorities.

x In amending the VRA, Congress should take account of the variety of measures that can 

impede minority voter access, and that many facially neutral measures can impose 

substantial disparities on minority communities and are sometimes intended to do so. 

Relatedly, small voting changes to polling place locations without notice and temporally 

close to an election are an example of a seemingly small change with a potentially farreaching impact.

x Congress should not exempt voter ID laws from review in any amendment to the VRA. 

Rather, those measures should be evaluated under the legal framework of available voting 

statutes to determine whether the law or application imposes any discriminatory effect or 

intent.
286 An Assessment of Minority Voting Rights Access

x Congress should expand the ability of the DOJ to use observers to monitor all potentially 

discriminatory practices, particularly for language access compliance, and lower the 

threshold for the DOJ to deploy election observers where there are risks of voting 

discrimination.

The DOJ

x Private litigants play a vital role as “private attorneys general” enforcing the VRA;

however, litigation, particularly without Section 5, requires significant resources that only 

the federal government is able to expend. The DOJ should pursue more Voting Rights Act 

enforcement in order to address the aggressive efforts by state and local officials to limit 

the vote of minority citizens and the many new efforts to limit access to the ballot in the 

post-Shelby County landscape.

x The DOJ should reinvigorate its efforts to protect voting rights through heighted 

enforcement activity of all of the provisions of the VRA.

x The DOJ should remind jurisdictions of their obligations under the language minority 

provisions, and increase its monitoring of compliance and bring cases to enforce them.

x The DOJ should significantly increase Section 208 enforcement initiatives and litigation. 

The DOJ should provide additional guidance clarifying how Section 208 should and should 

not be interpreted by the states, including guidance regarding voters with disabilities. States 

should be prevented from passing additional language that restricts who can use Section 

208 assistance.

x The DOJ should increase its Section 2 enforcement. The number of successful Section 2 

lawsuits brought by private parties post-Shelby County is indicative of continued voting 

rights violations by jurisdictions. The DOJ, rather than private litigants, is best positioned 

to pursue these costly, complex Section 2 cases and should increase its enforcement 

presence.

x The DOJ should file amicus briefs and statements of interest in voting rights litigation that 

vindicate the purposes of the VRA to protect the franchise of all citizens.

x The DOJ should dedicate additional resources to ensure voter access for disabled persons,

and work with other relevant agencies to enforce laws mandating accessibility of polling 

places and voting machines.

x The DOJ should increase its Voting Rights Act enforcement activity to address the needs 

of underserved minority populations including but not limited to Native American and 

Alaska Native communities.
Commissioners’ Statements 287

COMMISSONERS’ STATEMENTS

Chair Catherine E. Lhamon Statement, in which Vice Chair Patricia Timmons-Goodson 

Concurs

As this report reflects, citizens in the United States—across our many states, not limited only to

some parts of the country—continue to suffer significant, and profoundly unequal, limitations on

their ability to vote. That stark reality denigrates our democracy and diminishes our ideals. This

level of ongoing discrimination confirms what was true before 1965, when the Voting Rights Act

became law, and has remained true since 1965: Americans need strong and effective federal

protections to guarantee that ours is a real democracy.

The investigations of the Commission and its State Advisory Committees lowlight the painful

contemporary truth of that need, for example, in New Hampshire where 100 percent of polling

places were physically inaccessible to people with disabilities in a recent municipal election.1 The

Commission’s Advisory Committees in Ohio,

2 Illinois,3 and Texas4 reported that voters of color

recently and repeatedly suffered sometimes physical intimidation when they attempted to vote in

multiple recent elections. The Commission’s Kansas Advisory Committee documented Native

American tribal ID rejection at polling sites, even though tribal IDs are a legal form of voter ID in

the state.5 In New York just three years ago, baseless racially identifiable citizenship challenges

impeded Americans from voting.6 In Alaska, the Commission’s Advisory Committee reported that

voters could not access voting materials in the languages they speak during the most recent

elections.7 In North Carolina we heard testimony about a voter over 90 years of age who had to

 

1 New Hampshire Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in New Hampshire, 

(Mar. 2018), at 16, https://www.usccr.gov/pubs/2018/05-16-NH-VotingRights.pdf.https://www.usccr.gov/pubs/2018/05-16-NH-Voting-Rights.pdf. 2 Ohio State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in Ohio, May 2018, at 13, 

https://www.usccr.gov/pubs/2018/06-27-OH-Voting-Rights.pdf. 3 Illinois State Advisory Committee to the U.S. Comm’n on Civil Rights, Civil Rights and Voting in Illinois, Feb. 

2018, at 20, https://www.usccr.gov/pubs/2018/IL-Voting-Rights.pdf. 4 Texas State Advisory Committee to the U.S. Comm’n on Civil Rights Briefing Transcript 60-61 (2018), 

https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155615&cid=276. 5 Kansas State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights and the Kansas Secure and 

Fair Elections Act, Mar. 2017, at 12, https://www.usccr.gov/pubs/docs/KS-Voting-Rights-Report.pdf (citing 

O’Toole Testimony, Transcript, at 79-80). 6 Report at 140-41. 7 Alaska State Advisory Committee to the U.S. Comm’n on Civil Rights, Alaska Native Voting Rights, Mar. 2018, at 

5, https://www.usccr.gov/pubs/2018/05-25-AK-Voting-Rights.pdf (citing James Tucker, Co-Counsel, Wilson, Elser, 

Moskowitz, Edelman, & Dicker LLP, written testimony submitted to the Alaska State Advisory Committee to the 

U.S. Comm’n on Civil Rights Briefing Transcript, at 4 (2017), 

https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155497&cid=234). 

https://www.usccr.gov/pubs/2018/05-25-AK-Voting-Rights.pdf (citing James Tucker, Co-Counsel, Wilson, Elser, 

Moskowitz, Edelman, & Dicker LLP, written testimony submitted to the Alaska State Advisory Committee to the 
288 An Assessment of Minority Voting Rights Access

make 11 trips to different state agencies and institutions to try and obtain the correct paperwork

because her voter registration card did not match the name on her license.8 In recent elections in

Arizona9 and Indiana,10 as documented by the Commission’s Advisory Committees in those states,

even though polling locations had accessible technology, poll workers were not trained in how to

use it, leaving voters with disabilities without a way to vote. In Georgia a legislator openly stated

that he does not want early voting because of the type of people—voters of color—who will use

it.11

In these among so many circumstances still proliferating across the United States, we have let our

voters down, compromising the integrity of our American self-concept. This report excavates, in

sometimes exhausting detail, the ongoing, repetitive, and unfortunately predictable nature of

voting discrimination in varying forms that persists with insufficient legal deterrents and often

delayed or entirely absent remedies. That excavation confirms the need for effective federal policy

responsive to the likelihood of voter discrimination and sufficient to deter such discrimination and

timely remedy it when it does occur.

Because our existing federal statutory protections for the right to vote fail actually to ensure that

each eligible voter may in fact exercise that right in every election in every state every time, I join

my fellow Commissioners in calling on Congress urgently to correct the gap in our existing civil

rights protections to ensure that each among us may participate fairly in democratic citizenship.

 

U.S. Comm’n on Civil Rights Briefing Transcript, at 4 (2017), 

https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155497&cid=234). 8 Briefing Transcript, supra note 234, at 303-04 (statement by Bishop Dr. William Barber II, President and Senior 

Lecturer of Repairers of the Breach).

9 Testimony of Renaldo Fowler, Senior Staff Advocate, Arizona Center for Disability Law, at the Briefing before 

the Arizona Advisory Committee to the U.S. Comm’n on Civil Rights, briefing transcript at 83 (2018) (on file). 10 Testimony of Dawn Adams, Executive Director, Indiana Disability Rights, at the Briefing before the Indiana 

Advisory Committee to the U.S. Comm’n on Civil Rights, briefing transcript in Carmel, Indiana at 69 (2018) (on 

file).

11 While considering legislation on weekend voting availability in that state, a Georgia state legislator expressed his 

opposition “because Black and other voters of color take advantage of these voting opportunities disproportionately, 

explaining that he ‘prefer[s] more educated voters than a greater increase in the number of voters.’” Written 

Testimony of Sherrilyn Ifill, President and Director-Counsel, NAACP Legal Defense and Education Fund, Inc. to 

the U.S. Comm’n on Civil Rights, Feb. 2, 2018, at 8 (on file). 
Commissioners’ Statements 289

Vice Chair Patricia Timmons-Goodson Statement, in which Chair Catherine E. Lhamon 

Concurs1

Introduction

As a proud North Carolinian, I was honored that the Commission chose to hold the briefing, “An

Assessment of Minority Voting Rights Access in the United States,” in my home state. I have lived

in North Carolina for my adult life and served in its judiciary for 28 years. I am proud of my state

and its accomplishments, and always look forward to “showing it off” to visitors.

However, I also understood that the Commission’s decision to come to North Carolina for the

voting rights briefing reflected its thinking that North Carolina was the epicenter of the post-Shelby

County election world. Given North Carolina’s history of voting discrimination,2 “significant

legislation, litigation, and statewide discussion of voting rights issues”3 filled the television

airwaves and newspapers pre- and post-Shelby County.

Just as the Civil War revolutionized the expectations of former slaves, the Voting Rights Act

revolutionized the expectations and lives of African Americans throughout the South. After its

passage, we were imbued with hope, promise, and a spirit of determination. As a result, the number

of African-American voters and African-American elected officials increased.

Voter Suppression in North Carolina

Unfortunately, that progress and the increasing level of voter participation are imperiled following

the decision in Shelby County. When the Supreme Court issued Shelby County in 2013,

Republicans controlled the North Carolina legislature and governorship—but Democrats had won

other statewide offices and demographics suggested that North Carolina would become

increasingly blue.4

As the Commission Report discusses, North Carolina Republicans then passed a new election bill

that reduced early voting, cut polling places, and required voter ID.

5 The report collects evidence

indicating that those changes have had a discriminatory impact on poor and minority voters.6

Recently, Republican leaders have admitted they had a discriminatory intent—to prevent

 

1 Chair Lhamon concurs in the spirit and substance of the Vice Chair’s statement while acknowledging that her 

observations as a former judge reflect her unique professional judgments and experiences regarding the special 

importance of the issues addressed in this report.

2 U.S. COMM. ON CIV. RIGHTS, An Assessment of Minority Voting Rights Access in the United States, at 58-69 (2018) 

[hereinafter Commission Report]. 3 Commission Report at 58. 4 See, e.g., Julie Ajinkya and Rachel Wilf, Toward 2050 in North Carolina, CENTER FOR AMERICAN PROGRESS 

(MAY 8, 2012, 9:00 AM), https://www.americanprogress.org/issues/race/reports/2012/05/08/11543/toward-2050-innorth-carolina/. 5 Commission Report at 58-59. 6 See generally, Commission Report at 61-69.
290 An Assessment of Minority Voting Rights Access

Democrats, who are disproportionately African American, from voting.7 In other words, North

Carolina Republicans changed voting laws to keep poor and black Democrats from voting.

As the federal government did not need to preclear any changes after Shelby County, a court threw

out the changes because they targeted African Americans “with almost surgical precision”8—but

only after years of litigation. The Supreme Court did not deny review and finalize the case until

May 2017.9 In the meantime, North Carolina had two rounds of elections for its State Senate; two

rounds of elections for its State House; two (close) Senate elections; 26 United States House

elections; a (very close) gubernatorial election; a round of state executive elections; and a (close)

presidential election. During those elections, North Carolina Republicans politicized the right to

vote: they entrenched their own power by suppressing the voice of the poor and people of color.

Full of Potential Force: Overcoming Voter Suppression

During the Commission’s briefing, Bishop Dr. William J. Barber II, President and Senior Lecturer

of Repairers of the Breach,10 asserted as follows:

Without the protection of the Voting Rights Act preclearance provisions, Jim Crow

era voter suppression efforts are reappearing in North Carolina and in too many

other states across the country. The wave of voter suppression, which has

disproportionately impacted voters of color, imperils the confidence of all voters of

good will and strikes to the very heart of our democracy.11

As Bishop Barber intimates, the U.S. Supreme Court’s decision in Shelby County will reverberate

in North Carolina for years to come. I share Bishop Barber’s concern that African Americans in

particular will lose the confidence that we have slowly rebuilt after losing our voting rights during

the era of Jim Crow.

However, suppressive acts are not new to African Americans in North Carolina. At the turn of the

20th century, a state constitutional amendment disenfranchised black voters.12 Prior to that time,

in Wilmington, NC, for example, black people had public jobs and were elected to several public

 

7 William Wan, Inside the Republican creation of the North Carolina voting bill dubbed the ‘monster’ law, WASH.

POST (Sept. 2, 2016), https://www.washingtonpost.com/politics/courts_law/inside-the-republican-creation-of-thenorth-carolina-voting-bill-dubbed-the-monster-law/2016/09/01/79162398-6adf-11e6-8225-

fbb8a6fc65bc_story.html?noredirect=on&utm_term=.264fe87d6481. 8 N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016). 9 North Carolina NAACP v. McCrory (Amicus Brief), BRENNAN CENTER FOR JUSTICE (May 15, 2017), 

https://www.brennancenter.org/legal-work/north-carolina-naacp-v-mccrory-amicus-brief. 10 Repairers of the Breach is a not-for-profit organization with a moral agenda focused on “how our society treats the 

poor, women, LGBTQ people, children, workers, immigrants, communities of color, and the sick.” See

https://www.breachrepairers.org/. 11 Briefing Transcript, supra note 234, at 41-42 (statement by Bishop Dr. William Barber II). 12 Vann R. Newkirk II, The Battle for North Carolina: Politics, social, and demographic forces in the battleground of 

North Carolina promise a reckoning with its Jim Crow past, THE ATLANTIC (Oct. 27, 2016), 

https://www.theatlantic.com/politics/archive/2016/10/the-battle-for-north-carolina/501257/. 
Commissioners’ Statements 291

offices: aldermen, policemen, and firemen.13 Throughout the state, black people had been

politically engaged. But growing resentment and white supremacy foreclosed continued black

advancement. In response to their disenfranchisement, Representative George Henry White, the

last black congressman elected before the era of Jim Crow, stated:

This, Mr. Chairman, is perhaps the Negroes’ temporary farewell to the American

Congress, but let me say, Phoenix-like he will rise up someday and come again.

These parting words are in behalf of an outraged, heart-broken, bruised, and

bleeding, but God-fearing people, faithful, industrious, loyal people─rising people,

fully of potential force.14

During the era of Jim Crow, suppressive efforts included literacy tests,15 grandfather clauses, and

poll taxes. However, the Voting Rights Act helped increase African-American participation as it

outlawed those suppressive methods.

As the Commission’s Report discusses, suppressive efforts continue today. Bishop Barber

enumerated some of the voter suppression tactics in North Carolina which include reduced polling

places and the “visible presence of KKK members and swastikas on streets near pro-voting

marches as well as derogatory comments from bystanders.”16 Other suppressive tactics include

ending early voting on Sundays, ending same-day registration, and ending polling places on

college campuses.

Yet, African Americans in North Carolina are still “full of [the] potential force” to which George

Henry White spoke. Reverend Barber testified that “community organizing and a strong sense of

civic duty, based on history, contributed to the fact that black turnout did not significantly decrease,

despite the communit[y] facing measures that ‘surgically targeted’ the ways that African

Americans vote in North Carolina.”17

In response to suppressive efforts, African Americans have increased their commitment to

voting—leading to voting rates similar to the general population. But, this equal rate of voting

masks the unequal efforts required for African Americans to vote, and falsely allows people to

claim voting equality due to African Americans’ disproportionate efforts.

 

13 William Alexander Mabry, The Negro in North Carolina Politics Since Reconstruction, 52 (Duke University 

Press, 1940).

14 Vann R. Newkirk II, The Battle for North Carolina: Politics, social, and demographic forces in the battleground of 

North Carolina promise a reckoning with its Jim Crow past, THE ATLANTIC (Oct. 27, 2016), 

https://www.theatlantic.com/politics/archive/2016/10/the-battle-for-north-carolina/501257/. 15 Joel A. Thompson, The Voting Rights Act in North Carolina: An Evaluation, 16 PUBLIUS, 139, 139-53 (noting that 

the Voting Rights Act of 1965 suspended literacy tests and other discriminatory voter registration tests and 

requirements that were practiced in 40 North Carolina counties).

16 Commission Report at 68. 17 Commission Report at 203-04.
292 An Assessment of Minority Voting Rights Access

In practice, this commitment looks like hundreds standing in line to cast their vote on a Sunday in

spite of Sunday voting cutbacks.18 This commitment looks like Souls to the Polls, a tradition aimed

at getting African American churchgoers to vote after a Sunday church service.19 This commitment

looks like Chief Justice Henry Frye, North Carolina’s first African American elected official to the

General Assembly and later first African American Supreme Court justice. Frye was turned away

from registering to vote in the 1950s when he did not pass the literacy test,20 but the first bill he

introduced was a constitutional amendment abolishing the literacy test.21 The commitment also

looks like Rosanell Eaton, a longtime voting activist who on two occasions had to prove her

eligibility to vote. On the first occasion, in 1942, Eaton successfully registered to vote after

Louisburg courthouse registrars required her to “put her hands by her side, stare straight ahead,

and recite the Preamble to the Constitution.”22 On the second occasion, in 2013 and at 92 years

old, Eaton traveled hundreds of miles and visited almost a dozen agencies and banks to reconcile

her license and registration to prove her eligibility to vote.23

Conclusion

Without federal oversight, Republicans have incentives to make voting more difficult for AfricanAmerican voters in North Carolina and other states. While African Americans have a history of

overcoming these relentless voter suppression tactics, in 2018 we should not have to continue to

“overcome.” Instead, the federal government should protect our voter rights.

While I fully support all Findings and Recommendations in the Commission’s Report, I highlight

a few that are relevant to the voting injustices in North Carolina:

Findings

x Strict voter ID laws typically produce the greatest burden for African-American and Latino 

communities.

x Voter roll purges often disproportionately affect African-American or Latino voters.

Recommendations

x In amending the VRA, Congress should take account of the variety of measures that can 

impede minority voter access and that many facially neutral measures can impose 

 

18 Sean Gallitz, Democrats Try for Black Turnout with “Souls to the Polls” Events in NC, CBS NEWS (Oct. 25, 2016 

5:53 AM), https://www.cbsnews.com/news/democrats-try-for-black-turnout-with-souls-to-the-polls-events-in-nc/. 19 Julienne Gage, North Carolina Churches Sending ‘Souls to the Polls’: Black churches continue to play a role in 

the US state’s civil rights movement, marching together to voting centres, ALJAZEERA (Oct. 24, 2016), 

https://www.aljazeera.com/indepth/features/2016/10/north-carolina-souls-polls-161024190219349.html. 20 Nancy McLaughlin, Civil Rights Icon Henry Frye Introduces Obama, Tells a Story, Oct. 11, 2016, 

https://www.greensboro.com/blogs/mclaughlin_faith_matters/civil-rights-icon-henry-frye-introduces-obama-tells-astory/article_aeb0d4a6-d38c-5924-8985-6df2d3b5901f.html. 21 Henry Frye: First African-American on the N.C. Supreme Court, NC Department of Natural and Cultural 

Resources, https://www.ncdcr.gov/blog/2017/02/03/henry-frye-first-african-american-on-the-n-c-supreme-court. 22 Vann R. Newkirk II, The Battle for North Carolina: Politics, social, and demographic forces in the battleground of 

North Carolina promise a reckoning with its Jim Crow past, THE ATLANTIC (Oct. 27, 2016), 

https://www.theatlantic.com/politics/archive/2016/10/the-battle-for-north-carolina/501257/. 23 Id.
Commissioners’ Statements 293

substantial disparities on minority communities and are sometimes intended to do so. 

Relatedly, small voting changes to polling places without notice and close in time to an 

election are an example of a seemingly small change with a potentially far-reaching impact.

x Congress should not exempt voter ID laws from review in any amendment to the VRA. 

Rather, those measures should be evaluated under the legal framework of available voting 

statutes to determine whether the law or application imposes any discriminatory effect or 

intent.
294 An Assessment of Minority Voting Rights Access

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Commissioners’ Statements 295

Commissioner Debo P. Adegbile Statement, in which Chair Catherine E. Lhamon, ViceChair Patricia Timmons-Goodson, and Commissioner David Kladney Concur 

Democracy depends upon people expressing their voices freely through their votes. Our

commitment to this deceptively simple proposition is essential to the American conception of

liberty and freedom. Votes are the voice of the people collectively expressed, and we are a free

society because we have both the right and power to vote, to select our leaders, and express our

preferences at the ballot box.

This is the essence of self-government. And, framed at this level of generality it captures shared

values that define us—this is who we are and who we want to be. Our history and experience,

however, teach us that democratic principles are not self-executing. For most of our history there

was an intolerable and democracy-offending gap between our high democratic promises and our

low anti-democratic practices. Most notably, for nearly a hundred years after the passage of the

Fifteenth Amendment, our constitutional promise of the right to vote free from racial

discrimination was honored more in the breach than in observance in too many places.

As this report explains, the federal government only began to successfully address flagrant voting

discrimination once the Voting Rights Act of 1965 was passed. Earlier legislative measures had

proven inadequate.

The path to passage of the Voting Rights Act was slow and arduous. Over time, change came as

the direct result of bravery and sacrifice, including civil rights protests and activism, legal

challenges, Presidential leadership, and landmark Congressional legislation. The Voting Rights

Act of 1965 was signed on August 6, 1965 and it is now recognized as one the most important

Congressional enactments of any kind.

1

How and why?

How? The Voting Rights Act is one of a small number of federal laws that some Americans

literally died to achieve. Our predecessors knew that we really could not be the America we aspire

to be if the Constitution was brazenly ignored and Jim Crow made our system of elections

undemocratic. Military veteran Jimmy Lee Jackson in Alabama died for the right to vote, a brutal

killing that directly gave rise to the history-altering march from Selma to Montgomery, a key

catalyst for the passage of the Voting Rights Act. Americans observing the intolerable injustice

traveled to join the protests, and Viola Liuzzo, a 39-year-old mother of 5 from Detroit, Michigan

was murdered in 1965 for our right to vote in Alabama. Andrew Goodman, 20, and Mickey

Schwerner, 24, from New York together with Mississippian James Earl Chaney, 21, in Neshoba

County of his home state, were murdered by the KKK because the three were brave enough to

advocate for equal voting rights. Minister James Reeb, whose ministry took him from his Kansas

 

1 Ten Bills That Really Mattered, ROLLCALL (May 2, 2005, 2:25 PM), http://www.rollcall.com/news/-9110-1.html.
296 An Assessment of Minority Voting Rights Access

roots, to Philadelphia, right here to Washington D.C., to Boston, Massachusetts, and fatefully to

Selma, Alabama, was beaten to death there because he stood up for our right to vote.

The violence captured on the Edmund Pettus Bridge in Selma, a town in which a major Civil War

battle had been fought exactly one hundred years prior2, was a modern-day, televised, brutal assault

on men, women, and children but also on our democracy itself. The Edmund Pettus Bridge proved

to be a bridge that provided passage not only for cars and marchers but also for a nation that needed

to travel the distance from its systematic and unabashedly racist voting exclusion to a more

inclusive and true democracy predicated on equality and inclusion.

The events in Selma moved President Lyndon Johnson of Texas to deliver what many believe to

be one the best and most significant civil rights speeches ever delivered before a joint session

of Congress.

3 The speech urged the nation to end voting discrimination and to keep its long broken

constitutional promise to its citizens. It should be assigned for viewing in every high school history

class. The speech reportedly caused civil rights leaders to weep in recognition of the significance

of hearing the President, a son of the south, calling with urgency for a federal voting law and using

the words of the Civil Rights Movement in doing so.

But it is worth noting that the murders did not stop once the Voting Rights Act was passed. Voting

advocate Vernon Dahmer died for the right to vote in Mississippi in 1966—the year I was born.

He was targeted and his home burned down by the KKK—because he was a passionate advocate

for black voter registration. It was a signal that our democracy would continue to be contested and

that even the landmark Voting Rights Act could not dislodge the discrimination by itself.

The U.S. Commission on Civil Rights has witnessed history and helped make it. We have recorded

the experience regarding voting exclusion across the nation and the work continues with this report

and the investigations conducted by our State Advisory Committees. Since its creation in 1957 the

Commission has conducted field hearings that supported the passage of the VRA and played an

important role by documenting voting discrimination, its impacts, and the need for federal

responses.

Why is the Voting Rights Act regarded as one of the most important federal laws of any

kind?

The Act is revered because it was and is transformational. It literally allowed the nation to deliver

on “a dream deferred”—on a promise broken—and to commit meaningfully to self-government

by the people. In tangible ways it gave access to the full measure of citizenship, it allowed longexcluded voters to register, vote, and have their votes count equally. It brought the power of the

United States to bear to enforce the Constitution and guarantee equal voting rights. It expanded

electorates and helped legislative bodies and elected courts become more representative. It barred

invidious tools of voter exclusion and shifted the burdens of “time and inertia”4 from the victims

 

2 Selma 1865—The First "March to Freedom Alabama Public Radio (Aug 3, 2016), http://apr.org/post/selma-1865-

first-march-freedom#stream/0. 3 LBJ Library, President Johnson’s Special Message to the Congress: The American Promise, LBJ PRESIDENTIAL 

LIBRARY (March 15, 1965), http://www.lbjlibrary.org/lyndon-baines-johnson/speeches-films/president-johnsonsspecial-message-to-the-congress-the-american-promise. 4 South Carolina v. Katzenbach, 383 U.S. 301, 328 (1966).
Commissioners’ Statements 297

of voting discrimination to the perpetrators with a preclearance provision that created a system of

federal oversight of voting changes in places with histories of voting discrimination.

Stated simply, the Voting Rights Act made a minority inclusion principle part of American federal

law and provided effective tools for ensuring it.

The Voting Rights Act of 1965 was later expanded and extended to states, like Texas, that urgently

required minority voter protections, against practices that made it difficult for eligible voters to

overcome language and other barriers to vote. The Act embraces the important notion that

disabilities should not impose unacceptable barriers to voter access.

The right to vote is the bedrock of American democracy. It is, however, a right that has proven

fragile and in need of both Constitutional and robust statutory protections. In his award-winning

history of voting in America, Alexander Keyssar explains that American democracy is contested.

He traces the history of the vote from the revolutionary period to the contemporary period and

shows that our nation, conceived in democratic ideals, has expanded the franchise only gradually

and through the concerted efforts of those demanding access to the vote, and through it, to

meaningful inclusion within the nation’s political life.

Congress reauthorized and President Bush signed a Voting Rights Act extension in 2006. It

renewed and strengthened Section 5 preclearance for 25 years and other special provisions

representing the nation’s enduring commitment to minority inclusion in our democracy. In Shelby

County v. Holder, the United States Supreme Court struck down the provision that gave effect to

the federal preclearance provision in many places where voting discrimination has proven

persistent and adaptive. The Court recognized, as it must, that voting discrimination persists but

noted that preclearance must be grounded on contemporary evidence of voting discrimination. The

dissenters noted that the Court was suspending important minority voter protections which were

still vitally needed, and that the Constitution did not require the Court to second-guess Congress

in this way.

The Commission’s 2018 Report, “An Assessment of Minority Voting Rights Access in the United

States,” focuses on an assessment of the U.S. Department of Justice’s enforcement of the VRA in

the years since the last reauthorization in 2006. Because it begins at that point, it examines

enforcement efforts before and after the Shelby County decision. One observation is that voting

changes that would have never had the force of law when there was Section 5 preclearance have

now gone into effect and adversely affected minority voters. Voting discrimination persists in

some of the states where Section 5 did important work. Some of these measures have been

statewide laws that have far-reaching impact and continue during years of complex and costly

litigation in ways that can impact election outcomes.

The report notes that there are many measures that impede minority voters that are based on

tenuous justifications, such as some very strict voter ID laws.

The problem of voting discrimination persists in ways that are not simply “black and white,”

indeed, history teaches that it was never just that way. Native American and Alaska Native voters

face barriers to access, including language and ballot access challenges that many are not

aware of.
298 An Assessment of Minority Voting Rights Access

Latino voters also face challenges to voter access: seemingly small voting changes affecting

polling places or large statewide measures are sometimes intended or have the impact of

discriminating against them. In LULAC v. Perry, Justice Kennedy observed that the State of Texas

manipulated voting laws to take away the ability of Latino voters to have an electoral impact

precisely at the time when they were prepared to do so.5 This is one pattern of voting

discrimination—that discriminatory measures are put in place when minority communities are on

the precipice of exercising their political power, or sometimes in response to that new power, as

we have seen more recently in North Carolina, where an appellate court noted that the

discriminatory statewide law was enacted with surgical precision to discriminate.

The report also examines the important role of “private attorneys general”—private litigants—that

continue to play a vital role in voting rights enforcement. Voting litigators and organizations with

expertise in this area advised that the resources and weight of DOJ enforcement call for DOJ to

become more active in its enforcement efforts.

In support of this notion, and in a post-preclearance world, complex, expensive, and slow litigation

is the best, if uncertain, route to attack voting discrimination and DOJ is uniquely situated to do it.

After an election with discriminatory voting measures in place, it is often impossible to adequately

remedy the violation even if the election procedures are subsequently overturned as discriminatory.

Officeholders chosen under discriminatory election rules have lawmaking power, and the benefits

of incumbency to continue those rules and perpetuate their continued election.

The report also notes that not only was a powerful and efficient enforcement tool lost with the

Shelby County ruling, but also a transparent and a prophylactic mechanism that required

jurisdictions to report their voting changes so that they could invite scrutiny and ensure that the

burdens of potentially discriminatory changes were not imposed immediately or at all.

Preclearance thus blocked voting changes, shed light on them, and provided significant deterrence

in covered jurisdictions.

The impact of the Shelby County decision was tangible and removed important voter protection

tools. But significantly it also sent a signal, clearly received by some states and jurisdictions that

the nation was in a retreat regarding federal minority voting rights enforcement. Both results are

undesirable.

As the report explains, voting discrimination continues to be more concentrated and persistent in

some states and jurisdictions than in others.

Without the preclearance remedy, Section 2 of the VRA is the core remedy for minority voter

discrimination. As the report notes, however, enforcement and litigation under Section 2 of the

VRA is an inadequate, costly, and often slow method for protecting voting rights.

The number of successful Section 2 cases since the Supreme Court decided Shelby County has

quadrupled, but that remedy is not always adequate to the threat to voters. Accordingly, we call

upon Congress to act to improve voter protections in ways that account for historic and persisting

 

5 League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 428-41 (2006).
Commissioners’ Statements 299

threats to minority voters, but also in ways that account for the tendency of voting discrimination

to be directed at burgeoning communities of minority voting power. Congress has the power and

we hope that it will soon embrace its longstanding bipartisan support for the Voting Rights Act to

amend the Act in a way that provides additional minority protection tools consistent with the

Constitution.

In the time since the Commission voted unanimously to approve this report calling for greater DOJ

enforcement and Congressional action, reports6 detailing and cautioning about the impact of

widespread purging of voters have been released, and a federal Judge found that Florida’s early

voting restrictions evidence “a stark pattern of discrimination” at state college and university

campuses. Students like John Lewis and many others were brutally beaten on the Edmund Pettus

Bridge more than 50 years ago, and today voting measures intended to suppress student and

minority votes persist.

Racial discrimination in voting has proven to be a particularly pernicious and enduring American

problem. The pattern that Keyssar so carefully documented, our contested democracy

characterized more by ebbs and flows than by unidirectional progress, persists. It is time for the

nation, however, urged by this Commission and the American people, to call upon Congress and

DOJ to move away, once again, from the ebb and let democracy flow. There are two ways to win

elections—to mobilize more voters or suppress your opponent’s voters. Sadly, both methods can

prove effective, but only a choice to allow all eligible votes to be cast is consistent with the finest

traditions of our nation and we should again make that choice. America’s minority voter inclusion

principle embodied in the VRA helps to define us and we must recommit ourselves to expanding

it. The vote is the most powerful tool in a democracy. To harness its full power however, voting

must be accessible, protected, broadly exercised, and an amended Voting Rights Act and more

DOJ enforcement would enhance the power of the vote.

In Selma, Alabama in 1965 the Reverend CT Vivian led a group of African Americans to the

courthouse steps to register to vote. Vivian made a clear and unyielding case for their right to vote

but was met by Sheriff Jim Clark, the same man who later led the assault on the peaceful marchers

on the Edmund Pettus Bridge. Rev. Vivian was told to yield and then, with television cameras

rolling, punched in the mouth by Sheriff Clark, drawing blood. Rev. Vivian responded by

explaining that they were “willing to be beaten for democracy.”7 Today we hope that we have

moved past the need to be beaten or to bleed for democracy, but we just as assuredly know that we

must continue to fight for it.

 

6 See, e.g., Jonathan Brater, Kevin Morris, Myrna Pérez, and Christopher Deluzio, Purges: A Growing Threat to the 

Right to Vote, THE BRENNAN CENTER (July 20, 2018), https://www.brennancenter.org/publication/purges-growingthreat-right-vote. 7 Eyes on the Prize, “Bridge to Freedom,” PBS (Feb. 25, 1987), https://www.youtube.com/watch?v=nQT7S8fuzGc. 
300 An Assessment of Minority Voting Rights Access

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Commissioners’ Statements 301

Commissioner Karen K. Narasaki Statement, in which Chair Catherine E. Lhamon, ViceChair Patricia Timmons-Goodson, and Commissioner David Kladney Concur

In striking down the Voting Rights Act’s Section 4 coverage formula, the Supreme Court majority

opinion in Shelby County v. Holder reasoned that such “extraordinary legislation,”1 subjecting

some states to disparate scrutiny based on their history of racial discrimination, was no longer

justified because, in their view, “‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’

discrimination,”2 no longer existed in these states. In dissent, Justice Ruth Bader Ginsberg

observed that the Voting Rights Act “surely has not eliminated all vestiges of discrimination,” as

evidenced by the large numbers of proposed changes submitted by covered jurisdictions that

continued to be struck down as discriminatory.3 The ongoing necessity of rejecting these

jurisdictions’ desired changes demonstrated “that barriers to minority voting would quickly

resurface were the preclearance remedy eliminated.”4

As this report5 documents, the majority’s belief was misplaced and Justice Bader Ginsberg’s

observation proved prescient. Unleashed by the 5-4 decision, previously covered states and

counties rushed to enact or enforce laws that had been or would clearly have been prevented by

the Department of Justice under the Voting Rights Act. Several elections later, there is ample

evidence that some states and jurisdictions merit additional scrutiny and oversight because they

persist in taking actions that make it more difficult for minority citizens to register, to vote, and to

have their votes be counted.6 Voting discrimination has merely assumed seemingly benign,

modern forms enacted often with discriminatory intent in the guise of election integrity, just as

was happening before the passage of the Voting Rights Act over 50 years ago.

The facts show that in the face of our nation’s changing demographics, there are elected officials

who rather than work to win their vote are choosing instead to cling to power through claims of

voter fraud. Conservative jurist Judge Richard Posner, who initially7 accepted these claims, now

 

1 570 U.S. 529 at 552 (2013). 2 Id. at 554. 3 Id. at 563 (Ginsburg, J., dissenting). 4 Id.

5 I would like to thank the Commission’s Office of the Staff Director, Office of Management and its respective 

Divisions, Regional Programs Coordination Unit, Office of Civil Rights Evaluation, Office of the General Counsel, 

and State Advisory Committees, as well as our Special Assistants for their contributions in organizing and staffing 

the North Carolina briefing, SAC briefings, and for their work researching, drafting, and revising this report. I would 

also like to thank my law clerk Aime Joo from Harvard Law School for her work on this report and statement. 6 U.S. COMM. ON CIV. RIGHTS, An Assessment of Minority Voting Rights Access in the United States, at 274.

(findings) (2018) (“Voting discrimination continues to be more concentrated and persistent in some states and 

jurisdictions than in others.”) [hereinafter Report]. Please note page citations to the Report may be slightly off due to 

the final formatting of the Report.

7 Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 951 (7th Cir. 2007). Judge Posner, writing the opinion, 

framed the disproportionate impact Indiana’s contested voter ID laws may have on people of lower socioeconomic 

status as a political, rather than discriminatory, problem. The new restrictions merely “compell[ed] the [Democratic

Party] to devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the 
302 An Assessment of Minority Voting Rights Access

believes that they are “a mere fig leaf” to conceal the driving motivation of “disenfranchis[ing]

voters likely to vote for the political party that does not control the state government.”8 Just as

before the Voting Rights Act, rather than allowing minority voters to choose who will best address

their needs and concerns, these politicians are manipulating the system to choose their voters

instead.

It is no surprise that the overly stringent voter ID laws studied in our report are all largely enacted

by conservative-controlled states,9 where the voters blocked by these rules are largely minority

groups, who are “on the cusp of being able to exercise political power,”10 and are believed to lean

Democratic.11 It does not matter if these more stringent voting restrictions are implemented for

“partisan gain,” and not to explicitly disfranchise minorities.12 As closely intertwined as race and

political affiliation increasingly are, the use of “partisanship as a proxy for [race]” may itself be

intentional discrimination.13 Thus, this is not “politics as usual.”14 This is history repeating itself

through the targeting of minorities with “almost surgical precision”15 to prevent them from voting

for the other political party.16 This is what racial discrimination looks like in the 21st century.17

Sadly, more than 50 years after the passage of the VRA, its full force is still needed. True, first

generation forms of vote suppression have been eliminated,18 but by no means has discrimination

disappeared.19 Like a hydra, it has simply grown new heads and assumed new forms to replace the

manifestations that have been struck down.20 Literacy tests that arbitrarily bar minority voter

 

new law from bothering to vote.” Id. Any cost to the Democratic Party by the law “inducing eligible voters to 

disfranchise themselves,” id. at 952, was offset by the legislature’s legitimate interest in “enact[ing] reasonable 

regulations . . . to reduce election—and campaign—related disorder.” Id. at 954. 8 Frank v. Walker, 773 F.3d 783, 788 (7th Cir. 2014). Seven years after his Crawford opinion, Posner recognized the 

discriminatory impact, if not intent, of voter ID laws in Wisconsin. He rejected his earlier statements that 

legislatures were empowered to pass election regulations that disparately impacted minority voters in the name of 

election integrity. 9 Id. at 790-91. See also Report at 82. 10 Report at 230. See also N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204, 238 (4th Cir. 2016) 

(“The only clear factor linking these various “reforms” is their impact on African American voters. The record thus 

makes obvious that the “problem” the majority in the General Assembly sought to remedy was emerging support for 

the minority party. Identifying and restricting the ways African Americans vote was an easy and effective way to do 

so.”).

11 Frank, 773 F.3d at 791. 12 Report at 230. 13 Id. 14 Frank, 773 F.3d at 791. 15 Report at 58 (quoting McCrory, 831 F.3d at 214). 16 Id. at 68. 17 Id. at 66 (quoting McCrory, 831 F.3d at 233) (“Even if done for partisan ends, that constituted racial 

discrimination”). 

18 Id. at 17-19. 19 Id. at 275 (findings) (“After decades of resistance and overt discriminatory actions on the part of officials in 

several states and local jurisdictions, the Section 5 ‘preclearance’ provisions of the VRA proved necessary to deal 

with persistent and adaptive voting discrimination, because litigation was slow and ineffective in stopping racially 

discriminatory election practices until after an election had taken place.”). 20 Shelby Cty., 570 U.S. at 560 (Ginsburg, J., dissenting).
Commissioners’ Statements 303

registration are gone, but challenges to voters on the rolls still permit voters—likely to be easily

identifiable minorities—to be purged or denied registration, in some instances even without proof

that the challenge against them is valid.21 Poll taxes are unconstitutional, but voter ID laws still

force minority voters, who are more likely be poor and to lack a government-issued ID or the

documents needed to obtain one, to expend time and money that many cannot afford.22 These

difficulties are exacerbated by aggressive voter purges that rely on problematic systems like

Crosscheck, which flag people simply by comparing full names and birthdays of registered voters

across states, disproportionately removing citizens of color who are more likely to share common

names.23

“[T]he 15th Amendment guaranteed all U.S. citizens the right to vote regardless of ‘race, color, or

previous condition ofservitude,’”24 but practices like requiring documentary proof of citizenship,25

cutting early voting,26 purging voters for inactivity,27 closing polling places without notice,28 and

denying language assistance29 all make exercising that Constitutional right much more difficult for

minority voters.

And, what is more, the Supreme Court has gutted the federal government’s ability to protect voters

of color from the states with a continuing history of discrimination by eviscerating the enforcement

of Section 5 of the VRA, the solution “uniquely tailored to [the] unique problem” of voter

discrimination.30 The Shelby majority was correct that Section 5 was “extraordinary legislation”

needed to correct an extraordinary fault.31 They were profoundly incorrect that the need for such

extraordinary measures has passed.

 

21 Report at 132-41 (discussing challenges of voters to the rolls). 22 Id. at 77-99. The cost of obtaining a government-issued ID can range from $75-$175, which is greater than the 

cost of the original poll tax after adjusting for inflation. See id. at 89. 23 Id. at 280 (findings) (“Aggressive purges of voter rolls, particularly when based on flawed systems like 

Crosscheck, will improperly remove many voters and may improperly remove a disparate amount of minority 

voters.”). See also id. at 107-10. In at least one survey of suspended voters in Kansas, people with foreign sounding 

names were more likely to be flagged as ineligible voters, potentially requiring them to produce documentary proof 

of citizenship to avoid being purged. Id. at 117-18. 24 Id. at 10. 25 Id. at 122-32. 26 Id. at 155-64. 27 Id. at 151-54. 28 Id. at 165-80. 29 Id. at 180-90. 30 Briefing Transcript, supra note 234, at 33 (statement by Justin Levitt, Professor, Loyola L. Sch). See also Report 

at 275 (findings) (“After decades of resistance and overt discriminatory actions on the part of officials in several 

states and local jurisdictions, the Section 5 ‘preclearance’ provisions of the VRA proved necessary to deal with 

persistent and adaptive voting discrimination, because litigation was slow and ineffective in stopping racially 

discriminatory election practices until after an election had taken place.”). 

31 Shelby Cty., 570 U.S. at 552. 
304 An Assessment of Minority Voting Rights Access

It is simply untrue that other provisions of the VRA are adequate to ensure their rights are

safeguarded.32 Section 5 held a unique prophylactic power absent from other VRA protections.33

By requiring jurisdictions to defend their desired changes, preclearance not only forced states to

think through the consequences of their actions, but also provided officials the leverage needed to

deny discriminatory proposals in the face of powerful political pressure.34 Ironically, some

witnesses cite to the fact that voter turnout did not suffer as much as expected,35 ignoring the

enormous investment made necessary by Shelby in volunteer and staff time by community-based

organizations and civil rights legal groups to monitor and challenge what county and other local

voting officials were doing; lawsuits that forced legislators to modify their initial legislation; and

intensive outreach to educate and assist minority voters because the federal government could no

longer adequately protect their right to vote.36

The further genius of Section 5 was the understanding that some jurisdictions are chronic

offenders,37 and that the harm from vote suppression is irreparable and cannot be remedied posthoc. Unlike other harms that may be rectified through the courts by compensating plaintiffs with

monetary damages, real remedies are unavailable when it comes to violated voting rights. As we

observed38, once an election has been held—fairly or not—the result cannot be undone.39

Litigation takes too long to stop the discriminatory measures from going into effect, and

preliminary injunctions are seldom granted.40 Those officials who seek to subvert democracy have

incentive to act even knowing that their actions violate the Constitution or what is left of the Voting

Rights Act because they know that the election will not be undone and they will be able to hold

 

32 Report at 277 (findings) (“In the face of ongoing discrimination in voting procedures enacted by states across the 

country, enforcement and litigation under Section 2 of the VRA is an inadequate, costly, and often slow method for 

protecting voting rights.”). Opponents of reviving Section 5 contend that even after the Shelby decision, the VRA 

“remains a powerful statute whose remedies are more than sufficient” to combat voting discrimination. See von 

Spakovsky Testimony, Briefing Transcript, supra note 234, at 27. 33 Report at 40-42. 34 See Report at 215-16 (“DOJ requests for further information that led to the prevention or modification of a 

discriminatory voting change . . . may be valuable indicia that discrimination was prevented, or that preclearance 

was effective.”).

35 Report at 200-10. 36 Id. at 54 (Shelby “shift[ed] the burden of monitoring election changes to voting rights groups, and impos[ed] a 

large burden on communities, who must now stretch limited resources to track changes themselves in the absence of 

government transparency”); see also footnote 309 (summarizing litigation and various election board monitoring 

and education programs).

37 Id. at 40-45. Section 2 litigation after Shelby illustrates that formerly covered jurisdictions are still some of the 

worst culprits of voter discrimination, with more than half of all successful Section 2 litigation occurring in these 

historical offender states. Id. at 223-28. 38 Report at 56 (“In both North Carolina and Texas, multiple elections were held, during which practices were 

applied that federal courts determined to have been intentionally racially discriminatory and in violation of 

longstanding constitutional and federal law.”)

39 Briefing Transcript, supra note 234, at 33 (statement by Justin Levitt). 40 Report at 231-34. Not only is voting rights litigation notoriously cumbersome, it also burdens the victims with a 

large informational disadvantage. See id. at 276 (findings) (“The burden of proving voting discrimination now lies 

with a plaintiff and not the jurisdiction proposing the change even though the jurisdiction has easier access to data 

and analysis regarding the impact of a particular change and evidence of discriminatory intent.”). 
Commissioners’ Statements 305

onto office and move their agenda forseveral years while litigation is pending. Moreover, the harm

from vote suppression is twofold. Not only is the will of the people subverted, but also each

individual’s inherent right to vote is transgressed. Even if the suppressive rules would have failed

to change election outcomes, an injury has nonetheless occurred. Section 5 was specifically

designed to be an “extraordinary remedy,”41 precisely because Congress recognized that people

willing to suppress votes to stay in power will always be seeking new ways to accomplish that

goal,42 and once their schemes were successful, its victims will have suffered an irreversible harm.

This was true in 1965, remains true today, and will be true in the foreseeable future. Congress can

and should correct the Supreme Court’s mistake. It is abundantly clear that “the most fundamental

right in our democratic system”43—the right to a fair and equal vote—is under siege in several

states and jurisdictions, and given that reality state sovereignty is not an inviolable right.

For the vast majority of Americans, voting is a fairly easy process, and so it is easy to miss the fact

that there are barriers for others. Some states have realized that their process for registration and

voting is not easy for all Americans, and these jurisdictions are rightfully working on increasing

access to the ballot for those marginalized voters.44 Unfortunately, other states are perpetuating the

illusion that voting is simple for all citizens, while quietly raising the barriers for low-income and

minority voters to cast their ballots. Regardless of why the increased obstacles to the right to vote

are implemented, these measures inevitably result in voter discrimination.

Our recommendations lay out guiding principles the Commission believes are essential for

stopping persistent practices of voter suppression and discrimination. They also follow this

Commission’s long history since its inception in 1957 of investigating voting rights violations and

advising Congress and the Executive on ways to address these problems, including solutions

incorporated into the Voting Rights Act.45 The recommendations made in this report are just as

needed for consideration and adoption as those we have made in the past.

As President Lyndon B. Johnson asserted in his Special Message to Congress supporting the

Voting Rights Act, guaranteeing each citizen’s equal right to vote involves “no constitutional issue

. . . no moral issue . . . [and] no issue of States rights or national rights. There is only the struggle

for human rights.”46 And while marginalized communities are sadly—as they too often are—the

canaries in a coal mine, and thus suffer the most immediately and significantly from voter

 

41 Ari Berman, Give Us The Ballot: The Modern Struggle For Voting Rights In America (2015) (New York: 

Picador), at 171 (stating that Justice Marshall, in his City of Rome v. United States decision, held that Section 5 did 

not require finding discriminatory purpose, because it was designed to combat “persistent and intractable voting 

discrimination” and an intent requirement would undermine this objective). 42 Report at 39-40. 43 Shelby County, 570 U.S. at 556 (Ginsburg, J., dissenting). 44 See Appendix C, Automatic Voter Registration. 45 See Appendix A (discussing the Commission’s 1961 report’s impact on the VRA). 46 President Lyndon B. Johnson, “Special Message to Congress: The American Promise,” March 15, 1965, 

http://www.lbjlibrary.org/lyndon-baines-johnson/speeches-films/president-johnsons-special-message-to-thecongress-the-american-promise. 
306 An Assessment of Minority Voting Rights Access

suppression, we as a nation must recognize that this is not simply a minority problem. It is “an

American problem.”47

This country has made progress since the Voting Rights Act was passed, and that progress should

rightly be celebrated and acknowledged. But we have yet to fully “overcome the crippling legacy

of bigotry and injustice.”48 The continued protections of Section 5 and a new preclearance

coverage formula are essential if we are to accomplish that goal. Over 50 years ago, our leaders

recognized the critical and systemic threat of vote suppression to a fair and strong democracy and

took action. The same leadership and resolve is needed again. Fifty years from now, the court of

history will judge this pivotal moment as one in which our leaders chose decisively to act, or one

in which they failed to live up to our nation’s sacred ideals of democracy. I hope that we will all

be able to celebrate that today’s leaders made the right choice.

 

47 Id. 48 Id.
Commissioners’ Statements 307

Commissioner Michael Yaki Statement, in which Chair Catherine E. Lhamon Concurs

If there is a sine qua non of the U.S. Commission of Civil Rights, it is the right to vote. One of the

early achievements of the Commission—in 1961—was its report on voting rights1, which became

the factual predicate for the legislation that became the Voting Rights Act of 1965.

In recent years, this Commission has fallen short of its historic charter. In 2006, under a

conservative majority, the Commission refused to even endorse the reauthorization of Section 5,

which had received overwhelming support in the Congress.2 In 2012, with the Commission split

evenly on ideological lines, the Commission’s milquetoast analysis of the Census and Section 5

fell flat.3 Both, in their own deficiencies, seemed to portend the seismic shift—parroting, in many

ways, on the flawed logic of both reports, the decision in Shelby.

4

Shelby is a stain on the fabric of civil rights in this country. It has given license to the same forces

and constituenciesthat obstructed and diminished the rights of minority voters, albeit through more

creative but no less onerous means. As the record in this report shows, racial gerrymandering5,

voter registration purges6, restrictive voter ID laws7, the termination of early voting8 and

decreasing access to the polls9 have been unleashed because of the loss of the preclearance

protections of Section 5 of the Voting Rights Act.

This Report rectifies the research and analytical flaws of our recent past, but in many ways it is a

pyrrhic victory. Even more sad, we saw this coming. Beginning with the Bossier II decision in

200010, a majority of the Supreme Court has steadily weakened the commitment to enforce the

right to vote. We see our judicial system being filled with jurists cut from the same philosophical

cloth, who belong to or are given a seal of approval by the Federalist Society and the like for the

sole purpose of tearing down the precedents on race set since the 1954 Brown decision. Most

recently, many of these same organizations were proclaiming that the election of President Obama

brought about a “post-racial” society while at the same time they used this as a justification to

dismantle the structural elements that brought down the barriers and provided access to many

voters of color to the polls in 2008 and 2012.

The ability of state and local governments and governmental officials to flout the Voting Rights

Act, knowing that litigation under Section 2 is costly and time-consuming, makes is impossible to

provide comprehensive coverage to every jurisdiction engaged in voter suppression and

 

1 U.S. Comm’n on Civil Rights (USCCR), U.S. Comm’n on Civil Rights Report, Book 1: Voting, 1961.

2 U.S. Comm’n on Civil Rights (USCCR), Voting Rights Enforcement & Reauthorization (2006), at 91, dissent of 

Commissioner Yaki and Commissioner Melendez. 

3 U.S. Comm’n on Civil Rights (USCCR), Redistricting and the 2010 Census: Enforcing Section 5 of the Voting 

Rights Act—2012 Statutory Report, 2012, at 137, Statement of Commissioner Yaki and Commissioner Kladney. 4 570 U.S. 529 (2013). 5 Report at 229, footnote 1329. 6 Report at 141-55. 7 Report at 74-99. 8 Report at 155-64. 9 Report at 164-95. 10 Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000). 
308 An Assessment of Minority Voting Rights Access

oppression. Shelby has turned the concept of voting rights on its head, where officials now work

to restrict, and not expand, the franchise. Worse, there is little attempt to conceal the racial animus

underlying these actions or the transparency of their actions to block the franchise and

empowerment of minorities. In this way, there is a direct line from Shelby to Charlottesville, where

alt-right, neo-Nazi, and hate groups, in their putsch-filled delusions, believe they can turn back the

clock and preserve the supremacy of their self-defined racial purity. When government is acting

under the color of law to enact the legal equivalant, it becomes a distinction without a difference.

Our nation is breaking, and there is precious little time to heal the wounds that are tearing the

fabric of our democracy asunder. This Report, for all its factual evidence that the Voting Rights

Act is being rendered a hollow shell of its former self, only has meaning if the Congress and the

President act upon its findings and recommendations. Enacting a rejuvenated and re-invigorated

Section 5 is one step; appointing judges who believe that the 14th Amendment gives Congress the

authority to enact it is another. This is not a question of liberal and conservative—those are

discussions that can and should be fought at the ballot box, and in the chambers and under the

domes of the Congress and state legislatures throughout this country. But there should not be any

debate, any discussion, any disagreement that every person, regardless of race, color, creed,

language, or disability, should be given every opportunity to cast a ballot in our country. Having a

nation whose government is voted upon and governed by the broadest and fullest spectrum of our

populace is a necessary first step towards achieving our more perfect union.

We would be wise to remember—as we should every day—the words of Dr. King:

So long as I do not firmly and irrevocably possess the right to vote I do not possess

myself. I cannot make up my mind—it is made up for me. I cannot live as a

democratic citizen, observing the laws I have helped to enact—I can only submit

to the edict of others.11

 

11 Martin Luther King, Jr., Give Us the Ballot, We Will Transform the South, PBS, 

http://www.pbs.org/pov/pov2008/election/wvote/king.html.
Commissioners’ Statements 309

Commissioner Gail Heriot Statement and Rebuttal

I found this report somewhat stronger than some recent Commission reports. It contains some

useful information. Nevertheless, it suffers from some substantial flaws. Consequently, I could

support neither the staff-generated part of the report nor the accompanying findings and

recommendations.1

I will try not to get into the minutiae of what I see as the report’s shortcomings—though some of

my disagreement comes from its treatment of Shelby County v. Holder2 and (in particular) the way

in which it touches on the possibility of post-Shelby County legislation. Chief Justice Roberts has

already ably explained the reasons for the Supreme Court’s decision. Others have defended the

position that additional legislation is not warranted at this time.3 Since this is not my area of

expertise, there is little I can add to the debate. Instead, I would like to make a few more general

(and somewhat scattered) points about voting rights and the enforcement of those rights. On some

of these points I suspect there will be substantial agreement.

THE IMPORTANCE OF VOTING RIGHTS

A good way to illustrate the importance of voting rights is to examine the behavior of actual

politicians: Most of them will work hard to gain the goodwill of their constituents. By and large,

that is a good thing. Non-voters, on the other hand, usually get less attention—except, as in the

case of children, when actual voters have very strong desire to benefit them.4

 

1 Because of a death in my family, I was unable to attend the telephonic meeting at which Commissioners voted on 

the report. For the record, I would have voted no. My understanding is that the report was adopted by a vote of 6 to 

0. All of those voting were appointed by Democratic office holders. 

2 570 U.S. 529 (2013). 

3 See, e.g., Ilya Shapiro, Don’t Use MLK to Push Harmful Election Laws, Forbes (January 22, 2014), 

https://www.forbes.com/sites/ilyashapiro/2014/01/22/dont-use-mlk-to-push-harmful-election-laws/#26b47492750a. 

Although there have been proposals, no additional legislation has been enacted. Congressional leaders may have 

adopted something akin to Shapiro’s position at least for the time being. That could, of course, change in the future. 4 Whether the lack of voting rights is a problem in need of a solution will depend on the nature of the case. These 

days it would be difficult to find Americans willing to defend the concept of excluding voters based on their race. 

But other reasons for denying a group the vote are much more defensible. For example, children are a large nonvoting population, but since parents almost always view themselves as protectors of their children rather than 

antagonists or competitors, this is rightly not viewed as a problem. The number of 8-year-olds with the maturity to 

exercise the franchise responsibly is certainly verging on zero if it is not actually zero.

Another non-voting population is non-citizens. For most people, this is in essence by definition. A citizen is a 

member of the polity; a non-citizen is not. There are various rights and responsibilities that follow from that. One 

could argue that resident non-citizens are “affected” by the decisions made by voting citizens and their 

representatives. That’s true. But it’s also true of non-resident citizens. We live in an inter-connected world. Our 

nation’s policies on foreign aid, immigration, and trade often have a profound effect on individuals around the 

world. Yet (so far) no one has argued that non-resident, non-citizens should have a say in the political decisionmaking of a country. (Indeed, the current investigation into whether Russia attempted to influence the 2016 election 

demonstrates the general consensus that non-resident, non-citizens should have no right to influence elections.) 
310 An Assessment of Minority Voting Rights Access

Consider the case of Senator Thomas E. Watson of Georgia (1856-1922), whose political (and

journalism) career spanned many decades, beginning prior to the disfranchisement movement in

the South and concluding after disfranchisement was a fait accompli. The Tom Watson of the

1880s was a passionate fusion populist, seeking to unite poor whites and poor African Americans

in order to gain what he saw as their fair share of the South’s then-meager resources.5 For reasons

 

Where a polity chooses to draw the line (or, put differently, how it chooses to define “citizen” for the purposes of the 

franchise) may vary. But the fact that politicians will, all other things being equal, pay more attention to the citizen 

than to the non-citizen is considered by most to be a feature and not a bug. Once a non-citizen becomes a citizen, the 

commitment of the polity to him or her increases significantly, and so does his or her commitment to the polity.

Note that some American municipalities allow non-U.S. citizens to vote in municipal elections. Rachel Chason, 

Non-Citizens Can Now Vote in College Park, Md., Wash. Post (September 13, 2017). These municipalities are 

essentially defining “citizen” for municipal purposes differently from the federal government. There is no inherent 

reason that this cannot be done. Whether such an expansion of the electorate is permissible under the law in any 

particular state or locality is a subject beyond the scope of this report. I can offer only the observation that there are 

conflicts of interest between elected officials and existing voters in these matters. A requirement that such matters be 

put directly to the voters or a requirement that they secure a supermajority of the members of the municipal 

legislature would therefore hardly come as a surprise. 

A third population that is sometimes disfranchised is felons. In part this is an element of the felon’s punishment (and 

in part the motivation for it stems from a lack of confidence in the felon’s wisdom and from doubt that his or her 

interests are compatible with the polity’s). In an era that increasingly shrinks from incarceration, fines, and many 

other forms of punishment, stigmatizing felons by denying them the franchise is one of the milder punishments 

remaining. Objections come not so much from penologists as from political parties and activists who perceive, 

rightly or wrongly, that “the felon vote” will go to their coalition.

If the reason for felon disfranchisement were to deny as many African Americans the vote as possible rather than to 

deny felons the vote, this should be viewed as a Constitutional violation (even though Section 2 of the Fourteenth 

Amendment obviously anticipates that felons will be disfranchised in some states and that this will be permissible). 

See Const. amend. XV; Const. amend. XIV, § 2. But the argument that felon disfranchisement is simply a clever 

way to deny African Americans the vote without appearing to do so is weak. The first ten states to disfranchise 

felons were Kentucky (1792), Vermont (1793), Ohio (1802), Louisiana (1812), Indiana (1816), Mississippi (1817), 

Connecticut (1818), Alabama (1819), Missouri (1820), and New York (1821). There is no discernible pattern here. 

Some have questioned why these states took so long to disfranchise felons. If the states were not motivated by the 

existence of large populations of free African Americans in their midst, what was motivating them? Why didn’t they 

disfranchise felons a century earlier? The answer here lies in the 18th century conception of felonies: They were 

punishable by death. Consequently, it was seldom necessary to consider whether felons should be disfranchised. 

Dead men, regardless of race, don’t vote. See William Blackstone, IV Commentaries on the Laws of England 98 

(University of Chicago 1st ed. Facsimile 1979)(“The idea of felony is indeed so generally connected with that of 

capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now 

conform”). Moreover, prior to the ratification of the Fifteenth Amendment, a state that wanted to disfranchise 

African Americans could do so without resorting to an extraordinarily weak and clumsy proxy. 

5 The one Southern state in which fusion populism (in the form of an alliance of the Republican and Populist Parties) 

briefly took control of government was North Carolina. Unlike states in the Deep South, North Carolina had an 

African-American population of only about 35% in 1890. In addition, western North Carolina had a large population 

of small white farmers whose sympathies had been with the Union and who generally voted Republican. Together 

with members of the Populist Party, the group took control of North Carolina in the mid-1890s. Those who favored 

African-American disfranchisement usually saw it specifically as a way to defeat that coalition. See Michael 

Perman, Struggle for Mastery: Disfranchisement in the South 1888-1908 148-72 (2001). By contrast, in South 

Carolina, disfranchisement was spearheaded by Governor “Pitchfork” Ben Tillman, a Democrat with a strong 

populist streak, who feared the African-American vote would form an alliance with the “conservative” vote (i.e. 

what Tillman viewed as the Low Country landowning and commercial elite). See id. at 91-115.
Commissioners’ Statements 311

beyond Watson’s control, within a few years, African Americans had been effectively

disfranchised in Georgia.6 Attempting to appeal to the African-American vote was therefore no

longer a useful strategy for an ambitious office seeker like Watson. At that point, he began to voice

his approval of disfranchisement.7 By the 1910s and 1920s, Watson had morphed into one of the

most virulent racists one could ever encounter.8 Referring to “the Negro,” he remarked, “In the

South, we have to lynch him occasionally, and flog him, now and then, to keep him from

blaspheming the Almighty, by his conduct, on account of his smell and his color.”9 

Compare Watson’s career with that of Alabama Governor George Corley Wallace (1919-1998).

Wallace straddled the other end of the history of African-American disfranchisement. After being

elected governor for the first time, he said the following in his January 14, 1963 inaugural address:

 

That contrast illustrates the differing political currents leading to African-American disfranchisement in each state. 

See generally id. But if there is one unifying theme, it may be this: Political alliances were so fluid in the South 

during the 1890s that no one could state with certainty how they would turn out. Would African Americans and poor 

whites living in the Appalachian Mountains form an alliance? Or would the alliance be African Americans and the 

landowning and commercial elites of the Tidewater/Low Country/Black Belt counties? Or would alliances be 

formed on the basis of race? We all know that in the end it was the last of these alternatives. But that was by no 

means obvious in the politically and economically turbulent turn-of-the-century South. See generally Michael 

Perman, Struggle for Mastery: Disfranchisement in the South 1888-1908 148-72 (2001); J. Morgan Kousser, The 

Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South 1880-1910 (1974). 6 The Disfranchisement Movement in the South was a pivotal moment in American History. It began in earnest in 

about 1888, and came to head in each state in the South at different times. By the early 1900s, it had been mostly 

accomplished. See Michael Perman, Struggle for Mastery: Disfranchisement in the South 1888-1908 (2001). A few 

non-obvious things are worth noting here: (1) In many locations in the South (including Watson’s Georgia), the 

African-American vote had already been severely depressed on account of extra-legal violence and fraud (as well as 

laws that made that violence and fraud possible); this ultimately made things easier for the Disfranchisement 

Movement, which made disfranchisement an explicit part of state constitutions; (2) Many of those who advocated 

African-American disfranchisement would have preferred to disfranchise not just African Americans (most of whom 

were illiterate at the time), but also illiterate whites (of which there were many); they did not, however, always have 

the political clout to accomplish that end as to illiterate whites (though sometimes they did); (3) The movement was 

in part a reaction to the populism (and in particular fusion populism) of the late 19th century, in part a Progressive 

reaction to election fraud, and in part an effort to weaken the Republican party both locally and nationally; and (4) 

While raw racism was certainly part of the motivation for many, almost never did the laws relating to 

disfranchisement explicitly refer to race and some states (e.g., Arkansas and Tennessee) accomplished 

disfranchisement of African Americans mainly through the mechanism of the poll tax, which tended to depress the 

white vote too. See Perman at 5, 11-12, 19, 177; J. Morgan Kousser, Shaping of Southern Politics 250-57 (1974). 

Also see Sheldon Hackney, Populism to Progressivism in Alabama 147 (1969); Jack Temple Kirby, Darkness at the 

Dawning: Race and Reform in the Progressive Party 4 (1972); Dewey W. Grantham, Southern Progressivism: The 

Reconciliation of Progress and Tradition (1983).

7 Thomas E. Watson, The New Georgia Encyclopedia, http://www.georgiaencyclopedia.org/articles/historyarchaeology/thomas-e-watson-1856-1922. 8 For those who regard the Soviet Union and Nazi Germany as representing opposite ends of the political spectrum, 

Watson’s transformation from class-based to race-based fanaticism may seem surprising. For those who regard the 

two as close cousins, his transformation seems far less remarkable. 9 Michael Newton, White Robes and Burning Crosses: A History of the Ku Klux Klan from 1866 38 (2014) (italics 

added).
312 An Assessment of Minority Voting Rights Access

In the name of the greatest people that have ever trod this earth, I draw the line in

the dust and toss the gauntlet before the feet of tyranny, and I say segregation now,

segregation tomorrow, segregation forever.

10

But that was before the success of the Voting Rights Act of 1965. In just a few short years, AfricanAmerican voter registration had skyrocketed in Alabama. By the 1970s, he was asking forgiveness

for his past sins.11 And, in a remarkable turn of events, he largely received it. He was re-elected to

a third term as governor in 1982 with a huge share (90%) of African-American votes.12

Colman McCarthy was among those who thought Wallace’stransformation to be sincere. He wrote

in 1995:

In the annals of religious and political conversions, few shiftings were as unlikely

as George Wallace's. In Montgomery, Ala., last week, the once irrepressible

governor—now 75, infirm, pain-wracked and in a wheelchair since his 1972

shooting—held hands with black southerners and sang “We Shall Overcome.”

What Wallace overcame is his past hatred that made him both the symbol and

enforcer of anti-black racism in the 1960s. On March 10, Wallace went to St. Jude's

church to be with some 200 others marking the 30th anniversary of the Selma-toMontgomery civil rights march.

It was a reaching-out moment of reconciliation, of Wallace's asking for—and

receiving—forgiveness. In a statement read for him—he was too ill to speak—

Wallace told those in the crowd who had marched 30 years ago: “Much has

transpired since those days. A great deal has been lost and a great deal gained, and

here we are. My message to you today is, welcome to Montgomery. May your

message be heard. May your lessons never be forgotten.”

In gracious and spiritual words, Joseph Lowery, a leader in the original march and

now the president of the Southern Christian Leadership Conference, thanked the

former separatist “for coming out of your sickness to meet us. You are a different

George Wallace today. We both serve a God who can make the desert bloom. We

ask God's blessing on you.”13

McCarthy wrote that Wallace “was using his waning political power to bond with those he once

scorned.” And maybe he was right about Wallace’s sincerity. But whether Wallace was sincere or

 

10 George Wallace’s 1963 Inaugural Address, Wikipedia,

https://en.wikipedia.org/wiki/George_Wallace%27s_1963_Inaugural_Address (italics added). 11 George C. Edwards, Martin P. Wattenberg & Robert Lineberry, Government in America: People, Politics and 

Policy 80 (14th ed. 2009)(Wallace stated in 1979 in connection with his infamous stand in the schoolhouse door, “‘I 

was wrong. Those days are over, and they ought to be over.’”).

12 Id. 13 Colman McCarthy, George Wallace—From the Heart, Washington Post (March 17, 1995), 

https://www.washingtonpost.com/wp-srv/politics/daily/sept98/wallace031795.htm?noredirect=on.
Commissioners’ Statements 313

insincere, there is a simpler point: In a reasonably well-functioning democratic republic, successful

politicians spend a lot of time trying to please voters; they seldom spend as much time trying to

please non-voters. In Wallace’s final term as governor, he appointed more than 160 blacks to state

governing boards. He worked to double the number of black voter registrars in Alabama's 67

counties and hired African Americans as staff members.

14 In that sense at least, he was a changed

man.15

The lesson? At least from the standpoint of discrete and insular groups that are sufficiently large

to matter on Election Day, the right to vote may well be our most important right.16 Without it,

everything else will be in jeopardy.17 The Jim Crow Era in Watson’s Georgia and Wallace’s

Alabama, with its unhinged devotion to racial segregation, would have been unthinkable without

disfranchisement.18 Many of the Deep South’s laws designed to keep African Americans working

on the plantation (instead of migrating north where their prospects were often better) would have

been similarly impossible.19

 

14 Id. 15 In some ways this was a return to Wallace’s early career as a judge on the Third Judicial Circuit of Alabama. 

There, interestingly enough, he had a reputation for being fair regardless of the race of the litigants before him and 

for being courteous to African-American attorneys. As a result, in his initial (failed) run for governor in 1958, he 

was endorsed by the NAACP. It is said that he attributed his loss to the perception that he was “liberal” relative to 

his opponent on race issues (although he put it in much cruder terms). It is further said that he vowed not to let that 

perception stand in the way of his election again. See https://en.wikipedia.org/wiki/George_Wallace. 16 The group need not be large. American political parties are coalitions (although the coalitions are constantly 

changing and re-organizing themselves). Even a small group, especially if it is well-organized and cohesive, can be 

the difference between victory and defeat, and hence courting such a group can be well worth a politician’s or a 

party’s time.

17 Indeed, in a nation like ours, where government has its fingers in all sorts of pies, the franchise can be important 

not just to protect rights, but also to protect patronage. Members of a disfranchised group are less likely to get 

government jobs or contracts. Government projects—from parks to roads to utilities—are less likely to be located or 

improved upon in the areas where those members will benefit from them.

18 It is interesting to compare African-American disfranchisement with the era prior to the enfranchisement of 

women. Unlike African Americans at the time, women as a class could not be described as “insular.” Most women 

lived in families that included both men and women. The argument against women’s suffrage was frequently that 

husbands, fathers and sons could be trusted to look after the interests of women outside the home, while women 

looked after the interests of their menfolk inside the home. Yet it is hard to avoid noticing that legislation that 

purported to protect working women from strenuous work or long hours was often advocated by men-only unions 

whose members were in competition with women for jobs and that women themselves were in no position to vote. 

See Muller v. Oregon, 208 U.S. 412 (1908). Of course, Progressive women often supported such legislation too. But 

those lobbying for such legislation were seldom working women; more often, they were members of the uppermiddle class. See Suzanne LaFollette, Concerning Women (1926). Whether women are well served by protectionist 

legislation has been a major theme in feminist literature of the 20th century. My point here is simply that the heyday 

of such legislation was during a period that women were unable to vote in many parts of the country.

19 These laws were at least as destructive as the Jim Crow laws. But they get considerably less attention today. See, 

e.g., Williams v. Fears, 179 U.S. 270 (1900)(upholding an 1898 prohibitive tax on labor recruiters in Georgia); 

David E. Bernstein, The Law and Economics of Post-Civil War Restrictions on Interstate Migration by AfricanAmericans, 76 Tex. L. Rev. 781 (1998). 

See also Benno Schmidt, Jr., Peonage in The Oxford Companion to the Supreme Court of the United States 729 

(Kermit Hall, et al., eds. 2005). In order to abolish peonage, the laws that made peonage possible had to be 
314 An Assessment of Minority Voting Rights Access

The right to cast a ballot must therefore be guarded with great care. That will come as a surprise

to no one. Unfortunately, it doesn’t answer any of the hard questions: For example, what

constitutes great care in this context? Along with the right to the ballot is the right to have one’s

ballot count, which requires the exclusion of those who are not entitled to a ballot.20 Policies that

are intended to facilitate the right to cast a ballot—like early voting and requirements that election

officials take the voter’s word for his or her identity—can increase the likelihood of voter fraud.

We know there have been problems in North Carolina—the state that received the most attention

in this report. One election had to be run again in order to ensure its integrity.21

 

dismantled one by one—a task that involved multiple trips to the Supreme Court by both the United States and 

private litigants. See Pollock v. Williams, 322 U.S. 4 (1944)(and cases cited therein). 20 Opponents of voter ID laws frequently argue that cases of voter impersonation (the kind of fraud most obviously 

prevented by such laws) are very rare. While it is impossible to say for sure, I strongly suspect they are right. But 

even the fiercest critics of voter ID laws, like Justin Levitt, agree that some cases occur. See Justin Levitt, A 

Comprehensive Investigation of Voter Impersonation Finds 31 Credible Incidents Out of One Billion Ballots Cast, 

Washington Post (August 6, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/08/06/a-comprehensiveinvestigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballotscast/?utm_term=.e42a723f0d09. 

On the other hand, otherwise qualified voters lacking in an ID are also uncommon. And those who cannot acquire 

one without unreasonable inconvenience are very rare indeed. Efforts to estimate the numbers of those without IDs 

by comparing voting rolls with driver’s license and other ID lists are prone to over-estimation. Voting rolls are often 

heavy with individuals who have recently died, moved out of the jurisdiction, or become incapacitated. Driver’s 

license lists are more up to date. The best solution for the cases of no ID that do exist may be for political activists in 

those jurisdictions that choose to have voter ID laws to assist them in securing an ID. 

Moreover, opponents of voter ID laws should take into consideration the fact that voter ID laws help combat other 

kinds of voter fraud too. Consider the example of a felon in a jurisdiction where felons are not permitted to vote. He 

may be perfectly aware that he is not entitled to vote, but may be willing to chance it anyway, thinking that if he is 

caught after the fact he will simply deny that he was the person who showed up at the polling station. This is a lot 

riskier in a jurisdiction that requires the presentation of an ID. Prosecuting authorities are unlikely to believe the “It 

wasn’t I” defense. The point holds true for other kinds of individuals (e.g., non-citizens) who manage to register but 

are not entitled to vote.

Unlike the case of voter impersonation, cases of felons voting in jurisdictions where they are not entitled to vote 

appear not to be rare at all. See Byron York, When 1,099 Felons Vote in Race Won by 312 Ballots, Washington 

Examiner (August 6, 2012) (referring to the 2008 Senate race in Minnesota), 

https://www.washingtonexaminer.com/york-when-1-099-felons-vote-in-race-won-by-312-ballots. See also John 

Fund & Hans von Spakovsky, Who’s Counting (2012) (detailing various kinds of voter fraud and other kinds of 

election irregularities across the country).

21 See Mark Binker, New Election Ordered in Pembroke, WRAL (December 20, 2013), https://www.wral.com/newelection-ordered-in-pembroke/13237755/. 

Commissioner Narasaki writes in her Statement that “once an election has been held—fairly or not—the result 

cannot be undone.” I agree that running an election again is a rarely-invoked remedy (in part because the margin of 

victory for the winning candidate is rarely so small as to leave the proper outcome in doubt). But, as in the 

Pembroke case, it does happen. Bell v. Southwell, 376 F.2d 659 (1967), is an especially well-known example. 21 See, e.g., Tyler O’Neil, Hillary Clinton Says Supreme Court Nominee Brett Kavanaugh Will Bring Back Slavery, 

PJ Media (July 13, 2018)(“‘I used to worry that they [the Republicans] wanted to turn the clock back to the 1950s. 

Now I worry they want to turn it back to the 1850s.’”); Biden Tells African-American Audience GOP Ticket Would 

Put Them “Back in Chains,” CBS News (August 14, 2012), https://www.cbsnews.com/news/biden-tells-africanamerican-audience-gop-ticket-would-put-them-back-in-chains/. 
Commissioners’ Statements 315

On the other hand, requirements that voters present an ID can exclude the occasional voter who

does not have an ID and cannot get one except at great inconvenience. How do we reconcile those

two competing considerations? It isn’t always easy, and intemperate statements about the motives

of members of the opposing party don’t make it any easier. 22 As Thomas Sowell is fond of saying,

“There are no solutions. There are only trade-offs.”23 For what it’s worth, large majorities of

 

I should also mention in this context Commissioner Yaki’s ill-considered statement about the Federalist Society for 

Law and Public Policy. The Federalist Society is an organization of conservative, libertarian and classically liberal 

lawyers, law students and law professors. It has about 65,000 members, including many of the nation’s most 

distinguished jurists. It also happens to include both Commissioner Kirsanow and me as well as most center-right 

attorneys of my acquaintance. Not only do its members not fit the description Commissioner Yaki gives them, the 

organization has been described in quite positive terms by individuals usually viewed as left of center. For example:

“For over a decade, I have been privileged to be involved in Federalist Society events, and it’s a really 

interesting thing that they have seen fit to invite me even though I generally don’t think like them on a lot of 

things, and the quality of the speakers and the free-for-all discussion is unparalleled, so it’s really been a 

privilege.”—Neal Katyal, Acting Solicitor General (Obama Administration).

“I think one thing your organization has definitely done is to contribute to free speech, free debate, and most 

importantly, public understanding of, awareness of, and appreciation of the Constitution. So that’s a marvelous 

contribution, and ... in a way I must say I’m jealous at how the Federalist Society has thrived in law 

schools.”—Nadine Strossen, Professor of Law, New York Law School & Former President, American Civil 

Liberties Union. 

“[T]he Federalist Society has brought to campus the commitment to real, honest, vigorous, and open discussion. 

It is a result of the works of the Federalist Society to create a wonderful environment for discussing social, 

political, legal and constitutional issues.”—Paul Brest, Professor of Law & Former Dean, Stanford Law School.

The Federalist Society’s programs are not held in secret; even Commissioner Yaki is welcome. It is one of the most 

open organizations I have ever known. And it strives to include speakers from across the ideological spectrum in its 

panel discussions. I can recall only one occasion when a panel on which I was a speaker was not balanced (only 

because the liberal speaker failed to show up). Although, as a speaker, I had already given my own view on the topic 

(which was a more conservative view), I spontaneously got up and gave the liberal point of view too, just to make 

sure that the Federalist Society maintained its tradition of presenting the many sides of each issue. 

By contrast, I once witnessed an official of the supposedly “mainstream” Association of American Law Schools 

aggressively bar a conservative staff member of this Commission from attending one of its programs. The official 

who did so made it clear she believed that the staff member was somehow there to spy on the speakers (every last 

one of whom was so far to the left that the average American would need a telescope to see them). In fact, the staff 

member, who had traveled from Washington to New York for the event, was there to scout out left-of-center 

speakers to invite to the Commission’s September 15, 2010 national conference. Like the Federalist Society, but 

unlike the AALS, the Commission’s Chairman at the time, Gerald Reynolds, although a conservative himself, 

strongly preferred for the conference to include speakers with an array of viewpoints. 

The AALS is also famous for having brought in over 20 speakers to discuss the then-recent passage of California’s 

Proposition 209 (which prohibited discrimination or preferential treatment on the basis of race, sex, or ethnicity in 

public employment, public contracting and public education). Every last one of the speakers opposed the initiative; 

not a single supporter was invited to speak, despite the fact that several law professors who had worked on the 

campaign, including me (the campaign’s statewide co-chair), were present at the meeting). See also Charles Fried, 

“Diversity”: From Left to Far Left, Washington Post (January 3, 2000)(comparing the AALS’s lack of viewpoint 

diversity in panel presentations to the Federalist Society’s strong viewpoint diversity). Something has happened to 

organizations that are supposedly mainstream in the last 25 years. And it isn’t good. 

23 Fox News Interview of Thomas Sowell, https://www.youtube.com/watch?v=3_EtIWmja-4&feature=youtu.be.

The extent to which the various Statements of my Commission colleagues fail to address these tradeoffs is 

disheartening. The soaring rhetoric they employ makes it all sound so easy: If only nice people were in charge of 
316 An Assessment of Minority Voting Rights Access

Americans think that both voter ID requirements and early voting are reasonable methods of

conducting elections.24

It’s not just first-order questions that are difficult: Exactly who should have the power to protect

the right to cast a ballot? Who should decide which trade-offs to make?25 If too much power is

 

the nation, everything would be fine. Alas, it’s not that easy. I like soaring rhetoric as much as the next person ... 

well almost as much. But sooner or later one must get down the job of conducting fair and free elections, which 

requires reconciling oneself to the imperfect world we live in.

William Blackstone famously said, “it is better that ten guilty persons escape than that one innocent suffer.” He is 

did not say that is better for 100,000 guilty persons go free rather than one innocent suffer imprisonment, and I 

would venture to say he would not have been willing to put such a large thumb on the side of innocence. What is 

the right tradeoff between the inclusion of eligible voters and the exclusion of fraudulent votes? I don’t know the 

answer to that question. But at least I acknowledge that it’s a real question. 

My colleagues are apparently of the view that serious election fraud is fairly rare in this country. And I am inclined 

to believe they are right about that. May it ever be so. But as Americans we are lucky in this respect. Fraudulent 

elections in other parts of the globe are the rule rather than the exception. See, e.g., Bernd Beber & Alexander 

Scacco, The Devil Is in the Digits: Evidence that Iran’s Election Was Rigged, Washington Post (June 20, 2009); 

Dany Bahar, A Fraudulent Election Means Even More Problems for Venezuela, Brookings Institute Podcast (May 

22, 2018); Kim Sengupta, Zimbabwe Elections: Opposition Politician Arrested Amid Allegations of Voting Fraud: 

Senior Official in MDC is Seeking Political Asylum, After Claiming Poll Results Were Rigged, The Independent 

(August 8, 2017). 

Moreover, election fraud was once common here too. See, e.g., John F. Reynolds, A Symbiotic Relationship: Vote 

Fraud and Electoral Reform in the Gilded Age, 17 Soc. Sci. Hist. 227 (1993); Denis Tilden Lynch, “Boss” Tweed: 

The Story of a Grim Generation (2017); Pamela Colloff, What Happened to the Ballot Box that Saved Lyndon 

Johnson’s Career?, Texas Monthly (November 1998); Robert A. Caro, Means of Ascent: The Years of Lyndon 

Johnson (1990); T. Harry Williams, Huey Long (1969); Mike Royko, Boss: Richard J. Daley of Chicago (1971). 

It feels like my colleagues want it both ways. On the one hand, even though the racially-motivated voter exclusion 

and voter intimidation they fear is now rare, they refer back to a period before some of them were born as proof we 

must be ever-vigilant. And, yes, we must. But, on the other hand, they scoff at the notion that we must be vigilant 

about election fraud too, even though that is also part of our history. And like racism, election corruption has never 

been entirely eradicated.

24 See, e.g., Four in Five Americans Support Voter ID, Early Voting, Gallup Poll (August 22, 2016), 

https://news.gallup.com/poll/194741/four-five-americans-support-voter-laws-early-voting.aspx. 25 The North Carolina ID case may be an example of how partisanship may, whether consciously or unconsciously, 

affect one’s perceptions. The North Carolina legislature is majority Republican and was accused by the plaintiffs in 

that case (led by the North Carolina NAACP) of targeting racial and ethnic minorities. Okay, maybe. Since I have 

not carefully read through the record in that case, I am not in a good position to judge. 

Here’s what I can say: The trial judge (appointed by George W. Bush) found no such intent. The appellate judges 

(two appointed by Barack Obama and one by William Jefferson Clinton), not only found such an intent, they stated 

that the statute targeted racial and ethnic minorities “with almost surgical precision.” None of that is comforting.

The Supreme Court declined to take the case and hence neither agreed not disagreed with the decision of the Court 

of Appeals. In retrospect, I am glad the Supreme Court denied the petition for certiorari. If it had taken the case and 

issued one of the 5-4 decisions for which it has become famous, reversing the Court of Appeals, it would have 

meant that every judge involved in the case voted along party lines. The issue isn’t worth the appearance of that 

kind of partisanship. 

But here is what I find troubling about the case: While I do not think I or my colleagues have enough information to 

second-guess the differing results in the case, I do know enough to say the Court of Appeals is engaged in serious 

hyperbole in saying that the statute targeted minorities “with almost surgical precision.” It’s a highly quotable turn 

of phrase, but it happens not to be true. Even the NAACP’s own expert witness (whose numbers I believe were 
Commissioners’ Statements 317

concentrated in the hands of a single authority (whether it is the federal government or a local

registrar, an executive officer or a judicial one), abuses are sure to follow.26 This, I believe, is one

of the shortcomings of this report. The assumption lurking behind some of its conclusions is that

all would be well if the federal government (in the form of the Voting Section of the Civil Rights

Division of the U.S. Department of Justice) were the primary arbiter of what is appropriate and

what is not.27 But is it true? Are state and local authorities really the only ones that act out of

partisan or other inappropriate motives? What if it’s also the attorneys at the Voting Section of the

Civil Rights Division who need to be watched carefully?28 

 

inflated) estimated that African-American voters without IDs number about 6% while white voters without ID 

number about 2.5%. If that’s considered anything close to surgical precision in the Fourth Circuit, I intend to make 

sure my loved ones never undergo surgery there. 

Note that this report quotes the “almost surgical precision” language three times and paraphrases it once and that 

three of the Commissioners appointed by Democrats quote it in their Commissioners’ statements. Note also that 

only Commissioners appointed by Democrats voted to approve this report. See supra at note 1. 26 Some have argued that Congress should pass legislation re-establishing preclearance at least for selected 

jurisdictions they regard as high-risk for efforts to disfranchise minority groups. They argue (not irrationally) that 

state and local governments, out of partisan motives, may in the future make changes in election procedures that 

unreasonably interfere with the right to vote, and challenging those changes in court in the traditional manner will 

sometimes be unwieldy and time consuming. Preclearance would help eliminate that problem. Fine. That’s true. 

But what if it is the Department of Justice’s Civil Rights Division or other federal institutions that are acting 

unreasonably out of partisan motives? That is not an irrational fear either. See infra at note 29 (discussing the 

Civil Rights Division’s effort to overrule the voters of Kinston, North Carolina, who had voted by a ratio of 2 to 1 to 

make their local elections non-partisan). Just as challenging a state or local government’s decision in court can be 

unwieldy and time consuming, so too can challenging an action of the Civil Rights Division. 

27 The various statements of my colleagues also contain a touch of this. For example, Commissioner Narasaki 

writes, “It is abundantly clear that ... the right to a fair and equal vote ... is under siege in several states and 

jurisdictions, and given that reality state sovereignty is not an inviolable right.” (Italics added). In the same vein, 

Chair Lhamon writes, “Americans need strong and effective federal protections to guarantee that ours is a real 

democracy.” (Italics added.) (Note that both of them are long-time inside-the-Beltway denizens.) The tragedy here 

is that my colleagues don’t seem to understand that many Americans trust the attorneys in the Voting Section of the 

Civil Rights Division at the U.S. Department of Justice even less than they trust the politicians and bureaucrats of 

their own state and locality. And it’s not just because the attorneys in the Voting Section are overwhelmingly left of 

center. See infra at note 28. It is also because those attorneys have proven themselves unwilling to protect 

Americans from voter fraud and voter intimidation in an even-handed manner. See Statement of Commissioner Gail 

Heriot in U.S. Commission on Civil Rights, Race Neutral Enforcement of the Law?: DOJ and the New Black 

Panther Party Litigation 125 (2010)(discussing United States v. New Black Panther Party and United States v. 

Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007), aff’d, 561 F.3d 420 (5th Cir. 2009)). 28 These days I don’t think anyone would bother to deny that career employees of the federal bureaucracy—

particularly at the higher levels—tend to be disproportionately ideologically left of center. See, e.g., Mike Causey, 

Are Feds Democrats or Republicans? Follow the Money Trail!, Federal News Radio (April 3, 2017), 

https://federalnewsradio.com/mike-causey-federal-report/2017/04/are-feds-democrats-or-republicans-follow-themoney-trail/. It is also well-established that high-level career employees tend to self-select into agencies whose 

mission they regard as compatible with their ideological perspective. Consequently, agencies like the National Labor 

Relations Board have particularly high concentrations of left-of-center career employees while the Department of 

Defense has particularly high concentrations of right-of-center employees. See Joshua D. Clinton, Anthony Bertelli, 

Christian R. Grose, David E. Lewis & David C. Nixon, Separated Powers in the United States: The Ideology of 

Agencies, Presidents and Congress, 56 Am. J. Polit. Sci. 341 (2011). 
318 An Assessment of Minority Voting Rights Access

I believe that, in the end, any search for a single, disinterested institution that can always be trusted

to protect us all from the abuses of others will be in vain.29 Ambition must be made to counteract

ambition.30 There is no other way.

Finally, there is the problem that no Washington insider likes to mention: As a nation, we lavish

resources on protecting the right to cast a ballot and making it as convenient as possible. And, in

general, that is a good thing. This report itself is an example of that concern. But we need to keep

in mind why are we doing this. If the point is to choose our policymakers by democratic means

(and surely that is the point), the system isn’t working nearly as well as it should.31 Increasingly,

real policy is made not by elected officials, but by bureaucrats who are virtually unaccountable to

 

I have no data showing the political or ideological affiliations of all attorneys in Voting Section of the Civil Rights 

Division of the Department of Justice. On the other hand, Hans von Spakovsky has reported that he obtained 

through the Freedom of Information Act the resumes of the 16 attorneys hired into the Voting Section during the 

first several years of the Obama Administration. His description of their resumes made it clear that they were 

decidedly left of center, one and all. Some were well left of center. See Hans von Spakovsky, Every Single One: The 

Politicized Hiring of Eric Holder’s Voting Section (August 15, 2011), https://www.heritage.org/civilsociety/commentary/every-single-one-the-politicized-hiring-eric-holders-voting-section. 

Moreover, research conducted at my direction found that other civil rights agencies (for which we do have figures) 

show extraordinary one-sidedness in partisan or ideological balance. For example, of the 844 entries going back to 

1991 for political donors who listed “EEOC” as their employer on Opensecrets.org , 38 (4.5%) went to Republicans 

or Republican or conservative affiliated groups. All of the others (95.5%) went to Democrats or Democratic or 

liberal/progressive affiliated groups. (No one listed “Equal Employment Opportunity Commission” as employer.) 

Similarly, I directed my staff to determine who, from a list of 565 employees of the Office for Civil Rights at the 

U.S. Department of Education, had made political contributions recorded on Opensecrets.org. Of the 43 donors 

found, 41 (95.3%) had given to Democrats or Democratic or liberal/progressive affiliated groups, and 2 (4.7%) had 

given to Republicans or Republican or conservative affiliated groups. There are few, if any, state legislatures as onesided.

Especially given the von Spakovsky data, it would be surprising if the Voting Section at the Civil Rights Division 

were significantly different from OCR or the EEOC. See also Ralph R. Smith, Which Party Receives the Most in 

Political Contributions from Federal Employees?, FedSmith.com: For the Informed Fed (May 19, 2016)(finding 

that $137,603 worth of political contributions are made to Democrats by Department of Justice employees, while 

$14,939 worth of political contributions are made to Republicans), https://www.fedsmith.com/2016/05/19/whichparty-receives-the-most-in-political-contributions-from-federal-employees/. 29 Partisan and other inappropriate motives, sometimes conscious, but more often unconscious, exist at all levels of 

government. A case worth examining in this regard involves Kinston, North Carolina. Kinston is a town of less than 

25,000 residents in the eastern part of the state. African Americans make up almost two thirds of its population. 

Voters in Kinston voted by a 2 to 1 margin to have its local elections conducted in a non-partisan manner. There is 

nothing unusual about this; many local jurisdictions conduct elections without listing on the ballot the party 

affiliations (if any) of the candidates. It is as common as dust.

As common as it is, in 2009, the Obama-Era Civil Rights Division refused to tolerate it. Put differently, it refused to 

allow the voters of Kinston, very much including the African-American voters, the dignity of deciding how to 

conduct their own local elections. It insisted the words “DEMOCRAT” or “REPUBLICAN” appear on the ballot for 

local officials. It is hard not to wonder whether the Civil Rights Division was motivated by a desire to defend the 

right of African Americans to vote (on everything except whether their elections will be non-partisan) or a desire to 

benefit the Democratic Party. 

30 Federalist 51. 31 See generally Philip Hamburger, Is Administrative Law Unlawful? (2015). For a view that the unaccountable 

career bureaucracy is a good thing, see Eugene Robinson, God Bless the “Deep State,” WASH. POST (July 19, 2018). 
Commissioners’ Statements 319

voters.32 While concern over the right to cast a ballot and the integrity of that ballot is certainly a

good thing, we need to spare a thought for elections’ raison d’être too. Are we seeing the level of

self-governance to which a free people should be entitled? It is getting increasingly difficult to

answer that question positively.33 And surely those who argue most energetically for federal

agencies to supervise elections are often the ones who argue federal agencies to supervise our daily

lives.

A FEW THOUGHTS ON SAFEGUARDING THE RIGHT TO CAST A BALLOT (AS WELL

AS OTHER RIGHTS)

At the individual level, the right to vote can seem very unimportant. It is rare—to the point of

being almost unheard of—for an election to be decided by a single vote. On Election Day, many

Americans choose not to exercise their right to vote. Some view themselves as insufficiently

informed about the candidates to cast a vote they can be proud of, and it is not uncommon for them

to be right about that. Others find it distasteful or simply a waste of their time. They have jobs to

do, families to tend to, and other activities that bring purpose to their lives.

But those who worry that this will cause basic voting rights to go undefended may be worrying

unnecessarily. Unlike with some other rights, with voting rights, there are well-organized third

parties with a strong and direct incentive to prevent abuse. Elected officials and political parties

are the most obvious examples.34 Their jobs depend on elections, and they are not about to let the

voting strength of their political coalitions be reduced without a fight. Indeed, if anything, elected

officials may be accused of spending a disproportionate amount of their time worrying about

voting issues (and hence about their own re-election) to the detriment of issues that affect their

constituents’ lives in more direct ways.35

 

32 This, of course, was a major tenet of the Progressive Movement: Out with elected mayors, in with city managers 

with “expertise” in administration; out with the election of local officials of many kinds, in with the “short ballot;” 

out with Presidential appointees to do the work of the executive branch, in with “civil servants”; out with separation 

of powers, in with delegation of rulemaking and adjudicatory authority to administrative agencies staffed with career 

bureaucrats; out with “politics,” in with “disinterested experts” who theoretically have the best interests of the 

country in mind. 

33 For the lighter side of this issue, see the BBC’s Yes, Minister or its sequel Yes, Prime Minister. See 

https://en.wikipedia.org/wiki/Yes_Minister. Yes, I can still laugh at this problem now and then, but it’s getting 

harder as time goes on. 

34 Elected officials and political parties are not the only ones with a motive to defend voting rights. There are many 

others, probably too many, whose fortunes rise and fall according to who occupies the White House, the governor’s 

mansion, or the mayor’s office or which party controls the legislative branch. That can include political appointees, 

aspiring political appointees, public contractors, aspiring public contractors, lobbyists, lawyers, businesses, unions 

and many others. All of them have a strong and direct incentive to ensure that members of their political coalition 

can vote. In addition, there are those whose interest in public policy is intense despite its having little direct effect on 

their lives or fortunes (though they may be rarer than we would all like to think). 35 One way in which the interests of elected officials (as well as identity politics organizations) may diverge from 

their rank-and-file voters can be seen in the area of “vote dilution.” In theory, vote dilution can mean very different 

things. First, it can refer to apportionment such that much larger numbers of voters live in one district than in 

another. This has been prohibited since Reynolds v. Sims, 377 U.S. 533 (1964) and is rarely a genuine issue today. 
320 An Assessment of Minority Voting Rights Access

To be sure, elected officials and political parties also have an incentive to make sure that members

of the opposing political coalition cannot vote or that supporters of their coalition who are not

entitled to vote get to do so anyway.

36 But one important limitation on such abuses is the American

two-party system, which I believe is significantly better for this purpose than a multi-party system.

There is almost always a large, well-financed coalition willing to push back against threats of

disfranchisement (with African-American disfranchisement of the late 19th and early 20th centuries

as the major exception). 37 Alas, the same cannot be said for many of our other rights.

 

Second (and more relevant to the present discussion), it can refer to apportionment such that the members of a 

particular group are distributed over several districts, rather than concentrated in one or more districts where they 

can form a majority. A variation on the latter theme can be this: It is also considered vote dilution to concentrate the 

votes of the minority such their votes are more than sufficient to elect the candidate of their choice (and hence votes 

are wasted that could have gone towards influencing elections in other districts).

Here is the problem with the second form of vote dilution: For rank-and-file voters in a particular minority group, it 

is seldom clear whether they will be better off having 10% of the vote in six of ten districts on the city council or 

60% of the vote in one of ten districts. The 10% may not be enough of allow the group members to elect the 

candidate of their dreams, but it will sometimes be enough, through adept coalition building, to defeat the candidates 

of their nightmares. It is not obvious whether it is better for them to have six city council members (and hence a 

majority) who at least are not hostile to their interests or one city council member who can voice their position at 

city council meetings and attempt to drive deals with the other members. It may depend on the issues that come 

before the council, which are never completely foreseeable. It may also depend on the coalition-building talents of 

the particular person elected, which are difficult to gauge prior to that person’s election. On the other hand (and 

here’s the rub), the elected official or aspiring elected official from that minority group’s protected district may 

flatter himself or herself into believing that the choice is indeed clear. 36 Commissioner Narasaki makes a similar point when she writes that “people willing to suppress votes to stay in 

power will always be seeking new ways to accomplish that goal.” The point she doesn’t make, but which is also 

valid, is that people willing to engage in election fraud to stay in power will always be seeking new ways to 

accomplish that goal. See United States v. Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007), aff’d, 561 F.3d 420 (5th

Cir. 2009). Again, we should avoid the temptation to believe that federal authorities are the only good guys and that 

state authorities cannot possibly be engaged in an effort to thwart local fraudsters when they say that is their intent. 

37 When elected officials from both major parties conspire together for the benefit of elected officials qua elected 

officials (i.e. when they act in a “bipartisan manner”), the protections offered by the two-party system break down. 

That’s when the voters are in real trouble. See Jean Merl, State’s Redrawn Congressional Districts Protect 

Incumbents, L.A. Times (February 9, 2002)(“In a rare burst of bipartisan cooperation, legislators did their best to 

make all districts either safely Democratic or safely Republican; thus they sharply curtailed the likelihood of 

competition this year”). Even so, the danger isn’t that individual voters will be “disfranchised” in the strict sense. 

It’s something more dangerous, since it may slip the notice of average voters, and even if it does not, punishing both 

parties is not an easy task. 

This may be an example of the old joke: There are two parties in the American political system: The Stupid Party 

and the Evil Party. Now and then they get together and do something that is both stupid and evil. This is known as 

“bipartisanship.” 

In no other area of law and policy is there a greater incentive for elected officials to advocate for special interest 

legislation. The special interest is, of course, they themselves—the class of incumbent politicians. See, e.g., The 

Bipartisan Campaign Reform Act of 2002, Pub.L. 107-155, 116 Stat. 81, enacted March 27, 2002, popularly known 

as the McCain-Feingold Act, (generally making it more difficult for incumbent politicians to be challenged). See 

also Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)(holding unconstitutional on First 

Amendment grounds the section of McCain-Feingold that made it illegal for a conservative non-profit to publicly 

show a film that was critical of Hillary Clinton shortly before the Presidential primaries in which she was a 

candidate).
Commissioners’ Statements 321

One reason that large disfranchisements of existing voters have been extremely rare in history

(again with one major exception) is the obvious one: Voters don’t like to be disfranchised.38 And

as Ralph Waldo Emerson taught us, “When you strike at a king, you must kill him.” I have

sometimes told the story of the lead-in to Wyoming’s entrance into the Union to my law students.

Unlike any state at the time, the Wyoming Territory gave women the right to vote. Fearing that

Wyoming’s example would cause the women of other states to demand the vote, Congress

initially balked at Wyoming’s application for statehood, telling the Wyoming territorial

legislature that it must disfranchise women first. But the Wyoming legislators stood their

ground and cabled back to Congressional leaders, "We will remain out of the Union one

hundred years rather than come in without the women." Eventually Congress relented.

I have looked at that story in the past as one in which the legislators stuck to their principles—

that Wyoming women were equal partners in the settlement of the territory and that it would

be morally wrong to deny them their right to participate. And I hope and trust that this was

indeed the case for at least a number of the legislators. But, upon reflection, there’s another

way to look at the situation: Women already had the vote. The first legislator to suggest that

he might be willing to disfranchise women had better hope and pray that his colleagues follow

suit and that women are indeed disfranchised. Otherwise he will likely be angrily voted out of

office at the next opportunity.39

Almost no one argues that there is any significant chance that the African-American

Disfranchisement will be repeated in the lifetime of anyone around today. The catastrophic

circumstances in the South at that time have virtually no chance of recurring. We have plenty of

problems to deal with. That isn’t one of them.

That doesn’t mean that smaller interferences with the right to vote won’t happen. There may even

be lots of them.40 Indeed, there will probably be lots of

 

38 Some states during the African-American Disfranchisement Movement considered the idea of continuing to allow 

African-American men and illiterate white men to vote, but allowing literate women and/or women of property (but 

not other women) to vote. Among the states to consider this approach were Alabama and Mississippi. See Michael 

Perman, Struggle for Mastery: Disfranchisement in the South 1888-1908 (2001). It was believed such an approach 

would cause less resentment than disfranchisement. 39 It’s important to understand just how unusual the disfranchisement of a major group is, not just in American 

history, but in the history of Western democracy. Political scientist Richard Valelly wrote:

No major social group in Western history, other than African Americans, ever entered the electorate of an 

established democracy and then was extruded by nominally democratic means such as constitutional 

conventions and ballot referenda, forcing that group to start all over again. Disenfranchisements certainly took 

place in other nations, for example, in France, which experienced several during the nineteenth century. But 

such events occurred when the type of regime changed, not under formally democratic conditions. In Europe, 

Latin America, and elsewhere, liberal democracies never sponsored disfranchisement. Once previously 

excluded social groups came into any established democratic system, they stayed in.

Richard M. Valelly, The Two Reconstructions: The Struggle for Black Enfranchisement 2 (2004).

40 There will also be lots of false alarms. Some of the cases mentioned by Chair Lhamon, in my opinion at least, are 

not quite what they appear to be on the surface. For example, she originally stated that “[i]n New York just three 
322 An Assessment of Minority Voting Rights Access

 

years ago baseless racially identifiable citizenship challenges prevented Americans from voting” (in response to my 

statement, she has since changed “prevented” to “impeded”) and cites to the New York State Attorney General’s 

press release. But looking at a press release alone is not always the best way to understand what is baseless. In this 

case, accounts in the media present a different side of things: In Deerpark, New York, a town of a little under 8000, 

Town Supervisor Gary Spears filed a challenge to voter registrations by 30 persons with Chinese names. Spears said 

that the fact that all 30 individuals wrote down the same address raised red flags for him. It turns out that all of them 

are students at a small college, Fei Tian College, which is affiliated with the Falun Gong movement. While the 

residence is listed as a three-bedroom, single-family home in the town tax records, it is apparently functioning as a 

dormitory at this small college. Some of the registrants also apparently showed up on Facebook as having addresses 

in California. Only two registrations were cancelled. But as I understand the matter from news media accounts, they 

were added back to Deerpark’s voting rolls before any election had passed, meaning that nobody was ever actually 

denied the right to vote. See, e.g., Holly Kellum, Voting Registration of 30 Deerpark Citizens Cleared, The Epoch 

Times (October 14, 2015), https://www.theepochtimes.com/voting-registration-of-30-deerpark-citizenscleared_1877222.html; Chris Fuchs, Chinese-American Students File Lawsuit Alleging Voter Intimidation, NBC 

News (October 27, 2015), https://www.nbcnews.com/news/asian-america/chinese-american-students-file-lawsuitalleging-voter-intimidation-n452166. All in all, this seems to be a case of a reasonable challenge that turned out to 

be unfounded. No harm was done. It is one of life’s everyday misunderstandings blown out of proportion by our 

current polarized political culture.

Chair Lhamon also states that “[i]n North Carolina we heard testimony about a voter over 90 years of age who had 

to make eleven trips to different state agencies and institutions to try and obtain the correct paperwork because her 

voter registration card did not match the name on her license.”

That may sound terrible, but the real story turns out to be not so terrible. According to the transcript, the voter in 

question was then-92-year-old Rosanell Eaton, who was also one of the named plaintiffs in the North Carolina 

NAACP v. McCrory litigation. Mrs. Eaton was a heroine of the Civil Rights Movement. As a young woman in 

1939, she was among the first African Americans to register in her county. To do so, she had to recite the preamble 

to the Constitution as proof of her literacy. She went on to be an assistant poll worker for 40 years and was 

responsible for registering more than 4000 people to vote. 

It is telling that to challenge North Carolina’s voter ID law, the North Carolina NAACP had to use a plaintiff who 

actually did have an ID, in this case a driver’s license. The problem was simply a name discrepancy. Her driver’s 

license said “Rosanell Eaton” while her voter registration said “Rosanell Johnson Eaton,” which she apparently 

assumed would be a problem. Mrs. Eaton sued well before the North Carolina voter ID law had gone into effect (and 

hence before the procedures had been worked out). But in any event, it was clear right from the beginning that, she 

easily could have voted by absentee ballot even without an ID. Alternatively, if she preferred to vote in person, the 

procedure for reconciling one’s voter registration to one’s driver’s license (as opposed to the other way around) was 

easy and would have taken only five minutes. Even the procedure for reconciling one’s driver’s license to one’s 

voter registration is much easier than the eleven trips she and her daughter apparently took. See Sterling Beard, The 

Left’s Faux Martyr, National Review Online (August 19, 2013), https://www.nationalreview.com/2013/08/leftsfaux-martyr-sterling-beard/.

Finally, Chair Lhamon points to a Georgia legislator whom she describes as having “openly stated that he does not 

want early voting because of the type of people—voters of color—who will use it.” I agree with Chair Lhamon that 

parts of the statement of the legislator in question were problematic. But he appears to be motivated by purely 

partisan concerns, not race. He believed that early voting opportunities are disproportionately being located within 

easy distance of African-American mega-churches (whose members disproportionately vote Democratic) and 

wrongly believed this to be a violation of “the accepted principle of separation of church and state.” That’s silly. His 

main grievance appears to be that early voting opportunities within easy distance of large numbers of Republican 

voters were rarer (and hence election officials were not acting in a non-partisan manner). If he is right on that, he has 

a legitimate point. See Fran Millar, Interim DeKalb CEO Honeymoon Over, 

http://www.thecrier.net/our_columnists/article_a5bd6f90-37c0-11e4-a3e0-0019bb2963f4.html. 
Commissioners’ Statements 323

them.41 But I take some solace in the fact that, as a nation, we are better prepared to deal with

voting rights issues than we are with issues arising out of a number of our

 

41 Commissioner Adegbile points out that “successful” §2 cases (as defined in the staff-generated part of this report) 

have quadrupled in the years since Shelby County when compared to the same number of years immediately 

preceding that case. Part of this may be just timing. The census is always taken at the beginning of the decade. The 

work of redistricting takes place about two years later, so litigation over re-districting tends to be decided in 2013-

2014 or so. But I suspect that he is right that the number of §2 challenges has grown or at least that it will grow. That 

should be expected. The upshot of Shelby County was that, unless Congress legislates further, the old preclearance 

system would be replaced by §2 litigation as the dominant method for dealing with these issues in all states instead 

of just in non-covered jurisdictions. That is not troubling in itself.

The important question is whether §2 litigation is somehow less effective at dealing with violations of the law than 

was the preclearance method in those jurisdictions where preclearance was previously required. Looking at the 

twenty-three §2 cases classified in this report as “successful,” I am not yet convinced that it is. Eleven out of the 

total took place in jurisdictions that weren’t covered in the first place, so the change in procedure wrought by Shelby 

County did not affect them. (Note that this lends some credence to the Supreme Court’s conclusion that Congress’s 

use of a 1975-vintage formula for determining which jurisdictions are high-risk for violations of the law was 

unfairly out of date. Moreover, it is evidence that §2 litigation has been sufficient to control abuses. If it hadn’t been, 

there would have been massive pressure to extend preclearance nationwide.) 

The fear of those who would like to see preclearance restored was that in the formerly covered jurisdictions, §2 

lawsuits would be too cumbersome a method for derailing proposals that violate the law. Those proposals would 

therefore be implemented before a court had an opportunity to make a decision and act. But that doesn’t seem to 

have happened. According to the chart on pages 226-28, of the 12 cases in covered jurisdictions, five resulted in 

preliminary injunctions (a standard tool for preventing likely violations that threaten to cause irreparable harm 

before they can be fully litigated). 

I took a look at the remaining seven (i.e. the ones in which, according to the chart, no preliminary injunction had 

issued) to see if they involved a proposal that would have failed preclearance, but instead got implemented before 

the court had a chance to decide what to do. These cases are a jumble, and I do not claim to be an expert on their 

sometimes-complicated histories. In some cases it’s not even possible, based on the information available to me, to 

confirm whether the chart is right that no preliminary injunction was granted. Nevertheless, it is not certain that any 

are examples of what Shelby County critics feared—cases where proposals that would have been derailed by 

preclearance instead got implemented before a court had time to make a decision and act (although Patino v. City of 

Pasadena, 230 F. Supp. 3d 667 (S.D. Tex. 2017), might be such a case). I discuss some of them infra at note 42. 
324 An Assessment of Minority Voting Rights Access

other rights.42 Voting issues seldom slip by unnoticed.43

 

42 Post-Shelby County cases in which the lack of the former preclearance procedures likely led to the 

implementation of an illegal voting procedure are at worst rare. According to the Report’s chart on pages 221-4, 

there are seven “successful” §2 cases from formerly preclearance jurisdictions where no preliminary injunction 

issued. But that doesn’t necessarily mean an illegal voting procedure was implemented that would have been 

prevented by a preclearance process. For example, in Benavidez v. Irving School District, No. 3:2013cv00087 (N.D. 

Tex. 2014), a continuing duty to preclear would not have yielded a different result. How do I know that? Because it 

was precleared. The plaintiff brought the case in spite of that and apparently won. And in Terrebonne Parish

NAACP v. Jindal, 3:14-CV-00069-JJB-EWD (M.D. La. August 17, 2017), a preclearance process would not have 

changed things, since defendants had not changed election procedures in a way that would have triggered that 

process. Instead, plaintiffs were arguing that the defendants should change procedures that had been in place a long 

time. 

Of the cases I was able to examine, Patino v. City of Pasadena, 230 F. Supp. 3d 667 (S.D. Tex. 2017), may come the 

closest to being what preclearance supporters fear, see supra at note 41. No preliminary injunction appears to have 

issued there, so the City of Pasadena’s re-districting plan for its city council went into effect for the 2015 election 

before being permanently enjoined for future elections by the court in 2016. But it appears that no preliminary 

injunction was requested, and nothing I found in the record explains why. 

One thing we do know is that there were facts in dispute in Patino (since summary judgment was denied and a trial 

on the merits occurred). It is therefore possible that a preliminary injunction was not asked for, because the plaintiffs 

knew that until they had taken discovery and proven their case at a full trial, the balance of equities would be viewed 

by the court as not weighing in their favor.

The leads to the question whether it is a good thing or a bad thing that sometimes temporary restraining orders 

and/or preliminary injunctions won’t issue in cases where the plaintiff is ultimately successful in proving his or her 

entitlement to a permanent injunction. That in turn becomes a question of the relative importance of the two 

different kinds of errors that can occur in the context of a particular case. It’s not clear that the failure to grant a 

preliminary injunction that in hindsight should have been granted is always a more serious error than the issuance of 

a preliminary injunction that in hindsight should not have been granted. Sometimes standing in the way of a change 

to election procedures instituted by democratically elected officials on the ground that it is possible, but not 

especially likely, that the change will eventually be shown to be unlawful will be precisely the wrong thing to do. 

If so, the §2 litigation method may be superior to the preclearance method, because the courts are in a somewhat 

better position to balance the dangers of Type I and Type II errors. With preclearance, the Civil Rights Division 

ordinarily will either preclear or not preclear. The option of allowing a change to be implemented and then revoking 

preclearance after it has had the opportunity to consider the matter at greater length does not fit in well with the 

concept of preclearance. Unlike §2 litigation with its time-honored distinction among temporary restraining orders, 

preliminary injunctions, and permanent injunctions, the preclearance process is not structured to give the Civil 

Rights Division three distinct bites at the apple.

Note that in the case of Patino, the court ordered that in the future the City of Pasadena will be subject to 

preclearance. This is an option that courts have with jurisdictions that have violated the law. Under §3, they can be 

“bailed in” to the preclearance system. Patino v. City of Pasadena, 230 F. Supp. 3d 667, 729-30 (S.D. Tex. 2017). 

The defendant in Allen v. City of Evergreen, 2014 WL 12607819 (S.D. Ala. 2014), was similarly “bailed in” under 

§3. It’s important to remember that Shelby County did not do away with the preclearance process. If a court 

designates a jurisdiction under §3, that jurisdiction will be subject to preclearance. 

For a discussion of Perez v. Abbott and the special case where the status quo ante is not an option, see infra at note 

43.

43 In cases in which the status quo ante is not an option, §2 litigation may be the superior method of dealing with 

illegal voting procedures. Perez v. Abbott may be a useful example.

The supposed virtue of the preclearance approach is that it prevents state and local governments from implementing 

a change in election procedure until that change has been thoroughly considered and approved. If the change doesn’t 
Commissioners’ Statements 325

Consider, for example, Shelby County v. Holder. In that case, 48 amici curiae briefs were filed.

Amici included by John Nix et al.; the Judicial Education Project; the Justice and Freedom Fund;

the Mountain States Legal Foundation; the Southeastern Legal Foundation; the National Black

Chamber of Commerce; Arizona; Georgia; South Carolina; South Dakota; the Pacific Legal

Foundation; the Landmark Legal Foundation; Hans von Spakovsky, J. Christian Adams, Clint

Bolick, Roger Clegg, Charles Cooper, Robert Driscoll, William Bradford Reynolds, Bradley

Schlozman, the Abraham Lincoln Institute for Public Policy Research, the Center for

Constitutional Jurisprudence, the Cato Institute, the State of Texas, Project 21, Alabama, Merced

County, California, Alaska, American Unity Legal Defense Fund, Professor Patricia Broussard,

National Bar Association, Rep. John Lewis, Rep. Frank Sensenbrenner, Dick Thornburgh,

 

get approved in time for an election, its proponent must default to the status quo ante. (See supra at note 42 for my 

thoughts on whether this is always the best approach.)

One of the problems with this approach is that sometimes the status quo ante is unworkable. So it was with Texas in 

Perez v. Abbott (Congressional re-districting case). After the 2010 census, Texas had been allotted four more seats 

in the U.S. House of Representatives. There was no way it could simply default to the re-districting map of the 

previous decade if its proposal failed preclearance (as it eventually did, just a bit before Shelby County). 

Here’s my understanding of what happened: After the 2010 census, the Texas legislature passed two newly redistricted maps, both of which became the subject of lengthy litigation—one for the U.S. House of Representatives 

and one for the Texas House of Representatives. Texas opted to submit them for preclearance to the U.S. District 

Court for the District of Columbia (as the Voting Rights Act permits it to do) rather than to the U.S. Department of 

Justice. See Carrie Johnson, Could Texas’ Redistricting Leave Latinos Behind?, National Public Radio (September 

19, 2011)(suggesting that Texas chose to submit its plans to the U.S. District Court for the District of Columbia, 

because it was leery of the Department of Justice’s possible political motives).

But with the primary season fast approaching, no decision on preclearance had been forthcoming, and Texas 

therefore could not legally implement its plan. Things were starting to look bad.Luckily for Texas voters, parallel §2 

litigation had been filed in federal court in Texas. See Complaint in Perez v. Texas, No. 5:11-CV-00360-OLG-JESXR (W.D. Tex. filed May 9, 2011), and a three-judge panel had been convened. See 28 U. S. C. §2284. With the 

help of the parties, that court (not the U.S.D.C.D.C.) begun to devise (after one false start, see Perry v. Perez, 565 

U.S. 388 (2012)) substitute plans. Ultimately, the U.S. District Court for the District of Columbia declined to 

preclear the original Texas plan. But was the §2 court that saved the day by devising the alternative map, not the 

preclearance court. That alternative map was implemented in time for the 2012 elections.

It seems to me that having the §2 court design the alternative will usually be a better method of dealing with the 

cases where the status quo ante is not an option. Nobody should want a court to be deciding how to re-district a 

state. It is an inherently political decision that, when possible, should be left to politicians, acting within the law. But 

sometimes judicial action may be necessary. I suspect most people would prefer a court to the lawyers in the Voting 

Section of the Civil Rights Division, especially given the lack of political and/or ideological diversity of the Voting 

Section (as discussed supra at note 28), courts will likely be seen as more legitimate. Spreading the responsibility 

out to federal courts across the country rather than concentrating that responsibility in just one court—the U.S. 

District Court for the District of Columbia—makes sense too. There is a season for this type of litigation. It comes 

once every ten years after the census. It is impossible to predict how many cases will reach litigation, so it is 

impossible for the U.S. District Court for the District of Columbia to gear up each decade to handle the cases. In 

addition, if a single federal court is seen as the arbiter of all such cases, judgeships on that court will be especially 

controversial and the court will be subject to special scrutiny and suspicions of political bias.

The litigation over Texas’s Congressional re-districting continued for years after the 2012 elections. Eventually, the 

Texas legislature adopted (with only a few modifications) the re-districting plans the §2 court had devised. On 

March 10, 2017, however, the §2 court decided that the legislature’s actions were “tainted” by its earlier actions and 

that further adjustments would therefore be necessary. Perez v. Abbott, No. 5:11-CV-00360-OLG-JES-XR (W.D. 

Tex. March 10, 2017). That decision was reversed by the Supreme Court in connection with the Texas map of 

Congressional districts. Perez v. Abbott, ___ U.S. ___ (June 25, 2018). That reversal occurred only one day before 

the chart in the staff-generated portion of this Report was adopted by the Commission. The reversal was therefore 

not reflected in that chart. 
326 An Assessment of Minority Voting Rights Access

Brennan Center for Justice, Sen. Majority Leader Harry Reid, Veterans of the Mississippi Civil

Rights Movement, Gabriel Chin, the Constitutional Accountability Center, Professor Richard

Engstrom, The Leadership Conference on Civil and Human Rights and the Leadership Conference

on Civil and Human Rights Education Fund, the Hon. Marcia Fudge, Professor Kareem Crayton

et al., Jurisdictions that Have Bailed Out, the National Lawyers Guild, the American Bar

Association, National Latino Organizations, Section 5 Litigation Intervenors, the Alabama Black

Legislative Caucus and the Alabama Association of Black County Officials, New York, Senator

C. Bradley Hutto, Navajo Nation et al., Joaquin Avila, Asian American public interest groups; a

group of historians and social scientists; Ellen Katz and the Voting Rights Initiative; the Alaska

Federation of Natives and Alaska Natives and Tribes; and the City of New York.

Similarly, in Crawford v. Marion County Board of Elections, there were 41 amicus briefs. The

individuals and organizations filing include Prof. Richard Hasen, the League of Women Voters of

Indiana, the League of Women Voters in Indianapolis, Congressman Keith Ellison, the Electronic

Privacy Information Center, the Asian American Legal Defense and Education Fund, Rock the

Vote, the National Black Law Students Association, the National Black Graduate Students

Association, the Feminist Majority Foundation, the Student Association for Voter Empowerment,

Charles Ogletree and a group of historians and scholars; Christopher Elmendorf and Daniel Tokaji;

AARP and the National Senior Citizens Law Center; the National Law Center on Homelessness

and Poverty; the Lawyers Committee for Civil Rights Under Law; Service Employees

International Union; the American Federation of State, County, and Municipal Employees;

Common Cause; the Jewish Council for Public Affairs; the National Council for Jewish Women;

NAACP Legal Defense and Education Fund; the Cyber Privacy Project; Privacy Journal; Privacy

Activism; Liberty Coalition; the U.S. Bill of Rights Foundation; Robbin Stewart; ACORN; Dr.

Frederic Schaeffer et al.; Senator Dianne Feinstein; Representative Zoe Lofgren; Representative

Robert Brady; the Rutherford Institute; the Asian American Justice Center; the Asian Law Caucus;

the Asian American Legal Center of Southern California; the Asian American Institute; R. Michael

Alvarez; Lonna Rae Atkenson; Deila Bailey; Thad E. Hall; Andrew D. Martin; National Congress

of American Indians; Navajo Nation; Agnes Laughter; Brennan Center for Justice; Demos;

Lorraine C. Minnite; Project Vote; People for the American Way Foundation; Pacific Legal

Foundation; Karen Handel, then Georgia Secretary of State; Erwin Chemerinsky; Mountain States

Legal Foundation; Doris Anne Sadler; Center for Equal Opportunity; Project 21; Senator Mitch

McConnell; American Unity Legal Defense; Republican National Committee; Lawyers

Democracy Fund; Texas, Alabama, Colorado, Hawaii, Michigan, Nebraska, Puerto Rico, South

Dakota; Washington Legal Foundation; Evergreen Freedom Foundation; American Civil Rights

Union; and the Conservative Party of New York State.

That is not to say that justice will always be done. It won’t be. No nation is ever that lucky in any

area of the law. But relative to other rights and other areas of human endeavor, this one at least

gets plenty of attention.44 That’s something. Instead, my point is only that I wish elected officials

 

44 At times there seems to be an over-sensitivity in this area, especially in efforts to combat voter intimidation, to go 

alongside occasional under-sensitivity. A few years ago, billboards with the message “Voter Fraud Is a Felony! Up 

to 3 1⁄2 yrs & $10,000 fine” led to a hullaballoo in Cleveland. The large corporation that owned and leased the 
Commissioners’ Statements 327

(and others interested in elections) spent as much time worrying about issues that have affected

people’s lives more directly.

The voter ID cases are interesting in this regard. The various state laws at issue in those cases get

a lot of attention, not just in the courts, but from the press and from various organizations that

purport to represent the interests of groups thought to be less likely to have an ID. Yet photo IDs

are necessary for lots of activities, not just voting. According to Ashe Schow of the Washington

Examiner, they are necessary to open a bank account; to apply for food stamps; to apply for public

assistance; to apply for Medicaid or Social Security; to apply for a job; to apply for unemployment

benefits; to rent or buy a home; to purchase alcohol, to purchase cigarettes, to drive, buy, or rent a

car; to get on an airplane; to get married; to purchase a gun; to adopt a pet; to rent a hotel room; to

apply for a hunting license; to apply for a fishing license; to purchase nail polish at CVS, and

purchase certain cold medicines.45 To that list I can add my experience has been (and the GSA

web site confirms) that to enter federal buildings one must often present a photo ID.

Given how common photo ID requirements are, one must wonder why all the objections seem to

concern voter ID laws. No effort that I am aware of (and certainly nothing like the monumental

effort that has been put into combating voter ID legislation) has been put into softening ID laws

and policies like those above. Getting a job, renting a home, opening a bank account, and many

other things on the list are more important to how an individual is able to live his or her life than

the ability to vote.46

 

billboards—Clear Channel Outdoor Holdings, Inc.—came under pressure from local politicians and pressure groups 

to remove them. Buckling under that pressure, it agreed to do so. As penance, it further agreed to allow their 

billboards to carry the message, “Voting is a right. Not a Crime!” for free. Patrick O’Donnell, Voter Fraud Billboards 

that Drew Complaints of Racism and Intimidation Will Come Down, Clear Channel Says, Cleveland Plain Dealer (October 20, 

2012), https://www.cleveland.com/metro/index.ssf/2012/10/voter_fraud_billboards_that_dr.html. It is, of course, a fact that 

voter fraud is criminal. I do not know for certain how common it is, but obviously outcries like the one in Cleveland serve to 

cause ordinary citizens to conclude it may be more common than they thought. “Why else would local politicians throw such a 

fit over a billboard that accurately states what the law is?” many will likely wonder. 

Is an accurate statement of this kind protected by the First Amendment? It is a question worth considering. The 

Supreme Court recently issued an opinion finding that a state law designed to protect against voter intimidation went 

too far toward discouraging free speech. See Minnesota Voters Alliance v. Mansky, ___ U.S. ___ (June 14, 

2018)(holding that a Minnesota law prohibiting individuals, including voters, from wearing a “political badge, 

political button, or other political insignia” inside a polling place is a violation of the First Amendment). What is 

curious is that some serious allegations of voter intimidation have drawn less attention from officials than the 

billboard case: Voter intimidation involving two men, standing shoulder-to-shoulder in front of the door to the 

polling place, wearing paramilitary clothing, hurling racial epithets at white voters and poll workers, with one 

wielding a night stick, caused far less concern at the Department of Justice almost a decade ago. See Statement of 

Commissioner Gail Heriot in U.S. Commission on Civil Rights, Race Neutral Enforcement of the Law?: DOJ and 

the New Black Panther Party Litigation 125 (2010). 45 Ashe Schow, 24 Things That Require a Photo ID, Washington Examiner (August 14, 2013). 46 Even the things that look small on paper can turn out to be very important once you know the facts. For example, 

migraine sufferers whose headaches are triggered by sinus congestion (like me) consider few things as important as 

obtaining the decongestant pseudoephedrine (in over-the-counter drugs like Sudafed). Yet under federal law, it is 

apparently available only on presentation of a photo ID. 
328 An Assessment of Minority Voting Rights Access

Once more for emphasis: I am not arguing that the political classes should pay less attention to

voting rights issues. Even if I were arguing that, I would be barking at the moon. In our Era of Big

Government, so many believe themselves to have a huge stake in the outcome of elections, itseems

unlikely that I or anyone else will be able to persuade them not to worry. I am simply hoping that

we can duplicate some of the energy that goes into voting rights elsewhere.

The area that is most troubling right now is free expression. The ACLU, once the nation’s premier

public interest law firm, has quietly backed away from its traditional position favoring robust

protectionsfor unpopular speech. Wendy Kaminer, a former ACLU Board Member, recently wrote

in the Wall Street Journal:

[T]raditional free-speech values do not appeal to the ACLU’s increasingly partisan

progressive constituency—especially after the 2017 white-supremacist rally in

Charlottesville. The Virginia ACLU affiliate rightly represented the rally’s

organizers when the city attempted to deny them a permit to assemble. Responding

to intense post-Charlottesville criticism, last year the ACLU reconsidered its

obligation to represent white-supremacist protesters.

The 2018 guidelines claim that “the ACLU is committed to defending speech rights

without regard to whether the views expressed are consistent with or opposed to

the ACLU’s core values, priorities and goals.” But directly contradicting that

assertion, they also cite as a reason to decline taking a free-speech case “the extent

to which the speech may assist in advancing the goals of white supremacists or

others whose views are contrary to our values.”47

I am less optimistic about the nation’s willingness to put effort into safeguarding the right to free

expression than I am the right to vote. I hope I am worrying unnecessarily.

 

47 See Wendy Kaminer, The ACLU Retreats from Free Expression: The Organization Declares that Speech It 

Doesn’t Like Can “Inflict Serious Harms” and “Impede Progress,” Wall Street Journal (June 20, 2018)(emphasis 

added). 
Appendices 329

APPENDIX A: SUMMARY OF THE COMMISSION’S PAST 

VOTING RIGHTS BRIEFING REPORTS

Briefing Reports

1959—Report of the United States Commission on Civil Rights

The first USCCR report on voting rights was released in 1959, and the Commission based its

findings on a two-year investigation.1 The Commission established a team to receive voting

complaints from around the country. These sworn complaints became the basis for a number of

investigations into discrimination in voting in states such as Florida, Alabama, Mississippi,

Louisiana, and Tennessee.2 Due to the large number of voting complaints, the Commission held

its first public hearing in Montgomery, Alabama on December 8, 1958, which lasted for two days.3

At this hearing, the Commission heard testimony from state officials, such as judges and registrars,

and from citizens who had been denied the right to vote in Alabama.4

This report also collected statistical data on black and white registration rates in ten southern states

and conducted field investigations of vote denial complaints in twenty-nine counties across ten

states in the South.5 While most of these complaints came from the hearing held in Alabama, the

Commission found more racial disparities in voting in Mississippi than any other state in the

study.6 The Commission concluded with their findings and recommendations for Congress based

on their field investigations and hearings. Some of the notable recommendations were that: (1) the

Bureau of the Census needed to establish a nationwide compilation of registration and voting

statistics;7 (2) Congress should require all state registration and voting records to be made public

and preserved for a period of five years;8 and (3) the President should send federal registrars to

states with high levels of discrimination in voting.9 The Commission also recommended a

constitutional amendment that would establish universal suffrage based on standards of age and

 

1 U.S. COMM’N ON CIVIL RIGHTS, REPORT OF THE U.S. COMMISSION ON CIVIL RIGHTS XIII (1959), 

https://www.law.umaryland.edu/marshall/usccr/documents/cr11959.pdf, [hereinafter U.S. COMM’N ON CIVIL 

RIGHTS 1959]. The Commission’s first report also covered housing and public education issues, but the research and 

findings related to voting is discussed on pages 19-146. 2 Id. at 13. 3 Id. (noting that the Commission also held hearing in Louisiana voting in 1959 and other hearings and conferences 

on housing and education). 

4 Id. 

5 Id. at 41 (noting that these ten states included Alabama, Arkansas, Georgia, Florida, Louisiana, Mississippi, North 

Carolina, South Carolina, Texas, and Virginia). 

6 Id. at 55. 7 Id. at 136. 8 Id. at 138. 9 Id. at 138-39, 553-54. 
330 An Assessment of Minority Voting Rights Access

residence. Three of the Commission’s five recommendations were incorporated into the Civil

Rights Act of 1960. 10

1961—United States Commission on Civil Rights Report

The Commission released its second report in 1961, which followed up on the findings of the 1959

report, and examined the new controlling legislation (the Civil Rights Act of 1960).11 During this

time, the Commission relied on sworn complaints from across the country, testimony from field

hearings, statistics of voting registration by race, and a broad examination of the state of civil rights

regarding the right to vote in a number of southern counties where African Americans constituted

a minority of voters. During this four-year period, the Commission received 382 sworn complaints,

and all but three of these complaints were from southern states including Alabama, Arkansas,

Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee,

Texas, and Virginia.12 And in 1960, 53 percent of the African American population resided in

these 12 states.13

For this report, the Commission decided to have a field hearing in Louisiana with a similar format

to the previous field hearing in Alabama. A significant portion of the briefing report was dedicated

to the specific circumstances of Louisiana suppressing black voters. In addition, this report

examined the impact of both the Civil Rights Act of 1957 and the Civil Rights Act of 1960, as well

as recent and relevant federal litigation that could impact the state of voting rights around the

country.14 As a part of a very comprehensive report, the Commission also included information

and analysis on relevant racial gerrymandering issues.15

The Commission found that while voting discrimination did not exist everywhere across the

country, there were numerous cases of such discrimination in about a hundred counties in the

South.16 The most prevalent methods of discrimination were arbitrary registration procedures such

as demanding that voters interpret various sections of the Constitution, or requiring a high level of

precision and accuracy in filling out the application. The Commission recommended that: (1)

Congress acknowledge that voter qualifications other than age, residence, confinement, and

conviction of a crime have been used to deny citizens the right to vote based on race or color, and

Congress should enact legislation providing that all citizens of the U.S. shall have a right to vote;

and (2) Congress enact legislation making completion of six years of formal education sufficient

to pass literacy tests. Aspects of these recommendations can be found in the Voting Rights Act of

 

10 U.S. COMM’N ON CIVIL RIGHTS, 1961 U.S. COMMISSION ON CIVIL RIGHTS REPORT BOOK 1: VOTING, (1961) 76-8,

http://www.law.umaryland.edu/marshall/usccr/documents/cr11961bk1.pdf, [hereinafter U.S. COMM’N ON CIVIL 

RIGHTS, VOTING 1961] (noting that three of the Commission’s recommendations were incorporated into the Civil 

Rights Act of 1960). 

11 Id. at 76. 12 Id. at 21. 13 Id. 14 Id. at 22. 15 Id. at 122. 16 Id. at 133. 
Appendices 331

1965, which prohibited the use of “test and devices,” and directly prohibited any form of literacy

test.

1965—Voting Rights Act: The First Months

In 1965, the VRA was passed, which provided minority voters with protections against

discriminatory voting practices that had historically suppressed the minority vote. That same year,

the Commission released a report that analyzed the rollout of the VRA, and provided

recommendations on how the VRA could better achieve its goals.17 Within weeks of the bill

becoming federal law, staff attorneys at the Commission traveled to thirty-two southern counties

and parishes to study the implementation of the legislation.18 They also consulted with state and

county voting officers, as well as federal voting examiners and representatives of voter registration

organizations. This report also looked at the implementation of federal examiners required under

the VRA, and found that they faced a number of issues such as residency issues, illiteracy, and

disqualification for criminal conviction.19

The Commission found that there was compliance with the VRA in many areas of the South,

although several problems remained, such as the continued use of literacy tests in some counties,

and limiting the number of citizens who could register to vote each day.

20 They also found that the

Federal Examiner program was being effectively implemented, while recognizing that there would

be no fully accurate test of the VRA’s effects until the 1966 primary and general elections.21 The

Commission recommended that: (1) Federal examiners be appointed in all remaining jurisdictions

covered by the Act; (2) the Civil Service Commission begin an information program designed to

notify all unregistered persons of the process of registering; and (3) the responsible Federal

officials effectively prepare for the possible invocation of all enforcement procedures available

under the Act.22

Voting in Mississippi from 1960-1965

The Commission’s 1961 report entitled “Voting in Mississippi” raised concerns about the ability

of African-American citizens to register and vote in the state.23 The Commission scheduled a field

hearing in Mississippi in 1962, which was postponed at the request of the U.S. Attorney General.24

The Commission continued its investigation regardless, and in 1963, found that there had been

 

17 U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS ACT...THE FIRST MONTHS, (1965),

http://www2.law.umaryland.edu/marshall/usccr/documents/cr12V942.pdf, [hereinafter U.S. COMM’N ON CIVIL 

RIGHTS, THE FIRST MONTHS, 1965]. 18 Id. at 1. 19 Id. at 2. 20 Id. at 3. 21 Id. 22 Id. at 41-46. 23 U.S. COMM’N ON CIVIL RIGHTS, VOTING IN MISSISSIPPI (1959), 

https://www.law.umaryland.edu/marshall/usccr/documents/cr12v94.pdf, [hereinafter U.S. COMM’N ON CIVIL 

RIGHTS, MS 1965]. 24 Id. 
332 An Assessment of Minority Voting Rights Access

“open and flagrant violation[s] of constitutional rights in Mississippi.”25 In 1964, the Commission

attorneys chose a number of counties where African Americans were not able to successfully

register or vote and traveled to these counties to interview local African-American citizens, civil

rights workers, and local registration and law enforcement officials.26 In February 1965, the

Commission was finally able to hold its field hearing in Mississippi.27 At the hearing, the

Commission heard from more than thirty witnesses, and it was widely attended and highly

publicized.28 The Commission found that two distinct practices led to the suppression of the

African-American vote in Mississippi: the collection of poll taxes and registration tests that

required persons to interpret a section of the state constitution.29

Following the voting rights field hearing in Mississippi, the Commission issued a report detailing

Mississippi's voting rights abuses. In light of such abuses, the Commission unanimously endorsed

the voting rights bill then pending in Congress. Other details concerning this report, relevant

hearings, and its impact can be found in the Executive Summary and Chapter 1.

1968—Political Participation

This report examined black participation in the South after the passage of the VRA of 1965.30

Based on field investigations and analysis of the DOJ’s files, the Commission found that the

implementation of the VRA led to an expansion of black voter registration and turnout.31 The

Commission recommended that the Attorney General send federal examiners and observers to

enforce various sections of the VRA, and ensure that jurisdictions where test and devices were

suspended were complying with provisions of the VRA, particularly, with a specific interest in

observing jurisdictions under Section 5.32 The Commission also advised that sufficient funding be

earmarked to properly enforce the aforementioned recommendations.33

1975—Voting Rights Act: Ten Years After

The Commission set out to study the effects of the VRA and whether or not the promise of the

Fifteenth Amendment had been fulfilled.34 To conduct a comprehensive investigation, the

Commission staff conducted over two hundred interviews with county clerks, registrars, minority

 

25 Id. at V. 26 Id. 27 Id. at VI. 28 Id. 29 Id. at 13-14. 30 U.S. COMM’N ON CIVIL RIGHTS, POLITICAL PARTICIPATION (1968), 

http://www2.law.umaryland.edu/marshall/usccr/documents/cr12p753.pdf, [hereinafter U.S. COMM’N ON CIVIL 

RIGHTS, POLITICAL PARTICIPATION]. 31 Id. 32 Id. at 180-84. 33 Id. at 185. 34 U.S. COMM’N ON CIVIL RIGHTS, THE VOTING RIGHT ACT: TEN YEARS AFTER (1975), 

http://www2.law.umaryland.edu/marshall/usccr/documents/cr12v943a.pdf, [hereinafter U.S. COMM’N ON CIVIL

RIGHTS, VRA TEN YEARS LATER]. 
Appendices 333

candidates for office, and public officials in ten states covered for preclearance; examined court

decisions; monitored primaries and general elections (in the same 10 states); and analyzed DOJ’s

files.35 The counties that were chosen from the ten states were selected due to preliminary research

that indicated that there were still issues with minority participation in the democratic process, and

they represented both rural and urban areas.36 The Commission found that while the VRA had

helped the United States make substantial steps towards the goal of equal access to voting, there

were still examples of abuses; therefore, the VRA should not be allowed to expire in August of

1975.37

The Commission found that: (1) minority political participation in covered jurisdictions has

increased substantially; (2) the failure of state governments in covered jurisdictions to maintain

registration and turnout data by race hampered the ability to statistically evaluate progress; (3)

enforcement of the VRA had not fully reached its potential; (4) few jurisdictions made any

affirmative nonpartisan effort to register eligible persons; and (5) registration was still hampered

in many jurisdictions that offered very limited times and places to register.38

The Commission recommended that: (1) Congress extend the VRA for another 10 years; (2)

Congress extend the national suspension of literacy tests for another 10 years; (3) Congress amend

the VRA to levy civil penalties or damages against state and local officials who violate Section 5;

(4) DOJ take action to ensure that minority language speaking citizens receive adequate materials

in their language;39 and (5) DOJ strengthen its enforcement of Section 5.40 In 1975, when the VRA

was reauthorized Congress reauthorized the VRA’s temporary provisions for another seven years

and established a permanent ban on literacy tests.

1981—Voting Rights Act: Unfulfilled Goals

In 1981, the Commission studied whether voting discrimination still existed in jurisdictions

covered by the original preclearance provisions of the VRA that were under consideration for VRA

extension in 1982.41 Commission staff examined court cases on voting between 1975 and 1980, as

well as letters from the Justice Department to covered jurisdictions that objected to proposed

voting changes due to DOJ’s determination that they would be retrogressive and have a negative

impact on minority voters.42 Staff also asked major civil rights organizations about instances or

 

35 Id. at V-VI (noting that these ten states were Alabama, Arizona, California, Georgia, Louisiana, Mississippi, New 

York, North Carolina, South Carolina, and Virginia). 

36 Id. 37 Id. at Transmittal Letter. 38 Id. at 328. 39 In 1975, Congress amended the VRA to add Section 203, which included protections for language minorities. See

Voting Rights Act of 1965, Pub. L. No. 89-110, § 203 and Pub. L. 94-73, § 301 (codified as amended at 52 U.S.C. § 

10503). 

40 U.S. COMM’N ON CIVIL RIGHTS, VRA TEN YEARS LATER, supra note 34, at 336. 41 U.S. COMM’N ON CIVIL RIGHTS, THE VOTING RIGHTS ACT: UNFULFILLED GOALS (1981),

http://www2.law.umaryland.edu/marshall/usccr/documents/cr12v944a.pdf, [hereinafter U.S. COMM’N ON CIVIL 

RIGHTS, UNFULFILLED GOALS]. 42 Id. at 64. 
334 An Assessment of Minority Voting Rights Access

allegations of possible or actual denial of voting rights, and the Commission’s regional offices and

SACs provided information on reported voting problems and also made site visitsto polling places.

The Commission took an in-depth look at the jurisdictions that were subject to preclearance. It

also examined whether there was any effective enforcement of the minority language provisions

of the VRA, and found that there were none.43

The Commission ultimately found that the preclearance provisions of the VRA should be extended

for another ten years because racial and ethnic minorities in many covered jurisdictions still faced

problems accessing the ballot box, that the Act was designed to, but had not yet, resolved. The

1981 report also found that while there had been considerable progress in the number of minorities

holding elected office, minorities still constituted a small percentage of elected officialsin allstates

covered by the preclearance provisions.44 Further, there were still cases of voter intimidation in

the form of discourteous or hostile voter registration officials, and polling places were often only

located in predominantly white communities or areas not served by public transportation.45

The Commission recommended that: (1) Congress extend the VRA for another 10 years; (2)

Congress extend the minority language provisions for an additional 7 years; (3) Congress hold

hearings to determine whether a nationwide federal election law providing minimum standards for

registering and voting in Federal elections should be implemented; and (4) DOJ amend its

guidelines on the implementation of the minority language provisions to include specific criteria

for determining effective minority language.46 In 1982, when the VRA was reauthorized, Congress

reauthorized Section 5 of VRA for another 25 years and extended the bilingual language

requirement for 10 years.

2001—Voting Irregularities in Florida During the 2000 Presidential Election

For the 2001 report, the Commission held public hearings in Tallahassee and Miami, to investigate

allegations that Florida voters were prevented from casting ballots or that their ballots were not

counted during the 2000 Presidential Election.47 This investigation sought to determine whether

isolated or systematic practices and/or policies by governmental entities denied eligible Florida

citizens the right to vote, determine who made these decisions, why these decisions were made,

and what communities were affected. The Commission heard testimony from more than 100

witnesses, including the governor, the secretary of state, the attorney general, the director of the

 

43 Id. 44 Id. 45 Id. 46 Id. at 91. 47 U.S. COMM’N ON CIVIL RIGHTS, VOTING IRREGULARITIES IN FLORIDA DURING THE 2000 PRESIDENTIAL ELECTION 

(2001), https://permanent.access.gpo.gov/lps13588/lps13588/main.htm, [hereinafter U.S. COMM’N ON CIVIL RIGHTS,

VOTING IRREGULARITIES]. 
Appendices 335

Florida Division of Elections, the general counsel of the Florida Elections Commission, and

registered Florida voters, amongst others.48

This report concluded that many eligible Florida citizens were denied their right to vote, with the

disenfranchisement disproportionately affecting African Americans. In fact, black voters in

Florida were almost 10 times more likely than white voters to have their ballots rejected in the

2000 Presidential Election.49 This disenfranchisement was found to be a direct result of restrictive

statutory provisions, wide-ranging errors, aggressive purging of voters from the rolls based on

inaccurate data, and inadequate resources in the Florida election process.50 The Commission

recommended that Florida eliminate punch card voting, standardize voting technology and criteria,

formalize the use of provisional balloting, and create automatic restoration of voting rights for

persons with former felony convictions, amongst several other recommendations.51

2002—Voting Rights in Florida 2002: The Impact of the Commission’s Report and the Florida

Election Reform Act of 2001

In 2002, the Commission released an update to the 2001 report on voting irregularities in Florida.52

Several members of Congress acknowledged the role that the Commission and its report had on

bringing about election reform in the state of Florida and at the federal level.53 The election law

reform that passed in Florida addressed seven of the recommendations that the Commission had

made in the previous report, but did not address the Commission’s recommendations for removing

the burden for proving registration status from the voter, restoration of voting rights to persons

with former felony convictions, or improving access for LEP citizens and persons with disabilities.

The Commission held a second briefing in Florida during June 2002, to observe the

implementation and effects of the new reforms. The Commission found that the reforms did not

completely resolve the issues thatsurfaced in 2000, but that most of the recommendations provided

in the 2001 report had been addressed.54

2004—Is America Ready to Vote?

This report studied the state of the election system, specifically the implementation of the Help

America Vote Act (HAVA) of 2002.55 HAVA created a new mandatory minimum standard for

 

48 Id. Information also available in Executive Summary, http://www.usccr.gov/pubs/vote2000/report/exesum.htm

(last accessed Sept. 7, 2018). 

49 Id. at Chapter 9, http://www.usccr.gov/pubs/vote2000/report/ch9.htm. 50 Id. at 38-39. 51 Id. 52 U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS IN FLORIDA 2002: THE IMPACT OF THE COMMISSION’S REPORT 

AND THE FLORIDA ELECTION REFORM ACT OF 2001, (2002), www.usccr.gov/pubs/vote2000/imp0602.htm, 

[hereinafter U.S. COMM’N ON CIVIL RIGHTS, VOTING IN FLORIDA 2002]. 53 Id. 54 Id. 55 Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666 (codified as amended in scattered sections 

of 32 U.S.C., 56 U.S.C.). The Help America Vote Act of 2002 (HAVA) sets standards for rendering voting 

equipment, registration lists, and general election administration fair, accurate, and representative of the needs of 
336 An Assessment of Minority Voting Rights Access

states to follow in certain areas of election administration, and called for all states to have a central

computerized voter registration list.56 The goals of HAVA were to replace and modernize voting

machines, reform voter registration, provide better access to voting for the disabled, and provide

better poll worker training.57 In addition, HAVA established the federal Election Assistance

Commission (EAC), which is an independent, bipartisan commission charged with developing

guidance to meet HAVA requirements, adopt voting system guidelines, and serve as a national

clearinghouse of information on election administration. The EAC also certifies voting systems

and audits the use of HAVA funds.58 While the HAVA legislation was promising at the time of its

passing, implementation of the Act has been slow, and a large number of states have been granted

waivers or extensions.59

The Commission has consistently offered findings and recommendations in its numerous reports

on how to ensure that the U.S. voting system is equitable for all citizens, and all citizens have the

right to vote. Based on the 2001 investigation in Florida, the Commission provided 12

recommendations on how to enhance the country’s readiness for the 2004 election, which

included: (1) getting organized—states should create checklists of tasks that need to be completed

before the election; (2) train poll workers—this should include making sure they are aware of the

HAVA provisional ballot procedures, ID requirements, voting rights laws, and ensuring access to

the ballot box for persons with disabilities and limited-English proficiency; (3) have at least one

supervisory staff member at each polling place; (4) check registration lists for accuracy, and inform

registrants whose voter eligibility might be in question; (5) test voting equipment; (6) develop

ballots early for usability and send voters sample ballots before the election; (7) perform trial runs

in precincts that have had voter access issues in the past; (8) develop voter instructional materials

for their specific voting machines; (9) develop multiple language materials based on the

requirements of the VRA and test these materials prior to the election for accuracy and usability;

(10) examine polling places for accessibility prior to the election; (11) review felon lists; and (12)

conduct registration drives.60

2006—Reauthorization of the Temporary Provisions of the Voting Rights Act: An Examination

of the Act’s Section 5 Preclearance Provision

This report summarized expert testimony from the October 2005 briefing, which analyzed the

effectiveness of Section 5, and offered recommendations to Congress on how to renew expiring

 

voters. See also HAVA of 2002, Pub. L. No. 107-252, https://www.gpo.gov/fdsys/pkg/PLAW107publ252/pdf/PLAW-107publ252.pdf (last accessed June 11, 2018) for more information. 56 U.S. Election Assistance Commission, Help American Vote Act, U.S. EAC, https://www.eac.gov/about-the-useac/

(last accessed May 25, 2018) [hereinafter, U.S. EAC, HAVA]. 57 Id. 58 Id. 59 Id See also U.S. COMM’N ON CIVIL RIGHTS, VOTING IN FLORIDA 2002, supra note 52, at 24. 60 U.S. COMM’N ON CIVIL RIGHTS, VOTING IN FLORIDA 2002, supra note 52, at 38-39. 
Appendices 337

sections of the VRA.61 Based on expert testimony and research, the Commission recommended

that Congress conduct hearings and collect expert testimony on the progress that has been made in

securing voting rights for minorities in covered and non-covered jurisdictions. Further, the

Commission urged Congress to evaluate the Section 5 formula and possibly offer amendments that

would withstand judicial scrutiny.

2006—Voting Rights Enforcement & Reauthorization

This report analyzed the DOJ’s VRA enforcement efforts since 1965, in order to offer the President

and Congress a factual record with which to consider the 2006 VRA reauthorization.62 The DOJ’s

Civil Rights Division had approved more than 99 percent of all preclearance submissions, and

enforcement of the language minority requirements had greatly increased since the Commission’s

1981 report, which found that this requirement was only minimally, if at all, enforced. This report

found that DOJ objections to preclearance submissions had declined steadily over the VRA’s 40-

year existence, almost to the point that objections were nonexistent. This report provided data to

Congress illustrating the successes of Section 5 and equipped them with the tools to decide how

to proceed in deciding to reauthorize.63 However, due to the lack of a majority vote of

commissioners, this report was released without findings and recommendations.64

2008—Voter Fraud and Voter Intimidation

On October 13, 2006 the Commission held a briefing on the topic of Voter Fraud and Voter

Intimidation.65 Based on the oral and written testimony by panelists at the briefing, the

Commission created a list of findings and recommendations for Congress.66 The report found flaws

in the electoral process that caused both fear and doubt in the U.S. voting process.67 Specifically,

that both fraud and intimidation disenfranchise voters and weaken the overall political system.68

Thus, the Commission found that achieving accurate voter rolls seems to be essential in assuring

civilians that elections are accurate and have full participation of the voting public. The

Commission also offered recommendations that state and municipal governments improve poll

worker training, and that states adopt a photo ID requirement for both registration and voting.69

 

61 U.S. COMM’N ON CIVIL RIGHTS, REAUTHORIZATION OF THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS ACT:

AN EXAMINATION OF THE ACT’S SECTION 5 PRECLEARANCE PROVISION, (2006), 

http://www2.law.umaryland.edu/marshall/usccr/documents/vrabriefingpaper_2-22-06.pdf. 62 U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS ENFORCEMENT & REAUTHORIZATION: THE DOJ’S RECORD OF 

ENFORCING THE TEMPORARY VOTING ACT PROVISIONS, (2006), 

http://www2.law.umaryland.edu/marshall/usccr/documents/051006VRAStatReport.pdf. 63 Id. 64 Id. 65 U.S. COMM’N ON CIVIL RIGHTS, VOTER FRAUD AND VOTER INTIMIDATION, 1, (2008), 

http://www2.law.umaryland.edu/marshall/usccr/documents/cr12v962006.pdf. 66 Id. 67 Id. at 16. 68 Id. 69 Id. at 17. 
338 An Assessment of Minority Voting Rights Access

2009—DOJ Voting Rights Enforcement

On June 6, 2008, the Commission held a briefing to review the DOJ’s plans to monitor voting

rights enforcement in the 2008 U.S. Presidential election.

70 The report stated that both the Voting

Section of the Civil Rights Division and the Public Integrity Section of the Criminal Division play

an important role in enforcing voting rights, and found that ensuring the right to vote for overseas

military personnel was still a serious problem.71 The recommendations included urging the DOJ

to: (1) combat voter fraud and initiate action to prevent illegal voting, and (2) take aggressive steps

to ensure that all states comply with HAVA’s requirement that each state implement an official

computerized voter registration list.72

2012—Redistricting and the 2010 Census: Enforcing Section 5 of the Voting Rights Act

For this report, the Commission examined the DOJ’s preclearance efforts during the 2011-2012

redistricting cycle, including their preclearance process since the 2006 amendments to the VRA.73

This data included responses from state officials within jurisdictions covered under Section 5 of

the VRA after the 2006 amendments.74 These amendments included extending the VRA for

another 25 years, extending the prohibition against the use of tests or devices, and extending the

requirement for state and local governments to provide voting materials in multiple languages.75

The 2006 law also amended the VRA regarding: (1) the use of election examiners and observers;

(2) voting qualifications or standards intended to diminish, or with the effect of diminishing the

ability of U.S. citizens on the basis of race or color to elect their preferred candidate; and (3)

awarding attorney fees in enforcement proceedings to include expert fees and other reasonable

litigation costs.76 The DOJ then released guidelines on how to enforce the new amendments, and

the effectiveness of the amendments were tested as state and local governments devised new

redistricting plans utilizing population data from the 2010 Census.

During this process, the Commission: held a briefing on February 3, 2012; submitted extensive

discovery requests to DOJ seeking records, answers to interrogatories, and data regarding the

preclearance process; submitted requests for information and records to 10 states regarding their

experiences in the preclearance process; reviewed all objections issued by DOJ since 2000;

conducted legal and documentary research; and tracked DOJ’s preclearance proceedings via

 

70 U.S. COMM’N ON CIVIL RIGHTS, DEPARTMENT OF JUSTICE VOTING RIGHTS ENFORCEMENT FOR THE 2008 U.S.

PRESIDENTIAL ELECTION (2009), http://www2.law.umaryland.edu/marshall/usccr/documents/cr182d2009.pdf. 71 Id. 72 Id. 73 U.S. COMM’N ON CIVIL RIGHTS, REDISTRICTING AND THE 2010 CENSUS: ENFORCING SECTION 5 OF THE VOTING 

RIGHTS ACT, (2012), https://www.usccr.gov/pubs/docs/2012_statutory.pdf. 74 Id. at Transmittal Letter. 75 Press, Release, The White House, President George W. Bush, Office of the Press Secretary, Fact Sheet: Voting 

Rights Act Reauthorization and Amendments Act of 2006 (July 26, 2006), https://georgewbushwhitehouse.archives.gov/news/releases/2006/07/20060727-1.html. 76 Id. 
Appendices 339

publicly accessible sources.77 But due to the inability to garner a majority vote, the Commission

released this report without specific findings and recommendations.

2016—Increasing Compliance with Section 7 of the National Voter Registration Act

The Commission’s 2016 report examined state compliance with Section 7 of the National Voter

Registration Act (NVRA)’s mandate to provide voter registration forms and assistance to those

utilizing public assistance and disability agencies, and efforts by the DOJ and private citizens to

enforce the mandate.78 The report also looked at trends of voter registration modernization,

including electronic and automatic registration, and the use of health benefit exchanges to register

voters.79 Some of the findings of this report stated that: providing voter registration at public

assistance offices would increase the registration of racial minorities, citizens with disabilities, and

those with limited-English proficiency, and that litigation is an effective tool to enforce state

compliance with Section 7 of the NVRA.80 Some of the recommendations included that: Congress

should provide resources for states to learn about new voting technology and offer incentives to

invest in technology that would streamline data processing in order to improve compliance with

Section 7, and the EAC should encourage states to move to electronic voter registration systems.

81

As a result, we could note more states are adopting Automatic Voter Registration.

Voting Rights—Related Educational Reports

Besides issuing reports with findings and recommendations to the President and Congress, the

Commission has issued educational reports for general public consumption that would both inform

and instruct the public on the complexities of voting rights laws. Below is a review of these

aforementioned reports.

1971—Summary and Text of the VRA of 1965 as amended by the VRA of 1970

In September of 1971, the USCCR released a summary of the VRA detailing the changes that

resulted from the 1970 VRA amendments.82 The Commission stated that the amended VRA of

1970: (1) prohibited the use of literacy tests for five years; (2) permitted 18-year-olds to vote in

any general or primary election for federal office; (3) assured that residency requirements would

no longer prevent citizens from voting for President and Vice President; (4) provided for the

assignment of federal examiners to conduct registration, and of federal observers to observe voting

in states or counties covered by the preclearance provisions of the Act; (5) required federal

 

77 Id. at 4. 78 U.S. COMM’N ON CIVIL RIGHTS, INCREASING COMPLIANCE WITH THE SECTION 7 OF THE NATIONAL VOTER 

REGISTRATION ACT, (2016), https://www.usccr.gov/pubs/docs/NVRA-09-07-16.pdf. 79 Id. 80 Id. at 45. 81 Id. However, since then, more states have moved to Automatic Voter Registration. See Appendix C. 82 U.S. COMM’N ON CIVIL RIGHTS, THE VOTING RIGHTS ACT: SUMMARY AND TEXT (1971),

http://www2.law.umaryland.edu/marshall/usccr/documents/cr11032.pdf. 
340 An Assessment of Minority Voting Rights Access

preclearance of new voting laws or procedures in covered states or counties; and (6) extended

protections to qualified persons seeking to vote and to those who urge or aid others to vote.83

1976—Using the Voting Rights Act

Released in April of 1976, this report detailed the VRA of 1965 by summarizing the Act, including

both the general and special provisions, and providing the actual full text of the law.84

1977—The Unfinished Business: Twenty Years Later

This report contains a summary of reports released by the Commission’s SACs,

85 and all 51 of the

SAC reports and appendices, and also contains a roster of the regional offices and a chart of SAC

publications to date.86 In these reports, the SACs identified prominent civil rights issues within

their communities and described the current status of these issues in their historical context. In

1977, the Commission’s summary showed that voting rights and the election of minority office

holders was a recurring theme in a number of SAC reports87

1983—State of Civil Rights

This report covered an array of civil rights issues that the Commission worked on since its

inception, including but not limited to, voting rights, educational disparities, and housing

discrimination.88 This report was a summation of the Commission’s accomplishments, and an

assessment of civil rights progress in the 26 years of its existence. Specifically, the Commission

noted that many of their recommendations had been enacted by Congress and resulted in

significant progress in increasing the political participation of minority voters.89

1984—Citizens Guide to Understanding the Voting Rights Act

Released in October of 1984, this report detailed the VRA of 1965’s voter rights protections, and

its subsequent amendments. This report was designed to educate the general public on the VRA’s

nuances, protections, and effects.90

 

83 Id. 84 U.S. COMM’N ON CIVIL RIGHTS, USING THE VOTING RIGHTS ACT, (1976),

http://www2.law.umaryland.edu/marshall/usccr/documents/usingthevra.pdf. 85 Notably, SAC reports on voting rights continue to be very relevant to current conditions. See Appendix D. 86 U.S. COMM’N ON CIVIL RIGHTS, THE UNFINISHED BUSINESS TWENTY YEARS LATER . . . (1977),

http://www2.law.umaryland.edu/marshall/usccr/documents/cr12un2.pdf. 87 Id. 88 U.S. COMM’N ON CIVIL RIGHTS, STATE OF CIVIL RIGHTS 1957- 1983: THE FINAL REPORT OF THE U.S.

COMMISSION ON CIVIL RIGHTS, (1983), http://www2.law.umaryland.edu/marshall/usccr/documents/stacivrifra.pdf. 89 Id. at 5. 90U.S. COMM’N ON CIVIL RIGHTS, A CITIZEN’S GUIDE TO UNDERSTANDING THE VOTING RIGHTS ACT, (1984),

http://www2.law.umaryland.edu/marshall/usccr/documents/cr11084z.pdf. 
Appendices 341

1992—Civil Rights Update

This publication was released as a short magazine of notable news stories providing a snapshot of

the state of civil rights across the nation in 1992.91 Issues such as police brutality, enforcement of

civil rights and equal opportunity laws, language assistance for voters, hate groups, and border

control were all succinctly discussed in the eight pages of the report.92

 

91 U.S. COMM’N ON CIVIL RIGHTS, CIVIL RIGHTS UPDATE, (1992),

http://www2.law.umaryland.edu/marshall/usccr/documents/cr1159924.pdf. 92 Id. 
342 An Assessment of Minority Voting Rights Access

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Appendices 343

APPENDIX B: CONGRESSIONAL RESPONSES TO THE 

SHELBY COUNTY DECISION

The 113th Congress—The Sensenbrenner-Conyers-Leahy Trigger

On January 16, 2014, Senator Patrick Leahy (D-VT) and Congressmen Sensenbrenner (R-WI) and

Conyers (D-MI) offered bipartisan legislation that included a new formula to replace the 2006

reauthorization formula. The Voting Rights Amendment Act (H.R. 3899/S. 1945) included a

trigger that would cover:

x Any state within which there were five or more violations of the 14th or 15th Amendment, 

the VRA, or any other federal law that prohibits racial discrimination in voting, with at 

least one of the violations committed by the state itself (as opposed to a political 

subdivision within the state) during the previous 15 years;1

x Any county or other political subdivision with three or more such violations, during the 

previous 15 years;2 or

x Any county or other subdivision with at least one violation in the past 15 years, if the 

subdivision also had “extremely low minority turnout” during the same time period.3

As in the past, the covered states would have to submit subsequent electoral changes or election

administration for federal preclearance under Section 5 before they could be implemented.4 When

introduced in January 2014, the proposed trigger would have covered Georgia, Louisiana,

Mississippi, and Texas.5 The updated formula was much more limited compared to the list of states

that were previously covered for any voting changes—Alabama, Alaska, Arizona, Georgia,

Louisiana, Mississippi, South Carolina, Texas—along with counties in California, Florida, New

York, North Carolina, South Dakota, and Virginia, where many statewide changes also had to be

precleared if they were to be implemented in the covered counties.

The violations that trigger preclearance could be court orders or Attorney General objections to

proposed changes found to be in violation of Section 5, but the coverage formula specifically

excluded Attorney General objections to voting rights violations “based on the imposition of a

requirement that a person provide a photo identification as a condition for receiving a ballot for

voting in a Federal, State or local office.”6

The language of the proposed formula would not have counted as violations consent decrees or

emerging ongoing litigation in major cases taking years to resolve, as the language would have

 

1 H.R. 3899 §§ 2(a), 3(b)(1)(A), 113th Cong. (2013). 

2 H.R. 3899 § 3(b)(1)(B)(i), 113th Cong. (2013). 

3 H.R. 3899 § 3(b)(1)(B)(ii), 113th Cong. (2013). 

4 See H.R. 3899, 113th Cong. (2013); see also Charles S. Bullock III, Ronald Keith Gaddie, and Justin L. Wert, The 

Rise and Fall of the Voting Rights Act 183 (2016) (Norman: University of Oklahoma Press) [hereinafter Bullock, 

Gaddie, and Wert, Rise]. 5 Bullock, Gaddie, and Wert, Rise, supra note 4, at 184. 6 H.R. 3899 § 2(a), 113th Cong. (2013). 
344 An Assessment of Minority Voting Rights Access

only counted “a final judgment (which has not been reversed on appeal), any court of the United

States[.]”7 Also, the Voting Rights Amendment Act was offered at a time when major litigation

regarding discriminatory voter ID laws had just begun in the post-Shelby County era and the issue

of whether and how strict voter ID laws could violate the VRA was unclear—and the proposed

formula would have specifically excluded Attorney General objections to discriminatory voter ID

laws (but not any other Attorney General objections) as counting towards the coverage formula.8

The Amendment Act also included: (1) an amended Section 3(c) that would have expanded the

types of violations that trigger a court to retain jurisdiction in a state or political subdivision, such

that all VRA violations, and not only constitutional violations, could trigger judicial

preclearance—permitting jurisdictions to be bailed into preclearance without having to prove

intentional discrimination; (2) a requirement that states or covered jurisdictions provide public

notice of changes in prerequisites, standards, practices, or procedures that were different from

those in effect 180 days before the election, allowing grassroots organizations and observers to

enjoin electoral changes that may have a discriminatory effect;9 (3) an option for the Attorney

General to assign observers on a national basis to enforce the 14th and 15th Amendments, the VRA,

and any other law to protect voting rights; and (4) a loosening of the requirements for preliminary

injunctive relief to include: (a) not only constitutional violations but also more clearly with regard

to all of the provisions of the VRA; and (b) granting the relief if the hardship imposed on the

defendant would have been less than the hardship imposed on the plaintiff if relief were not

granted.10

The Speaker of the House, Congressman John Boehner, and the Senate Minority Leader, Senator

Mitch McConnell, declined to the endorse the Amendment Act.

11 The bill’s sponsor, Senator

Sensenbrenner of Wisconsin, emphasized the voter ID exception.12 In addition, of the 177

cosponsors of H.R. 3899 only 11 were Republican.13 On the Senate side, S. 1945 had 12

cosponsors, none of whom were Republican.14

Besides the Senate Judiciary hearing, the bill underwent no further action during the 113th

Congress.

 

7 H.R. 3899 § 3,113th Cong. (2013). 

8 H.R. 3899 § 2(a), 113th Cong. (2013). 

9 Kevin J. Coleman, The Voting Rights Act of 1965: Background and Overview, CONG. RESEARCH SERV. 24 (2015), 

https://fas.org/sgp/crs/misc/R43626.pdf [hereinafter Coleman, The Voting Rights Act of 1965]; see also Bullock, 

Gaddie, and Wert, Rise, supra note 4, at 184. 10 H.R. 3899 passim, 113th Cong. (2013). 11 Jim Rutenberg, Nine Years Ago, Republicans Favored Voting Rights. What Happened?, N.Y. TIMES (Aug. 12, 

2015), https://www.nytimes.com/2015/08/12/magazine/nine-years-ago-republicans-favored-voting-rights-whathappened.html. 12 See Carrie Johnson, Lawmakers Roll Out Voting Rights Act Fix, NATIONAL PUBLIC RADIO (Jan. 16, 2014), 

https://www.npr.org/sections/itsallpolitics/2014/01/16/263113258/lawmakers-roll-out-voting-rights-act-fix. 13 Cosponsors: H.R. 3899-113th Cong., https://www.congress.gov/bill/113th-congress/house-bill/3899/cosponsors. 14 Id. 
Appendices 345

The 114th Congress

In May 2015, after consulting with tribal leaders across the nation, DOJ found that effectively,

Native Americans had to travel up to 100 miles in order to vote, and had to travel farther distances

compared to whitesin a number ofstates.15 Thisled the DOJ to produce Draft Legislation requiring

jurisdictions “whose territory includes part or all of an Indian reservation, an Alaska Native village,

or other tribal lands to locate at least one polling place in a venue selected by the tribal

government,” and requiring an equal number of resources at those polling sites.16 Senators Tester

(D-MT), Heitkamp (D-ND), Udall (D-NM), and Franken (D-MN) introduced a version of this

draft as the Native American Voting Rights Act of 2015 (S. 1912), requiring the establishment of

polling places on reservations at the request of tribes, including during early voting, and directing

state election officials to mail absentee ballots to all registered voters if requested by the tribe.17

However, this bill was only referred to the Senate Judiciary Committee and never given a

hearing.18

In June of 2015, Congressional Democrats introduced the Voting Rights Advancement Act of

2015.19 Congresswoman Terri Sewell, Senator Patrick Leahy, and leaders of the Congressional

Black Caucus, Congressional Hispanic Caucus, and Congressional Asian Pacific American

Caucus introduced it via companion bills H.R. 2867 and S. 1659.20 As with the Voting Rights

Amendment Act introduced in the 113th Congress, this bill struggled to obtain bipartisan support.

All of the 107 House cosponsors of H.R. 2867 were Democrats.21 However, Senator Lisa

Murkowski, a Republican from Alaska, endorsed the Voting Rights Advancement Act of 2015

 

15 Samantha Lachman, Justice Department Voting Rights Proposal Could Make A Huge Difference For Native 

Americans, HUFFINGTON POST (May 28, 2015), https://www.huffingtonpost.com/entry/voting-rights-nativeamericans-_n_7463126.html. 16 Dept. of Justice, Department of Justice Proposes Legislation to Improve Access to Voting for American Indians 

and Alaskan Natives, (May 15, 2015), https://www.justice.gov/opa/pr/department-justice-proposes-legislationimprove-access-voting-american-indians-and-alaska; See also Dept. of Justice, Tribal Equal Access to Voting Act of 

2015(Draft Legislation), https://www.justice.gov/file/440986/download. 17 S. 1912, 114th Cong. (2015), https://www.congress.gov/bill/114th-congress/senatebill/1912?q=%7B%22search%22%3A%5B%22%5C%22native+american+voting+rights+act%5C%22%22%5D%7

D&r=1. 18 Id. 19 S. 1659, 114th Cong. (2015), https://www.congress.gov/bill/114th-congress/senate-bill/1659 (states with 15 

violations over the past 25 years, or 10 violations if one was statewide, must submit future electoral changes for 

federal approval under Section 5); See also Athena Jones, Congressional Democrats File Legislation to Update the 

Voting Rights Act, CNN (June 25, 2015), http://www.cnn.com/2015/06/24/politics/voting-rights-act-democrats-filebill/. 20 S. 1659, 114th Cong. (2015), https://www.congress.gov/bill/114th-congress/senate-bill/1659; H.R. 2867, 114th 

Cong. (2015), https://www.congress.gov/bill/114th-congress/house-bill/2867. 

21 Jesse H. Rhodes, Ballot Blocked: the Political Erosion of the Voting Rights Act, 177, (2017) (Stanford University 

Press).
346 An Assessment of Minority Voting Rights Access

reasoning that the Native American and other indigenous communitiesin herstate faced significant

ongoing barriers to voting rights.

22

The Advancement Act would restore Section 5 preclearance by requiring states with 15 voting

violations over the past 25 years to submit their future election changes for federal approval to

review whether they would be discriminatory before they could be implemented.23 This coverage

formula mimics the system that was in place under the pre-Shelby County VRA that sought to hold

discriminatory jurisdictions accountable, with one critical difference: the new formula is “rolling,”

such that jurisdictions automatically fall out of coverage if they no longer fall under the formula.

For example, if a jurisdiction had 15 violations in the last 25 years, but one of those violations

occurred in the first year of that 25-year period, then that jurisdiction would fall out of the coverage

the next year unless there was a new violation. The proposed formula would have covered 13

states: Alabama, Arkansas, Arizona, California, Florida, Georgia, Louisiana, Mississippi, New

York, North Carolina, South Carolina, Texas, and Virginia.24 Unlike previous legislative proposals

to the preclearance formula, the Advancement Act would not exclude Attorney General objections

to discriminatory voter ID bills, nor would it exclude consent decrees, or determinations of voting

rights violations based on non-VRA state or federal voting rights legislation (such as the NVRA).25

The Advancement Act would also make it easier for federal courts to approve preliminary

injunctions in VRA cases, and it would make the judicial preclearance remedy in Section 3(c)

more accessible by eliminating the current requirement to prove intentional discrimination.26

The Advancement Act would also be more clearly national and abide by the theory of equal state

sovereignty, as it would require federal approval for certain types of election changes that have

historically been found to be discriminatory no matter where they occurred in the nation and

regardless of whether the jurisdiction had a history of discrimination in voting. Specifically, it

would require preclearance of any of the following types of voting changes: more (but not less)

restrictive voter ID laws, proof of citizenship requirements, changes to polling place locations

including reduction in the number of polling places, and reductions in the accessibility of language

materials (as covered by the minority language provisions of the VRA).27 Moreover, changes that

may involve racial gerrymandering would have to be precleared in any jurisdiction in the country

with two or more racial or language minority groups in which one represents 20 percent of the

 

22 See Ari Berman, Restoring the Voting Rights Act Now Has Bipartisan Support, THE NATION (Sept. 10, 2015), 

https://www.thenation.com/article/restoring-the-voting-rights-act-now-has-bipartisan-support/. 23 Coleman, The Voting Rights Act of 1965, supra note 9, at 25. 24 Id. at 25. In the most recent Congress, the same version of the bill was introduced. See Voting Rights 

Advancement Act of 2017, H.R. 2978, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/housebill/2978/cosponsors?q=%7B%22search%22%3A%5B%22hr2978%22%5D%7D&r=1. 25 See, e.g., Sen. Patrick Leahy, Voting Rights Advancement Act of 2015, Section by Section, 

https://www.leahy.senate.gov/imo/media/doc/Voting%20Rights%20Advancement%20Act%20-

%20Section%20by%20Section%20%286-24-15%29.pdf. 26 Id.; see also Discussion and Sources cited at supra notes 347-50 (difficulty of getting judicial preclearance shown 

in few 3(c) remedies have been granted) and notes 1314-18 (few preliminary injunctions awarded in successful 

VRA cases in the post-Shelby County era). 27 Id. at § 5. 
Appendices 347

voting-age population, or any in which a single language minority group representing more than

20 percent of the voting-age population is located in whole or in part on an Indian reservation.28

The 115th Congress

Congresswoman Terri Sewell and Senator Patrick Leahy most recently reintroduced their bill as

the Voting Rights Advancement Act of 2017.29 The House version of the bill obtained 180

cosponsors30 while the Senate version of the bill had 48 cosponsors, most of whom were

Democrats.31 As with the Advancement Act of 2015, this bill would nationalize preclearance by

revising the coverage formula to apply to all states which demonstrate records of voting rights

violations over the previous 25-year period, and it requires preclearance of certain forms of voting

changesthat have been discriminatory in the past, no matter where they occur.32 The House version

was referred first to the Committee on the Judiciary then to the Subcommittee on the Constitution

and Civil Justice. The Senate version was referred to the Committee on the Judiciary.

33

Similarly, the Sensenbrenner bill was reintroduced in the House as the Voting Rights Amendment

Act of 2017, and referred to the Committee on the Judiciary, which then referred it to the

Subcommittee on the Constitution and Civil Justice.

34 But it has not yet received a hearing.35

 

28 Id. 29 S. 1419, 115th Cong. (2017); H.R. 3239, 115th Cong. (2017). 30 Cosponsors - H.R. 3239, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/housebill/3239/cosponsors. 31 Cosponsors - S. 1419, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/senatebill/1419/cosponsors. 32 S. 1419, § 4(b)(1), 115th Cong. (2017). 33 H.R. 2978, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/2978/relatedbills?q=%7B%22search%22%3A%5B%22hr2978%22%5D%7D&r=1. 34 H.R. 3239, 115th Congress (2017), https://www.congress.gov/bill/115th-congress/house-bill/3239. 35 Id.
348 An Assessment of Minority Voting Rights Access

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Appendices 349

APPENDIX C: AUTOMATIC VOTER REGISTRATION

In 2014, 1.9 million Americans failed to register to vote because they did not know how to do so.1

Strict and odd registration deadlines also led to 4.1 million Americans in 2014 not being able to

vote.2 Automatic Voter Registration (AVR) allows eligible citizens who interact with government

agencies to automatically register to vote. Furthermore, these government agencies (such as the

DMV) can transfer voter registration information to election officials so they know which citizens

are registered. As the Brennan Center reported, this creates a “seamless process” that is convenient

and less “error-prone” for not only voters but also government officials.3 Some voting rights

scholars argue that AVR increases voter registration rates, “cleans up” the voter rolls, makes voting

more convenient, and limits the prevalence of voter fraud.4

The introduction of AVR is relatively recent. The first AVR legislation was passed in Oregon in

2015. This specific law automatically registered eligible citizens who had a driver’s license. As a

direct result of the new AVR law in Oregon, the state boosted the highest percentage of voting age

citizens in Oregon’s history. Specifically, 70.4 percent of the state’s voting age population voted

in November 2016.5 The new AVR law in Oregon is more colloquially known as the “Motor Voter

Act.” It took effect in January 2016 and allows those who have “qualifying interactions” at the

DMV to vote. These interactions consist of an interaction between an eligible unregistered voter

and a DMV official for the purposes of applying for, renewing, or replacing an Oregon driver’s

license, ID card, or permit.6 Residents are then sent an Oregon Motor Voter (OMV) card and have

21 days to respond and choose to decline to register to vote, choose a political party, or remain

registered but not affiliated to any political party. Only 6 percent of citizens in Oregon chose to

opt out of being automatically registered to vote.

7 This allows any application for a driver’s license

to serve as an application to register to vote, to update voter registration, and perform other

functions.8 But one downside is that under the current Oregon model, only voters with a state

 

1 Henry Kraemer, Liz Kennedy, Maggie Thompson, Danielle Root & Kyle Epstein, Millennial Voters Win With 

Automatic Voter Registration 6, CENTER FOR AMERICAN PROGRESS (July 19, 2017), at 6, 

https://cdn.americanprogress.org/content/uploads/2017/07/18151441/MillennialAVR-report.pdf. 2 Liz Kennedy, Lew Daly & Brenda Wright, Automatic Voter Registration: Finding America’s Missing Voters 5, 

DEMOS (2015), at 9, http://www.demos.org/sites/default/files/publications/AVR_0.pdf. 3 BRENNAN CENT. FOR JUSTICE, THE CASE FOR AUTOMATIC VOTER REGISTRATION, 1, (2016),

https://www.brennancenter.org/sites/default/files/publications/Case_for_Automatic_Voter_Registration.pdf 

[hereinafter BRENNAN, Case for AVR]. 4 Id. 5 Betsy Hammond, Oregon Voters Shattered Previous Participation Rates in November 2016, OREGONIAN (Dec. 12, 

2016), http://www.oregonlive.com/politics/index.ssf/2016/12/oregon_voters_shattered_previo.html. 6 State of Oregon, Secretary of State, Oregon Motor Voter Act FAQ, http://sos.oregon.gov/voting/Pages/motorvoter-faq.aspx. 7 Ari Berman, Automatic Voter Registration in Oregon is Revolutionizing American Democracy, THE NATION (May 

16, 2016), https://www.thenation.com/article/automatic-voter-registration-in-oregon-is-revolutionizing-americandemocracy/. 8 S. 1933, 100th Gen. Assemb. (Ill. 2017). 

http://www.ilga.gov/legislation/BillStatus.asp?DocNum=1933&GAID=14&DocTypeID=SB&SessionID=91&GA=

100. 
350 An Assessment of Minority Voting Rights Access

driver’s license or state ID card will benefit from AVR; and there are inherent racial disparities in

leaving out voters who interact with social services and other federally funded agencies that are

required by the National Voter Registration Act (NVRA) to register voters.9

Following Oregon, California passed an AVR law in October of 2015 and Vermont followed with

HB 458 in April of 2016.10 Table 14 below shows the states that have adapted some form of AVR,

according to the National Conference of State Legislatures, as of April 18, 2018.

 

9 See, e.g., U.S. COMM’N ON CIVIL RIGHTS, REPORT OF THE U.S. COMMISSION ON CIVIL RIGHTS, INCREASING 

COMPLIANCE WITH SECTION 7 OF THE NATIONAL VOTER REGISTRATION ACT (Sept. 7, 2016) (2017) (including data 

show that increasing voter registration at NVRA agencies would benefit minority voters, who are disparately 

represented at such agencies), http://www.usccr.gov/pubs/NVRA-09-07-16.pdf; see also Discussion and Sources 

cited supra notes 356-361 (N.C.) and 406-26 (Tex.) (strict photo voter ID laws disparately impact black and Latino 

voters in North Carolina and Texas, as they are less likely to interact with the DMV, and DMV locations are less 

accessible due to ongoing socioeconomic disparities such as lack of time and transportation). 10 National Conference of State Legislatures, Automatic Voter Registration, NCSL, (Apr. 18, 2018), 

http://www.ncsl.org/research/elections-and-campaigns/automatic-voter-registration.aspx.
Appendices 351

Table 14

STATES THAT HAVE ENACTED AUTOMATIC VOTER REGISTRATION*

Note that this table includes only states that self-report that they have “automatic registration.”

State

Year

Enacted Bill Number

Year

Implemented Type of Opt-Out

Alaska 2016 Measure 1 2017 Notification sent

California 2015 A 1461 n/a During agency 

transaction

Colorado 2017 Done through Department of Motor 

Vehicles system

2017 During agency 

transaction

Connecticut 2016 Agreement between Secretary of State

and Department of Motor Vehicles

n/a During agency 

transaction

District of 

Columbia

2016 B21-0194 n/a During agency 

transaction

Illinois 2017 SB 1933 n/a During agency 

transaction

Maryland 2018 SB 1048 July 2019 During agency 

transaction

New Jersey 2018 AB 2014 n/a During agency 

transaction

Oregon 2015 HB 2177 2016 Notification sent

Rhode Island 2017 HB 5702 n/a During agency 

transaction

Vermont 2016 HB 458 2017 During agency 

transaction

Washington 2018 HB 2595 n/a During agency 

transaction

West Virginia 2016 HB 4013 n/a During agency 

transaction

Source: Automatic Voter Registration, NATIONAL CONFERENCE OF STATE LEGISLATURES (Apr. 18,

2018), http://www.ncsl.org/research/elections-and-campaigns/automatic-voter-registration.aspx

Each state has adopted AVR in different ways. For example, in California, the law now allows the

DMV to electronically transmit information to the California Secretary of State about eligible

voters to be added to the voter rolls.11 This is similar to the model in Oregon. The Illinois model

does not limit AVR to register voters from the DMV database, but it is more expansive and allows

AVR from social service agencies.

In addition to the AVR laws already enacted, 32 states have introduced AVR proposals in 2017.

12

The most recentstates to pass AVR legislation are Maryland and New Jersey. Similar to the Illinois

 

11 Cal. Elec. Code §§ 2260-2270. 12 Brennan Cent. for Justice, Voting Laws Roundup 2017, BRENNAN CENT. FOR JUSTICE (May 10, 2017), 

https://www.brennancenter.org/analysis/voting-laws-roundup-2017. 
352 An Assessment of Minority Voting Rights Access

model, Maryland’s law allows citizens to be automatically registered to vote when they interact

with the Motor Vehicle Administration as well as the Maryland Health Benefit Exchange and local

departments, such as the Mobility Certification Office in the Maryland Transit Administration.13

In April, New Jersey enacted a similar AVR law, which reaches even more agencies, including

parole and probation agencies.14

In a study of the impact of the AVR law in Oregon, the Center for American Progress (CAP) found

that more than 272,000 people were added to the voter rolls in Oregon as a direct result of this new

law.15 About 40 percent of AVR registrants were 30 years old or younger, even though the law

itself was not designed to specifically target a younger population.16 In fact, the millennial

generation (ages 18-29) are significantly affected by AVR laws. As CAP found, “by implementing

AVR systems in states across the country, the political power of the millennial generation can be

realized.”17 Specifically, the number of millennials who registered from 2012 to 2013 increased

by more than 100,000. Millennials often face significant barriers to voting that the AVR alleviates.

Under current voter registration process, every time a citizen moves, they need to re-register.

Young people are disproportionately affected by these restrictions because young people between

the ages of 18-29 change their address at more than twice the annual rate of Americans ages 30

and older.18 AVR laws eliminate the requirement to re-register every time a voter moves. AVR in

Oregon nearly quadrupled the rate of new registrations at the DMV and has increased the

registration rate by almost 10 percent.

19

Despite this, AVR has faced criticism from past NJ Governor Chris Christie who said that, “I reject

this government-knows-best, backwards approach that would inconvenience citizens and waste

government resources for no justifiable reason.”20 In addition, Hans von Spakovsky stated that, “I

have yet to see an automatic voter registration bill that adequately addresses the problems of

including ineligible voters, such as noncitizens—illegal and legal—or preventing duplicate

registrations. Automatic voter registration won’t solve the problem of low voter turnout. We know

that from our experience with the NVRA—it increased registration but not turnout. People don’t

vote because of motivational factors, not because they have trouble registering.”21 However, it has

been shown that AVR lawsremove barriersto registration for eligible voters, improve the accuracy

 

13 Id. and see S. 1048, 2018 Leg., Reg. Sess. (Md. 2018), 

http://mgaleg.maryland.gov/2018RS/Chapters_noln/CH_19_sb1048t.pdf. 14 A2014, 2018-2019 Leg., Reg. Sess. (N.J. 2018), https://www.njleg.state.nj.us/bills/BillView.asp. 15 Rob Griffin, Paul Gronke, Tova Wang & Liz Kennedy, Who Votes with Automatic Voter Registration?, CENTER 

FOR AMERICAN PROGRESS (June 7, 2017, 8:56 AM), 

https://www.americanprogress.org/issues/democracy/reports/2017/06/07/433677/votes-automatic-voter-registration/. 16 Id. 17 Kraemer et al., Millennial Voters, supra note 1. 18 Id. 19 Jonathan Brater, Update: Oregon Keeps Adding New Voters at Torrid Pace, BRENNAN CENTER FOR JUSTICE (Aug. 

19, 2016), https://www.brennancenter.org/analysis/update-oregon-keeps-adding-new-voters-torrid-pace. 20 Niraj Choski, Automatic Voter Registration a ‘Success’ in Oregon, N.Y. TIMES (Dec. 2, 2016), 

https://www.nytimes.com/2016/12/02/us/politics/oregon-voter-registration.html. 21 NATIONAL CONFERENCE ON STATE LEGISLATURES, WHAT IS AUTOMATIC VOTER REGISTRATION ANYWAY? WHAT 

THE EXPERTS SAY, NCSL, 2, (2016) http://www.ncsl.org/Documents/Elections/The_Canvass_JulyAugust_2016.pdf.
Appendices 353

of voter rolls, reduce the costs of provisional ballots, and result in higher voter turnout rates.22 But

since the 2016 Governor’s race, New Jersey introduced and passed a new AVR bill, which will

expand automatic registration to parole and social service agencies.23

In addition to the effect that AVR laws have on millennials, these laws would also add up to 50

million eligible voters to the rolls.24 The core tenets of these laws are that they are inexpensive,

they allow people to still participate even if they move frequently, citizens have the choice to opt

out, they are trustworthy, and they improve accuracy. Since AVR is done automatically, it reduces

the “human error” such as the chance that a civil servant going through paper applications would

make a typo that would invalidate someone from voting, losing a form, or other clerical errors.25

Moving away from affirmatively requiring that each voter fill out a voter registration form and

towards an automatic and convenient process has increased voter registration in every state that

has implemented it.26

 

22 BRENNAN, Case for AVR, supra note 3. 23 See Matt Friedman, New Jersey AVR Bill Would Allow Automatic Registration at Welfare, Parole Offices, 

POLITICO (April 5, 2018), https://www.politico.com/states/new-jersey/story/2018/04/05/change-to-motor-voter-billwould-allow-automatic-voter-registration-at-welfare-agencies-parole-board-351203.). 24 BRENNAN, Case for AVR, supra note 3, at 1. 25 Id. at 10. 26 Id. at 9. 
354 An Assessment of Minority Voting Rights Access

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Appendices 355

APPENDIX D: U.S. COMMISSION ON CIVIL RIGHTS STATE 

ADVISORY COMMITTEES (SACS) RECENT WORK ON 

VOTING RIGHTS

The Commission has SACs in each of the 50 states and the District of Columbia, consisting of

citizens of the respective states who serve without pay and who advise the Commission and their

states about civil rights issues in the states.1 This Appendix is a general summary of the relevant

SAC reports issued and briefings held between 2008 and June 2018, while the Commission notes

that pertinent information is also found throughout the text of this national report.

Alabama

On February 22, 2018, the Alabama Advisory Committee heard testimony from several voting

rights experts and Alabama Secretary of State John Merrill. The testimony included discussion of

current voter registration and education efforts undertaken by the state and nonprofit groups, as

well as obstacles to registration and casting a ballot. Many testified Alabama swiftly enacted voter

restrictions after the preclearance requirement was lifted. Voters currently struggle to learn of

election law changes, such as moving precinct boundaries, as no notice is required. Alabama’s

voter ID law received particular attention, with many stating the process of obtaining ID remains

too cumbersome, including concerns about the closure or limited hours at several Department of

Motor Vehicles offices and high costs associated with obtaining ID. Particular obstacles for voters

of color were discussed. Concerns raised about the ability of voters to cast a ballot on Election Day

included inaccurate designation of some voters as “inactive” when they had recently voted,

precinct officials requiring more rigorous standards for ID than required by state law, insufficient

staffing causing long lines, and inappropriate law enforcement presence at polling places.

Testimony also included extensive discussion of barriers to vote for formerly incarcerated people.

Many noted the explicit racism in the history of disenfranchisement in Alabama based on criminal

conviction, dating back to the original provision in 1901. Alabama has recently enacted a law

clarifying the crimes for which conviction renders a person ineligible to vote and which do not.

Experts expressed concern about a lack of education and efforts by the state to ensure those with

convictions are aware of their eligibility status and the process to restore their right to vote.

Concerns were also expressed that once an application for restoration is submitted, the process is

lengthy and confusing, discouraging people from participating. Additionally, Alabama requires

the payment of all fines and fees before vote restoration, and many expressed dismay that those

living in poverty were therefore ineligible.

 

1 42 U.S.C. 1975a(d) §§ 703.1-704. 
356 An Assessment of Minority Voting Rights Access

Alaska

On March 27, 2018 the Alaska SAC issued an Advisory Memorandum to the Commission

regarding the state of Alaska Native voting rights.2 This memorandum came after the Alaska SAC

held a public meeting in August of 2017 to (1) determine the effectiveness of the implementation

of the Toyukak v. Mallott3 settlement and (2) to determine the possible impact of mail-in voting on

Alaska Native voters.4 The Toyukak Order requires language assistance and election materials,

specifically in Yup’ik and Gwich’in in the Dillingham, Kusilvak, and Yukon-Koyukak Census

Areas until 2020.

5 The order ensured that translations were accurate and stipulated more intensive

training for poll workers.6 The order gave translations and language assistance, glossaries of

election terms in Native dialects, toll-free numbers for voter language assistance, and translated

sample ballots and touch-screen voting machines.7 This order also mandates that other parts of

Alaska fall under Section 203 language assistance program coverage.8 The covered language

minority groups in Alaska include: Filipino, Hispanic, Yup’ik, Aleut, Inupiat, and Alaskan

Athabascan. 9

According to Alaska’s SAC report, there was inadequate staffing of bilingual poll workers in

recent elections in the covered areas which may have led to LEP voters not being able to cast their

ballot.10 There was also a lack of voting materials that may have resulted from the inaccessibility

of certain areas to the U.S. Postal Service as well as a lack of trained observers and monitors at the

polls to disseminate this information.11

In studying the feasibility of implementing a vote-by-mail system, the Alaska SAC found many

challenges to implementing a system like this in Alaska. First, voters were concerned about the

speed of Alaska’s mail system because it can take up to two to three weeks to receive mail.12 Since

elections are typically held in October or November—two of the state’s worst weather months—

receiving mail could take even longer to arrive.

13 Additionally, a recent study revealed that Native

American voters have a low trust in mail-in voting. Native American voters often have irregular

 

2 Advisory Memorandum, Alaska Advisory Committee to the U.S. Comm’n on Civil Rights, Alaska Native Voting 

Rights, (2018) http://www.usccr.gov/pubs/2018/05-25-AK-Voting-Rights.pdf at 1 [hereinafter Alaska SAC, Voting 

Rights]. 3 2015 WL 11120474 (D. Alaska 2015). 

4 Alaska SAC, Voting Rights, supra note 2, at 1-3 (The Toyukak Order requires language assistance and election 

materials, specifically in Yup’ik and Gwich’in in the Dillingham, Kusilvak, and Yukon-Koyukak Census Areas until 

2020.) 

5 Id. at 2-3. 6 Id. 7 Id. 8 Id. 9 Id. at 4. 10 Id. at 5. 11 Id. 12 Id. at 7. 13 Id. 
Appendices 357

mail and non-traditional home addresses.14 Rural residents often share P.O. boxes, and some

members of the community fear that their neighbors would go through their mail.15 Furthermore,

Alaska Native villages lack broadband access meaning that voters in the Native community have

to go further out of their way to participate in the election process.16

The Alaska SAC issued five main recommendations to the Commission: (1) the Commission

should ask the DOJ to enforce Section 203 of the VRA and send federal observers to Alaska; (2)

the Commission should ask the U.S. Postal Service to require training of all Alaska postal service

employeesto ensure election mail is postmarked promptly—especially in rural areas, and prioritize

election mail; (3) the Commission should ask Congress to give appropriations from Help America

Vote Act (HAVA) to aid language assistance efforts in Alaska; (4) the Commission should ask the

State of Alaska Legislature to give appropriations to fund the Division of Elections to assist in

Section 203 compliance, possibly provide broadband service in rural areas of Alaska, and enact

legislation similar to Title VI of the Civil Rights Act; and (5) the Commission should ask the

Alaska Governor, Lieutenant Governor, and State of Alaska Division of Elections to analyze voteby-mail systems, halt plans to move forward with a vote-be-mail system in covered areas from

Toyukak v. Mallott, continue Section 203 coverage in certain areas, start a hybrid voting system

that has early voting, in-person voting and vote-by-mail, continue panels on these issues, review

Title VI stipulations, evaluate the role of pole workers, extend the Toyukak Order past 2020, and

have alternative methods for receiving election materials in rural areas. 17

California

In 2017 the California SAC issued a report to the Commission about voting integrity in California.

A hearing was conducted in Los Angeles, California in 2015 about the compliance of California

with the Help America Vote Act (HAVA). After hearing from expert witnesses and the public, the

California SAC issued seven recommendations to the Commission: (1) train election officials and

poll workers correctly; (2) provide expert citizen election integrity oversight; (3) make poll sites

and poll workers more accessible to those voters with disabilities; (4) create a nonpartisan citizen

election integrity and oversight organization to assess VoteCal and analyze the Secretary of State’s

process of verifying eligible voters; (5) follow HAVA’s guide for distributing provisional ballots;

(6) upgrade California’s election codes; and (7) amend the Motor Voter law to establish oversight

and create ongoing education for DMV personnel.18

 

14 Id. at 7-8. 15 Id. at 8. 16 Id. 17 Id. at 10-12. 18 California Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Integrity in California: Issues and 

Concerns in the 21st Century, v-vii (2017), http://www.usccr.gov/pubs/07-24-Voting-Integrity-in-CA.pdf (please 

note that this report did not receive Commission Legal Sufficiency Review).
358 An Assessment of Minority Voting Rights Access

Florida

In 2008 the Florida SAC conducted a study of the voting rights of persons with former felony

convictionsin Florida.

19 The Florida Constitution statesthat no person who is convicted of a felony

in the state or in any other state will be allowed to vote or hold office until their civil rights are

restored.20 This restoration only comes from the Clemency Board. The assessment by the Florida

SAC found that about 200,000 people lost the right to vote between 1995 and 2005 due to ex-felon

disenfranchisement.21 This disenfranchisement disproportionately affected African-American

men; men make up 90 percent of the prison population and African Americans make up half of

the total prison population.22 In April of 2007, the state Clemency Board issued a revised set of

Rules of Executive Clemency that would automatically restore the civil rights and voting rights to

most felons upon release from prison.23 The Florida SAC supported this change and subsequently

recommended that Florida’s Parole Commission create data collection systems that will allow

future studies to be conducted about this.24

Louisiana

The Louisiana Advisory Committee to the U.S. Commission on Civil Rights held a public meeting

on December 6, 2017 to discuss civil rights and barriers to voting in Louisiana.25 The committee

heard several panels discuss voting challenges within the state.

Ph. D. Candidate at Louisiana State University, Jhacova Williams, conducted census data analysis

and found that income and race within a Parish are significantly associated with the number of

voting machines and polling places available.26 “[I]ndividuals who live in richer areas or areas

with higher percentages of whites have more polling places and more voting machines and thus

have easier access to voting.27” Senator Karen Carter Peterson discussed the disadvantages of the

ABC voting machine that is still in use in Louisiana, citing the ease with which the machines can

be hacked as a reason to decertify the machines in Louisiana.28 Peterson also argued that there are

 

19 Florida Advisory Committee to the U.S. Comm’n on Civil Rights, Ex-Felon Voting Rights in Florida: Revised 

Rules of Executive Clemency That Automatically Restore Civil Rights to Level-1 Offenders Is the Right Policy,

(2008), http://www.usccr.gov/pubs/EX-FelonVRFL.pdf [hereinafter Florida SAC, Ex-Felon Voting Rights in 

Florida]. 20 FLA. CONST. art. VI, § 4(a). Id. at i. 21 Florida SAC, Ex-Felon Voting Rights in Florida, supra note 19, at i. 22 Id. 23 Id. at ii. 24 Id. 25 Louisiana Advisory Committee to the U.S. Comm’n on Civil Rights, Civil Rights and Barriers to Voting in 

Louisiana (Dec. 7, 2018) (transcript on file) at 1. 26 Id. at 18-19. 27 Id. 28 Id. at 21. 
Appendices 359

far too few polling locations, forcing people to travel further and disproportionally impacting more

impoverished voters.29

Peterson also discussed a lack of accessibility at the polls, noting that assistance is only offered to

those with a physical disability, and arguing that the statute discriminates against those who require

assistance due to a mental disability or other reason.30 Director of Policy and Community

Engagement for the Advocacy Center of Louisiana, Susan Meyers, also discussed several

accessibility issues. Most notably, that polling places that are not otherwise subject to disability

laws—churches and private homes—do not make their facilities accessible to people with

disabilities.

31 The League of Women Voters asked that the city-Parish government comply with

the ADA and the HAVA, after describing the lack of accessibility in parking, long lines, and stairs

making it more challenging for elderly and disabled people to vote. 32

Kansas

The Kansas SAC issued a voting rights report in 2017 examining the Kansas Secure and Fair

Elections Act (SAFE).33 Kansas Governor Sam Brownback signed the SAFE Act (HB 2067) on

April 18, 2011.34 The SAFE Act requires that newly registered Kansas voters prove U.S.

citizenship when registering to vote, voters must show photographic identification when casting

an in-person vote, and voters must have their signature verified and provide a full Kansas driver’s

license or non-driver’s ID number when voting by mail.35 Under the SAFE Act, citizens can

acquire a free, non-driver photo ID from the Kansas Division of Vehicles and a free copy of their

birth certificate from the Kansas Office of Vital Statistics to prove their citizenship.36 The

Committee advised the DOJ to review the Kansas SAFE Act and determine if it follows federal

law—specifically the VRA, the Help American Vote Act, and the National Voter Registration Act

(NVRA).37

Kentucky

The Kentucky SAC submitted a report in 2009 about voting rights in their state, specifically for

persons with former felony convictions. The SAC concluded that persons with felony convictions

 

29 Id. at 25-26. 30 Id. at 23. 31 Id. at 70-71. 32 Id. at 75-76. 33 KANSAS STATE ADVISORY COMMITTEE TO THE U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS AND THE KANSAS 

SECURE AND FAIR ELECTIONS ACT, 40-1 (Mar. 2017), http://www.usccr.gov/pubs/KS-Voting-Rights-Report.pdf

[hereinafter KANSAS SAC, SAFE Act]. 34 Press Release, State of Kansas, Secretary of State, Kansas Secure and Fair Elections (SAFE) Act Signed by 

Governor (Apr. 18, 2011), https://www.kssos.org/other/news_releases/PR_2011/PR_2011-04-

18_on_SAFE_Act_Signing.pdf. 35 Id. 36 KANSAS SAC, SAFE Act, supra note 33, at 10-11. 37 Id. at 41. 
360 An Assessment of Minority Voting Rights Access

should have the right to vote restored after serving their full sentence.38 Despite the fact that the

Governor can restore individual voting rights to former felons through executive pardon, the

Kentucky SAC found that that process has become “politicized.” Moreover, Kentucky is one of

only 12 states that bans voting indefinitely (for life), unless the Governor decides to pardon citizens

who have served their time, one by one.39 The SAC recommended automatically restoring the

voting rights to persons with former felony convictions in the state of Kentucky. 40

Indiana

On February 12, 2018, the Indiana SAC held a conference call to hear testimony about voting

rights in Indiana to determine if there are barriers to vote that exist in the state. 41 The Indiana SAC

followed up by holding community hearings in Evansville, Indianapolis, and Gary. Testimony

included information about verifying voter registration information, voter ID requirements, and

concerns regarding accessibility of the polls for the disabled, early voting, and procuring absentee

ballots.42 The SAC also heard testimony about discriminatory behavior by poll workers and broken

voting equipment, which are direct barriers to voting on Election Day at the polls.

43 There was

also testimony about an Indiana state law that allows local election authorities to purge the

registration of Indiana voters using the matching program known as Crosscheck.

44 Additionally,

the SAC heard testimony that following the 2008 presidential election, early voting sites in

Indianapolis were removed in an area where there was high African-American turnout while

legislators decided to add an additional two early voting stations in primarily white Republican

districts. The other main issue the SAC heard testimony about is the topic of voter photo ID

requirements, with testimony that Indiana’s photo ID law is one of the most “stringent” in the

nation and that 83.2 percent of white voters in Indiana have the correct photo ID while only 71.7

percent of African-American voters do.45

Illinois

In 2018, the Illinois SAC submitted a report to the Commission about the state of voting rights in

Illinois. The Illinois SAC held a public briefing in 2017 to hear expert and public testimony about

 

38 KENTUCKY ADVISORY COMMITTEE TO THE U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS IN KENTUCKY:

FELONS WHO HAVE COMPLETED THE FULL TERMS OF THEIR SENTENCES SHOULD HAVE THE RIGHT TO VOTE, 23

(SEPT. 2009), http://www.usccr.gov/pubs/KYVotingRightsReport.pdf [hereinafter KENTUCKY SAC, Voting Rights in 

Kentucky]. 39 National Conference of State Legislatures, Felon Voting Rights, NCSL, (Nov. 28, 2017), 

http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx. 40 KENTUCKY SAC, Voting Rights in Kentucky, supra note 38. 41 Indiana State Advisory Committee to the U.S. Comm’n on Civil Rights, Civil Rights and Barriers to Voting in 

Louisiana (Dec. 7, 2018) (transcript on file) [hereinafter Indiana SAC, Meeting Transcript] at 1. 42 Id. at 4, lines 28-39. 43 Id. at 5, lines 4-12. 44 Id. at 5-6. See also Fatima Hussein, Indiana Secretary of State Accused of Violating Election Laws, INDY STAR

(Oct. 27, 2017,), https://www.indystar.com/story/news/2017/10/27/indiana-secretary-state-accused-violatingfederal-election-laws/806825001/. 45 Id. at 7. 
Appendices 361

ways to improve access to voting in Illinois. The SAC issued four main recommendations to the

Commission. First, they recommended that the Commission include an analysis of changes in

voting laws following the Shelby County and Citizens United v. Federal Election Commission

decisions, following the passage of the Automatic Voter Registration or Election Day Registration,

and an analysis of allegations of voter fraud in the Commission’s national study on voting rights.46

Second, they recommended that the Commission advise Congress to create a working committee

to study the impact of the Shelby County decision and update the preclearance formula in the VRA,

the same recommendations that the Kansas SAC made.47 Third, the Illinois SAC recommended

that the Commission advise the DOJ to analyze Illinois’ implementation of the VRA, HAVA, and

NVRA.48 Finally, the SAC asked that the Commission deliver a letter to the U.S. Election

Assistance Commission (EAC), the Illinois Governor, and the Illinois Legislature about the

findings of this report and further areas to investigate.49

Maine

On March 21, 2018, the Maine SAC convened a briefing on voting rights in Maine.50 This hearing

centered on the dynamics of voter ID laws and the representation, or lack thereof, of certain voter

demographics. All of the panelists agreed that Maine has some of the most inclusive and fair

policies regarding voting rights and access, given that the state enacted same-day voting legislation

and does not require voters to have identification at polling places.51 However, there have been

numerous attempts to pass legislation that would enact voter ID laws; panelist Terry Brown of the

Maine Heritage Policy Center argued that passing a voter ID law would protect elections from

fraudulent voting, but panelist Ann Luther of the League of Women Voters contended that voter

ID laws typically result in lower voter turnout, with turnout in states with ID laws typically falling

by 2 or 3 percent.

52 One of the most inclusive provisions of Maine’s voting rights laws is the

enfranchisement of convicted felons.53 Maine is only one of two states that does not strip convicted

criminals of their voting rights; individuals convicted of crimes can vote both while incarcerated

and as soon as they have served their sentence.54

Although very inclusive in some aspects, there has been some controversy in Maine regarding

student voters and voters with disabilities. Students generally have more flexibility in regards to

voting registration, given that permanent residency and temporary residency may differ, but

legislation was recently proposed to require additional proof of residency for students residing in

 

46 ILLINOIS STATE ADVISORY COMMITTEE TO THE U.S. COMM’N ON CIVIL RIGHTS, CIVIL RIGHTS AND VOTING IN 

ILLINOIS 57-58 (FEB. 2018), http://www.usccr.gov/pubs/2018/IL-Voting-Rights.pdf. 47 Id. at 58. 48 Id. 49 Id. 50 Maine State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in Maine, (Mar. 21, 2018), 

(transcript on file). 51 Id. at 1 and 27. 52 Id. at 26 and 30. 53 Id. at 27. 54 Id. 
362 An Assessment of Minority Voting Rights Access

university housing.55 Such legislation was not passed, given that it would violate students’

constitutional rights and equal protection to vote, but in 2011, the Secretary of State issued a letter

to students who had recently registered to vote and attacked the accuracy of their registration,

which discouraged those students from voting.56 As for registered voters with disabilities, Richard

Langley, the Deputy Director of Disability Rights Maine, spoke primarily on this issue.57 The Help

America Vote Act of 2002 established the need for accessibility for disabled people in voting, but

did not allocate enough resources to ensure physical accessibility of voting locations.58 Langley

testified that many public polling places do not consistently provide the necessary equipment to

make places accessible, such as ramps and accessible doorways.59 According to Langley, there are

approximately 3 million people with disabilities whose votes are not accounted for, which may be

a result of not feeling welcome in the political sphere or, as Langley testified, may result from the

physical challenges persons with disabilities face at polling places.60

New Hampshire

In 2018, the New Hampshire SAC issued a report on the effects of its recent election laws and

examined whether these laws had a disparate impact on voters of color. The report based its

conclusions on a roundtable session held September 30, 2013 and a briefing held May 20, 2014.61

New Hampshire is a swing state and holds the first presidential primary election, garnering the

state’s elections a great deal of attention. Moreover, the state maintains high rates of voter turnout.

In the 2012 Election, 70.9 percent of its eligible population voted, making it fourth in the country

in voter turnout. 62 Eight towns and two unincorporated areas in New Hampshire were subject to

the VRA’s preclearance requirement. Prior to the Shelby County decision, New Hampshire became

the first and only state to bail out of its preclearance requirements before a three-judge panel.63

The Assistant U.S. Attorney and election officer for the District of New Hampshire reported that

in his 14 years with the U.S. Attorney’s Office, he has not found a single violation of voting

rights.64 Caitlin Rollo, research director of the Granite State Progress Education Fund, testified

that from 2000 to 2012, New Hampshire had only two documented cases of voter fraud, making

the statewide percentage 0.0003.65 Despite this record, in 2012 New Hampshire enacted a voter

ID law to protect against voter impersonation fraud. The law requires voters to show an

 

55 Id. at 22. 56 Id. at 29. 57 Id. at 37. 58 Id. at 38. 59 Id. at 38. 60 Id. 61 NEW HAMPSHIRE STATE ADVISORY COMMITTEE TO THE U.S. COMM’N ON CIVIL RIGHTS, VOTING RIGHTS IN NEW 

HAMPSHIRE, (MAR. 2018), https://www.usccr.gov/pubs/2018/05-16-NH-Voting-Rights.pdf. 62 Id. at 6. (The requirement was likely placed on these areas because of literacy tests and low voter turnout during 

the 1960s.). 63 Id. at 6. 64 Id. at 8. 65 Id. at 9. 
Appendices 363

“acceptable” form of identification when going to the polls.66 The report finds that New Hampshire

has one of the more flexible voter ID laws. It is up to the discretion of election officials whether

or not to allow voters to use an ID that is not specified by the ID law. The League of Women

Voters concluded that the voter ID law has increased wait times, which can dissuade citizens from

voting; from 2008 to 2012 the average voter in New Hampshire had to wait 60 percent longer to

vote.67 However, the Secretary of State of New Hampshire contends that the voter ID laws have

not had a substantial deterrent effect on turnout; turnout dropped 1.5 percent from 2008 to 2012.68

Obtaining an ID that meets the specifications of the law can be challenging for disabled, homeless,

or elderly people. Often, to acquire a government ID a person must already have two forms of ID

and obtaining an ID can be costly with regard to notary fees or travel fare.69 The report suggests

that given the minor instances of the problem and the potential financial and social costs of

enforcing the law, the voter ID law may be more burdensome than beneficial.

Some New Hampshire polling locations still have some barriers to physical access for people with

disabilities and there are many with attitudinal barriers that discourage people with disabilities

from voting.70 Seven of the 94 voters with disabilities surveyed reported that they were unable to

vote privately and independently in the 2012 Primary Election.71 In 2013 none of the polling

locations had set up the accessible voting system. In municipal elections of that year 100 percent

of disabled voters were unable to vote privately and independently.72

Section 203 of the VRA mandates that states provide language assistance for any single language

minority group if they comprise over 5 percent of voting age citizens.73 As of the census of October

of 2011, none of New Hampshire’s jurisdictions met this requirement.74 The report cites a

demographic shift in New Hampshire that suggests the need for greater language accommodation

for non-English speakers.

75 If population trends continue, certain areas of New Hampshire will be

subject to the VRA’s federal language assistance requirement by 2020.76 The committee

recommended that the Secretary of State of New Hampshire publish all voting informational

materials in both English and Spanish.77

 

66 Id. (stating that the acceptable forms of identification include: a driver’s license, non-photo ID from a DMV, 

voting ID, passport, military ID, and certain types of student IDs). 67 Id. at 10. 68 Id. 69 Id. at 13. 70 Id. at 15. 71 Id. 72 Id. at 16. 73 Id. at 21. 74 Id. 75 Id. 76 Id. at 22. 77 Id. at 24. 
364 An Assessment of Minority Voting Rights Access

Ohio

The Ohio SAC heard testimony March 2 and 9, 2018 regarding voting rights in Ohio.78 Daniel

Tokaji, Associate Dean at The Ohio State University Moritz College of Law 79 discussed the

history of voting rights in Ohio, vote denial claims, and vote dilution.80 He stated that there have

been a number of claims of race discrimination in violation of Section 2 in Ohio over the past few

years.81 Catherine Turcer, the Executive Director of Common Cause Ohio, referenced Ohio’s voter

ID law which is more lenient than other states because voters can use a usual license and a utility

bill.82 Additionally, she referenced a practice called no fault absentee voting which one third of

Ohio voters take advantage of and an early voting period that allows them to register to vote and

update their voter registration information.83 Turcer also said that Ohio has “truly bi-partisan”

election administrations meaning that the votes are verified equally by members of both parties.84

However, Ohio is one of the most “aggressive” states for voter purging,

85 with “tens of thousands”

of voters, who were primarily African-American voters from urban areas, purged in advance of

the 2016 presidential election.86 In 2016, 13 percent of registered voters were labeled as “inactive”

voters which equated to a loss of 1 million voters.87

Kerstin Sjoberg-Witt testified to the experiences and issues that Ohio voters with disabilities face,

including stereotypes, the potential for discrimination in the constitution, and misinformation

about people with disabilities.88 An example of archaic and inappropriate language in the Ohio

state constitution is the line that reads, “No idiot or insane person shall be entitled to the privileges

or an elector”89 a line which Disability Rights Ohio has advocated to remove from the Ohio

Constitution yet the change was not made.90 The lack of adequate accessible transportation and the

discriminatory impact of absentee paper ballots on people with disabilities are also two big issues

that voters with disabilities in Ohio face.91 Sjoberg-Witt also advocates for alternative options

besides designating the power of attorney for voting especially due to the disproportionate number

of people with disabilities who are low income and live in poverty, which makes it harder for them

 

78 Ohio State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in Ohio, (Mar. 2, 2018), 

(transcript available at https://facadatabase.gov/committee/meetingdocuments.aspx?flr=155584&cid=268) 

[hereinafter Ohio SAC, Voting Rights Transcript]. 79 Id. at 2. 80 Id. at 3. 81 Id. at 5. 82 Id. 83 Id. 84 Id. 85 Id. at 10. 86 Id. 87 Id. at 11. 88 Id. at 13. 89 Id. at 14. 90 Id. 91 Id. at 15-16. 
Appendices 365

to pay for a photo ID or afford public transportation to get to the polls, or may resulting in a loss

of housing which could then result in swift voter purging.92

Ed Leonard, the director of the Franklin County Board of Elections, testified to voting machine

shortages, long lines on Election Day, and specific voter protections and poll worker training

efforts.93 He noted an uptick in the number of voting machines available and attributed shorter

lines on Election Day to a switch from precinct-based voting to location-based voting and the

introduction of no fault absentee (early vote) centers.94 He also noted a high number of provisional

ballots being ruled as invalid over the past few years and contrastingly an increase in the number

of users of the online voter registration.95

Recently, the American Civil Liberties Union filed a lawsuit challenging Ohio’s congressional

map as unconstitutional partisan gerrymandering.96

Rhode Island

The Rhode Island SAC held a web conference call on May 29, 2018 to discuss voting access issues

in Rhode Island. This SAC heard testimony from Steve Brown of the ACLU of Rhode Island, John

Marion of Common Cause Rhode Island, and Jim Vincent from the Rhode Island NAACP who

shared their expertise on voting rights. 97

Brown emphasized the discriminatory impact of the state’s voter ID law and the lack of

information provided to voters concerning the availability of provisional ballots when voters fail

to provide adequate identification when voting.98 Brown also noted that voters are not informed

when their polling place locations change, resulting in the complete absence or disqualification of

votes, especially since early voting is not an option in Rhode Island.99

John Marion responded by highlighting both modern and antiquated aspects of the state’s election

administration.100 Every polling place in the state has at least one AutoMARK vote-marking

machine, which is critical for the representation of visually and hearing disabled voters. However,

he noted that because this modern machinery often has technical issues, the Board of Elections

must invest in providing at least two AutoMARK machines at heavily trafficked precincts to

 

92 Id. at 18. 93 Id. at 3. 94 Id. 95 Id. at 6-7. 96 Complaint, Ohio A. Phillip Randolph Inst. v. Kasich, No. 1:18-CV-00357-TSB (S.D. Ohio, May 23, 2018), 

https://www.aclu.org/sites/default/files/field_document/complaint_timestamped.pdf. 97 Rhode Island State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in Rhode Island, 

(May 29, 2018), (transcript on file) [hereinafter Rhode Island SAC, Voting Rights Transcript]. 98 Id. at 2. (The fail-safe provision allows voters to fill out provisional ballots that later are verified by the state’s 

Board of Canvassers via cross-checking signatures with voter rolls.). 99 Id. at 3, 7-8. 100 Id. at 4. 
366 An Assessment of Minority Voting Rights Access

ensure the representation of disabled persons.101 Marion also discussed the progressiveness of

Rhode Island being only one of two states that has adopted policies that allow for automatic voter

registration to occur at state agencies other than the DMV.102 However, he criticized the antiquity

of the state’s registration window, given that it is the longest window of any state. Rhode Island

voters cannot register to vote within 30 days of an election, with the exception being presidential

elections where unregistered voters can do same-day registration and cast a presidential/vice

presidential-only ballot. 103 He also noted that the state’s late primaries discriminate against

registered voters overseas.104

Jim Vincent closed the conversation by reiterating the points of the previous two panelists and

sharing in their support for making voting “simpler and fairer and more efficient” in Rhode

Island.105

Texas

On March 13, 2018 the Texas SAC convened a public briefing on the state of voting rights in

Texas and specifically the barriers to voting based on race, color, disability status, national origin,

and other protected classes.106 The Texas SAC wished to focus on three main potential barriers:

(1) voter registration; (2) access to and administration of polling locations; and (3) language

access.107 The panelists were broken up into foursections—Academic, Advocacy Groups, Election

Officials and Lawmakers, and Voters.

Rogelio Saenz from the University of Texas, San Antonio testified that Texas lags behind in voter

registration, ranking 44th among the 50 states during the 2016 presidential election and ranking

47th for turnout.108

Teddy Rave, Assistant Professor of Law at the University of Houston Law Center, testified that

encouraging or suppressing voter turnout in any way has a “predictable partisan effect” on election

outcomes and that historically, increased turnout has helped Democrats.109 He believes that we can

ameliorate the proliferation of partisanship in voting by amending the VRA so that claims of

partisan manipulation carry the same weight as racial claims.110 He discussed the important role

of preclearance in acting as an “external check” on partisan control over local decisions and the

previous vigorous enforcement and oversight offered by the Justice Department.111 He equated the

 

101 Id. 102 Id. at 5. 103 Id. at 5-6. 104 Id. at 6. 105 Id. at 7. 106 Texas State Advisory Committee to the U.S. Comm’n on Civil Rights, Voting Rights in Texas, (Mar. 13, 2018),

(transcript on file). 107 Id. at 1. 108 Id. at 6. 109 Id. at 24. 110 Id. at 29. 111 Id. at 30. 
Appendices 367

loss of preclearance to turning partisans “loose” and “unsupervised” so that they can “meddle”

with voting rules and procedures to positively impact their party.112 Rave said that he would prefer

to have nationwide coverage under Section 5, rather than just having targeted jurisdictions

covered.113 Overall, he believes it is essential that nonpartisan institutions oversee elections and

the creation of voting policies and procedures.

Ernest Herrera, a MALDEF Staff Attorney, testified that some Texas cities, towns, and counties

have tried to limit Latinos’ access to the vote.114 MALDEF also found in 2016 that many counties

in Texas were failing to provide any election information in Spanish.115 Jerry Vattamala from

AALDEF testified that due to a loss of support from the Justice Department following the Shelby

County decision, AALDEF often has to not only conduct exit polls but also act as poll monitors

on Election Day to ensure that there is no discrimination against Asian Americans. AALDEF is

currently monitoring Texas for any Section 208 violations.116 Finally Gary Bledsoe from the Texas

NAACP testified that we are currently “fighting a battle” where the “old type” of voter suppression

is present.117

Ann Harris Bennet, voter registrar/tax assessor in Harris County, 118 testified that there was not a

substantial threat of in-person voter fraud and that she would like to expand access for Texas

citizens to make changes to their address online through an online voter registration system.119 She

also helps people to cure their ballots, meaning that if voters do not have a valid form of ID on

Election Day they could come to her office and go through the process, issuing the voter a receipt

saying that they now had ballot ID.120 The language training program that she discussed in her

testimony will extend to Vietnamese as well as Spanish. Finally, she is working towards achieving

a “good clean roll” which, in her opinion, means that everyone who is eligible to vote is on the

roll, there are no felons on the roll, everyone is 18 or older, and they have not been declared

“incompetent” by a court of law.121 She believes that the single biggest barrier voters face in

passing a ballot is the voter registration process, which is why she is working to simplify it.122

 

112 Id. at 30-31. 113 Id. at 40. 114 Id. at 59. 115 Id. at 64. 116 Id. at 77. 117 Id. at 80. 118 Id. at 121. 119 Id. at 122. 120 Id. 121 Id. at 142. 122 Id. at 143. 
368 An Assessment of Minority Voting Rights Access

[This page intentionally left blank]
Appendices 369

APPENDIX E: CHARTS OF VOTING RIGHTS ISSUES BY 

STATE, COMPARING FORMERLY COVERED WITH NONCOVERED JURISDICTIONS

(1) Chart of Voting Rights Issues in Formerly Covered, by State (2006-present)

State

Voter ID

Requirement

Documentary 

Proof of 

Citizenship

Purges of 

Voters from 

the Rolls

Cuts to 

Early 

Voting

Moving or 

Eliminating 

Polling 

Locations TOTAL

Formerly 

Covered States 

(as a whole) 

Under Section 

5 

ALABAMA X X X 3

ALASKA X 1

ARIZONA X X X 3

GEORGIA X X X X X 5

LOUISIANA X X 2

MISSISSIPPI X X 2

SOUTH 

CAROLINA X X 2

TEXAS X X 2

VIRGINIA X 1

States with 

Formerly 

Covered 

Counties/

Townships 

Under Section 

5 

CALIFORNIA

FLORIDA X X X X 4

NEW YORK X 1

NORTH 

CAROLINA X X X X 4

SOUTH 

DAKOTA

MICHIGAN X 1

TOTAL FOR 

ABOVE 15 

STATES 11 3 4 3 10 31

AVERAGE # 

OF ISSUES 

AMONG 15 

FORMERLY 

COVERED 

STATES

2.1 issues/

state
370 An Assessment of Minority Voting Rights Access

State

Voter ID

Requirement

Documentary 

Proof of 

Citizenship

Purges of 

Voters from 

the Rolls

Cuts to 

Early 

Voting

Moving or 

Eliminating 

Polling 

Locations TOTAL

NATIONAL 

TOTAL 

(IN ALL 

STATES) 21 5 7 8 15 56

% OF 

NATIONAL 

TOTAL IN 

FORMERLY 

COVERED 

STATES 52.4 % 60% 57.1 % 37.5 % 66.7 % 55.4%
Appendices 371

(2) Chart of Voting Rights Issues in Non-Formerly Covered, by State (2006-present)

State

Voter ID 

Requirement

Documentary 

Proof of 

Citizenship

Purges 

of 

Voters 

from 

the 

Rolls

Cuts to 

Early 

Voting

Moving or 

Eliminating 

Polling 

Locations TOTAL

States 

Not Covered 

Under Section 5 

ARKANSAS X

COLORADO

CONNECTICUT

DELAWARE

DISTRICT OF 

COLUMBIA

HAWAII

IDAHO X

ILLINOIS

INDIANA X X X

IOWA

KANSAS X X

KENTUCKY

MAINE

MARYLAND

MASSACHUSETTS

MINNESOTA

MISSOURI

MONTANA X

NEBRASKA X

NEVADA

NEW HAMPSHIRE

NEW JERSEY

NEW MEXICO

NORTH DAKOTA X X

OHIO X X X

OKLAHOMA

OREGON X

PENNSYLVANIA X X X

RHODE ISLAND

SOUTH DAKOTA X

TENNESSEE X X X

UTAH

VERMONT

WEST VIRGINIA

WASHINGTON X

WISCONSIN X X
372 An Assessment of Minority Voting Rights Access

State

Voter ID 

Requirement

Documentary 

Proof of 

Citizenship

Purges 

of 

Voters 

from 

the 

Rolls

Cuts to 

Early 

Voting

Moving or 

Eliminating 

Polling 

Locations TOTAL

WYOMING

TOTAL (IN 35 

NOT FORMERLY 

COVERED 

STATES) 10 2 3 4 6 25

AVERAGE # 

ISSUES/STATE 

IN 35 NOT 

FORMERLY 

COVERED 

STATES

0.7 

issues/state

% OF NATIONAL 

TOTAL IN NOT 

FORMERLY 

COVERED 

STATES 47.6% 40.0% 42.9% 50.0% 40.0% 44.6%

NATIONAL 

TOTAL (IN ALL 

STATES) 21 5 7 8 15 56
Appendices 373

APPENDIX F: SECTION 2 CASES IN THE FIVE YEARS PRIOR TO SHELBY COUNTY

(June 25, 2008-June 25, 

2013) Case Name Citation State Covered? Year

Dilution/

Denial

Practice

challenged Defendant Success?

Garcia v. 2011 Legislative 

Reapportionment 

Commission 938 F. Supp. 2d 542 PA 2013 dilution

state 

redistricting No

Brown v. Detzner 895 F. Supp. 2d 1236 FL Yes 2012 denial

change in early 

voting state No

Gonzalez v. Arizona 677 F.3d 383 AZ Yes 2012 denial

proof of 

identification 

at poll state No

Crumly v. Cobb County Bd. 

Of Elections and Voter 

Registration 892 F. Supp. 2d 1333 GA Yes 2012 dilution redistricting county No

Lowery v. Deal 850 F. Supp. 2d 1326 GA Yes 2012 dilution

creation of 

municipalities state No

Levy v. Lexington County, 

S.C. School District Three 

Bd. of Trustees 2012 WL 1229511 SC Yes 2012 dilution at-large system school district No

Fairley v. Hattiesburg, 

Miss. 584 F.3d 660 MS Yes 2009 dilution redistricting city No

Bartlett v. Strickland 556 U.S. 1 NC Yes 2009 dilution

Redistricting 

(Section 2 

used as 

defense) state no

Perry-Bey v. City of 

Norfolk, VA 678 F. Supp. 2d 348 VA Yes 2009 dilution

at-large 

election city No

Gonzalez v. City of Aurora, 

Illinois 535 F.3d 594 IL 2008 dilution redistricting city no

Emmanuelli v. Priebus 2012 WL 6115994 FL 2012 denial

primary 

schedule political party no

City of Newark v. Newark 

Ward Commission 2012 WL 5986468 NJ 2012 dilution redistricting city No

Jeffers v. Beebe 895 F. Supp. 2d 920 AR 2012 dilution redistricting state No
374 An Assessment of Minority Voting Rights Access

(June 25, 2008-June 25, 

2013) Case Name Citation State Covered? Year

Dilution/

Denial

Practice

challenged Defendant Success?

Fletcher v. Lamone 831 F. Supp. 2d 887 MD 2011 dilution redistricting state No

Large v. Fremont County, 

Wyoming 709 F. Supp. 2d 1176 WY 2010 dilution

at-large 

election county Yes

U.S. v. Village of Port 

Chester 704 F. Supp. 2d 411 NY 2010 dilution at-large system village Yes

United States v. Brown 561 F.3d 420 MS Yes 2009 dilution

episodic 

practices (on 

behalf of white 

voters)

County 

political party Yes

Fabela v. City of Farmers 

Branch, Texas 2012 WL 3135545 TX Yes 2012 dilution

at-large 

election city Yes

Wright v. Louisville Metro 

Council 2012 WL 2089529 KY 2012 dilution redistricting city no

NAACP v. Snyder 879 F. Supp. 2d 662 MI Yes 2012 dilution redistricting state no

Backus v. South Carolina 857 F. Supp. 2d 553 SC Yes 2012 dilution redistricting state no

Committee for a Fair and 

Balanced Map v. IL State 

Bd. Of Elections 835 F. Supp. 2d 563 IL 2011 dilution redistricting state no

Alabama Democratic 

Conference v. Strange 2011 WL 13233307 AL Yes 2011 denial

campaign 

finance state no

Radogno v. IL State Bd. of 

Elections 836 F. Supp. 2d 759 IL 2011 dilution redistricting state no

Graves v. City of 

Montgomery 807 F. Supp. 2d 1096 AL Yes 2011 dilution redistricting city no

Spirit Lake Tribe v. Benson 

Cty., North Dakota 2010 WL 4226614 ND 2010 denial

closure of 

polling places county Yes

Farrahkhan v. Gregoire 623 F.3d 990 WA 2010 denial

felon 

disenfranchise

ment state no

 
Appendices 375

(June 25, 2008-June 25, 

2013) Case Name Citation State Covered? Year

Dilution/

Denial

Practice

challenged Defendant Success?

Cottier v. City of Martin 604 F.3d 553 SD 2010 dilution

configuration 

of city wards city no

Source: Internal Legal Research Performed on Westlaw, using the consistent definition of successful as set forth in the report at note 1306.
376 An Assessment of Minority Voting Rights Access

[This page intentionally left blank]
Appendices 377

APPENDIX G: FEDERAL OBSERVERS BY YEAR, STATE, AND 

COUNTY1

(NOTE: Formerly covered jurisdictions are highlighted in red; other observers were sent

under federal court orders specific to the jurisdictions)

Nov. 20062 Nov. 20083 Nov. 20104 Nov. 20125

AK -Bethel

AL -Chambers -Perry -Autauga -Russell

AZ -Apache

-Navajo

-Apache

-Cochise

-Navajo

-Apache

-Navajo

-Maricopa

CA -Riverside -Alameda

-Riverside

GA -Randolph -Randolph

IL -Kane -Kane

LA -St. Landry Parish -East Carroll Parish -East Carroll Parish

MA -Boston

-Springfield

MS -Noxubee -Bolivar

-Jefferson Davis

-Jones

-Kemper

-Leake

-Neshoba

-Newton

-Noxubee

-Washington

-Wilkinson

-Panola

 

1 DOJ Responses to USCCR Interrogatories 12 and 13. 2 Press Release, U.S. Dep’t of Justice, Justice Department Sends Election Observers to 22 States Across the Country 

in Unprecedented Monitoring Effort for a Midterm Election (Nov. 6, 2006), 

https://www.justice.gov/archive/opa/pr/2006/November/06-crt-752.html. Also, in this press release, it is not clear 

which jurisdictions received federal observers and which jurisdictions received election monitors. The Commission 

staff used a document (https://www.justice.gov/crt/about-federal-observers-and-election-monitoring) released by the 

Justice Department, which enumerates which jurisdictions historically received federal observers prior to Shelby 

County. If a jurisdiction was mentioned in the Nov. 2006 release, but not on the Justice Department list as having 

historically received federal observers, then we coded those jurisdictions as having received election monitors. See 

also U.S. Dep’t of Justice, About Federal Observers and Election Monitoring, https://www.justice.gov/crt/aboutfederal-observers-and-election-monitoring 3 Press Release, U.S. Dep’t of Justice, Department of Justice to Monitor Elections in 23 States Across the Nation on 

Election Day (Oct. 30, 2008), https://www.justice.gov/archive/opa/pr/2008/October/08-crt-973.html. 4 Press Release, U.S. Dep’t of Justice, Department of Justice to Monitor Elections in 18 States Across the Nation on 

Election Day (Oct. 29, 2010), https://www.justice.gov/opa/pr/justice-department-monitor-polls-18-states-electionday. 5 Press Release, U.S. Dep’t of Justice, Department of Justice to Monitor Elections in 23 States Across the Nation on 

Election Day (Nov. 2, 2012), https://www.justice.gov/opa/pr/justice-department-monitor-polls-23-states-electionday. 
378 An Assessment of Minority Voting Rights Access

Nov. 20062 Nov. 20083 Nov. 20104 Nov. 20125

-Winston

NE -Colfax

NJ -Salem -Salem

NM -Cibola

-Sandoval

-Cibola

-Sandoval

-Sandoval

NY -Kings -Brooklyn

-Manhattan

-Westchester County

-Orange

OH -Cuyahoga -Cuyahoga

-Lorain

SC -Williamsburg

SD -Buffalo

-Charles Mix

-Shannon -Shannon

TX -Fort Bend

-Galveston

-Medina

-Wilson

-Dallas

-Fort Bend

-Galveston

-Dallas

-Fort Bend

-Galveston

-Williamson

-Dallas

-Fort Bend

-Jefferson
Appendices 379

APPENDIX H: DOJ ELECTION MONITORS BY YEAR, STATE, 

AND COUNTY1

(NOTE: Formerly covered jurisdictions are highlighted in red; other observers were sent

under federal court orders specific to the jurisdictions)

Nov. 20062 Nov. 20083 Nov. 20104 Nov. 20125 Nov. 20146 Nov. 20167

AK -Bethel Census 

Area

-Dillingham 

Census Area

-Kusilvak 

Census Ara

-YukonKoyukuk 

Census Area

AL -Lee 

-Tuscaloosa

-Mobile

AR -Pulaski

AZ -Cochise

-Maricopa

-Pima

-Pima -Maricopa -Pima -Maricopa -Maricopa 

-Navajo

CA -Alameda -Alameda -Alameda -Alameda -Alameda8

 

1 DOJ Responses to USCCR Interrogatories 12 and 13. 2 Press Release, U.S. Dep’t of Justice, Justice Department Sends Election Observers to 22 States Across the Country 

in Unprecedented Monitoring Effort for a Midterm Election (Nov. 6, 2006), 

https://www.justice.gov/archive/opa/pr/2006/November/06-crt-752.html. Also, in this press release, it is not clear 

which jurisdictions received federal observers and which jurisdictions received election monitors. The Commission 

staff used a document released by the Justice Department, which enumerates which jurisdictions historically 

received federal observers prior to Shelby County. If a jurisdiction was mentioned in the Nov. 2006 release, but not 

on the Justice Department list as having historically received federal observers, then we coded those jurisdictions as 

having received election monitors. See also U.S. Dep’t of Justice, About Federal Observers and Election 

Monitoring, https://www.justice.gov/crt/about-federal-observers-and-election-monitoring 3 Press Release, U.S. Dep’t of Justice, Department of Justice to Monitor Elections in 23 States Across the Nation on 

Election Day (Oct. 30, 2008), https://www.justice.gov/archive/opa/pr/2008/October/08-crt-973.html. 4 Press Release, U.S. Dep’t of Justice, Department of Justice to Monitor Elections in 18 States Across the Nation on 

Election Day (Oct. 29, 2010), https://www.justice.gov/opa/pr/justice-department-monitor-polls-18-states-electionday. 5 Press Release, U.S. Dep’t of Justice, Department of Justice to Monitor Elections in 23 States Across the Nation on 

Election Day (Nov. 2, 2012), https://www.justice.gov/opa/pr/justice-department-monitor-polls-23-states-electionday. 6 Press Release, U.S. Dep’t of Justice, Justice Department Announces On-the-Ground Monitoring at Polling Places 

in 18 States on Election Day (Nov. 3, 2014), https://www.justice.gov/opa/pr/justice-department-announces-groundmonitoring-polling-places-18-states-election-day-0. 7 Press Release, U.S. Dep’t of Justice, Justice Department to Monitor Polls in 28 States on Election Day (Nov. 7, 

2016.), https://www.justice.gov/opa/pr/justice-department-monitor-polls-28-states-election-day. 8 Id. at 7. The monitors sent to Alameda County may potentially be observers due to court orders under the Voting 

Rights Act. Given the lack of clarification, this jurisdiction remains identified as having been monitored.
380 An Assessment of Minority Voting Rights Access

Nov. 20062 Nov. 20083 Nov. 20104 Nov. 20125 Nov. 20146 Nov. 20167

-Orange

-San Benito

-San Diego

-San Francisco

-San Mateo 

-Santa Clara

-Ventura

-Riverside

-Santa Clara

-Napa -Napa

-Siskiyou

CO -Adams

-Arapahoe

-Denver

-Arapahoe

-Denver

CT -East Hartford

-Farmington

-Hartford

-Middletown

-New Britain

-Newington

-West Hartford

FL -Broward

-Duval

-Hillsborough

-Osceola

-Palm Beach

-Duval

-Hillsborough

-Seminole

-Seminole -Duval

-Hendry

-Hillsborough

-Lee

-Miami-Dade

-Orange

-Osceola

-Duval

-Hillsborough

-Lee

-Orange

-Hillsborough

-Lee

-Miami-Dade

-Orange

-Palm Beach

GA -Fulton

-Gwinnett

-Fulton

-Gwinnett

-Hancock

HI -Honolulu

IL -Cook

-Chicago

-Chicago

-Cook

-Chicago -Chicago

-Cook

IN -Madison -La Porte

KS -Ford -Ford -Finney -Finney -Finney

LA -Concordia 

Parish

-New Orleans

-Jefferson 

Parish

-Orleans Parish

-Orleans Parish

MA -Boston

-Springfield

-Quincy

MI -Hamtramck -Macomb -Detroit

-Hamtramck

-Dearborn 

Heights

-Detroit

-Hamtramck

MO -St. Louis

MS -Madison -Neshoba

MT -Rosebud

NC -Alamance -Alamance

-Wake

-Robeson -Cumberland

-Forsyth

-Mecklenburg

-Robeson

-Wake
Appendices 381

Nov. 20062 Nov. 20083 Nov. 20104 Nov. 20125 Nov. 20146 Nov. 20167

ND -Benson

-Rolette

NE -Colfax -Colfax -Colfax -Colfax

-Douglas

-Douglas 

NJ -Bergen

-Essex

-Hudson

-Middlesex

-Salem

-Bergen -Passaic -Bergen -Middlesex

NM -Sandoval

-Cibola

-Bernalillo

-Cibola

-Cibola -Cibola

NV -Mineral

-Washoe

NY -Queens

-Richmond

-Westchester

-Orange -Queens -Orange -Kings

-Orange

-Queens

OH -Cuyahoga -Cuyahoga -Lorain -Franklin

-Hamilton

-Cuyahoga

-Hamilton

-Lorain

-Cuyahoga

-Hamilton

-Franklin

PA -Berks -Philadelphia -Philadelphia -Allegheny 

-Chester

-Delaware

-Lehigh

-Philadelphia

-Lehigh -Allegheny

-Lehigh

-Philadelphia

RI -Pawtucket

-Providence

SC -Dorchester 

-Georgetown

-Richland -Richland

SD -Bennett

-Buffalo

-Charles Mix 

-Denver

-Mellette

-Shannon

-Todd

-Ziebach

-Bennett

-Jackson

-Mellette

-Shannon

-Todd

-Bennett

-Todd

-Charles Mix

-Shannon

-Bennett

-Jackson

-Oglala Lakota

TN -Shelby -Davidson

-Shelby

-Shelby -Shelby

TX -Brazos

-Ector

-Hale

-Travis

-Williamson

-Gonzales

-Waller

-Harris -Harris -Harris

-Waller

-Dallas

-Harris

-Waller

UT -San Juan

VA -Chesterfield -Fairfax

-Prince 

William
382 An Assessment of Minority Voting Rights Access

Nov. 20062 Nov. 20083 Nov. 20104 Nov. 20125 Nov. 20146 Nov. 20167

WA -King

-Piece

-King

WI -Milwaukee -Milwaukee -Milwaukee
Appendices 383

APPENDIX I: JURISDICTIONS COVERED UNDER SECTION 

203 OF THE VOTING RIGHTS ACT, 1977-20161

19772

 

1 U.S. Census Bureau, “The U.S. Census Bureau & Section 203 Determinations” 

https://www.eac.gov/file.aspx?&A=7oJOXbEAifz3gdeQKjxLYkasF4eAE8WgLPdqKqmkVWo%3D (last accessed 

June 12, 2018). 

2 Id. at 11. 
384 An Assessment of Minority Voting Rights Access

19843

 

3 Id. at 12.
Appendices 385

19924

 

4 Id. at 13.
386 An Assessment of Minority Voting Rights Access

20025

 

5 Id. at 14.
Appendices 387

20116

 

6 Id. at 15.
388 An Assessment of Minority Voting Rights Access

20167

 

7 Id. at 16.
Appendices 389

APPENDIX J: COPIES OF INTERROGATORIES AND 

DOCUMENT REQUESTS SENT BY THE COMMISSION TO THE

DEPARTMENT OF JUSTICE
390 An Assessment of Minority Voting Rights Access
Appendices 391
392 An Assessment of Minority Voting Rights Access
Appendices 393
394 An Assessment of Minority Voting Rights Access
Appendices 395
396 An Assessment of Minority Voting Rights Access
Appendices 397
398 An Assessment of Minority Voting Rights Access
Appendices 399
400 An Assessment of Minority Voting Rights Access