On September 30, the Alabama Law Enforcement Agency, which operates the state’s Department of Motor Vehicles (DMV), announced the closure of 31 DMV locations due to approximately $11 million in budget cuts. It’s a story that would largely go unnoticed if not for its serious implications: since a 2011 law took effect last year, every voter in Alabama needs a government-issued ID to vote. Many obtain the necessary identification by registering for a driver’s license.
According to 2010 U.S. Census data, the black population of the United States is 13.2 percent, but in the State of Alabama it’s twice the national average at 26.7 percent. While this is still only about a quarter of the state’s total population, 11 counties in Alabama have black majorities, and six of those counties have black populations of 75% or more. This means that, geographically, the state is segregated in practice, if not in law.
This segregation is particularly problematic when policy is realized differently in areas with different racial makeups. The recent DMV closures offer a troubling example of such practices: DMV locations were closed in 72% of the black majority counties and in every county in which the black population is greater than 75%. What’s more, all of these counties are located in a region known as the Black Belt, which has arguably seen more discrimination than any other place in the country.
When Congress passed the Voting Rights Act of 1965 (VRA), it did so with the express intention of enfranchising racial minorities, especially in the South. By 1964, Alabama had already claimed a reputation as one of the worst offenders in voter discrimination, often requiring citizens to pay poll taxes and pass literacy tests before registering to vote. In March 1965, Alabama became the epicenter of one of the most famous civil rights protests in our nation’s history: the march from Selma to Montgomery, both located in the black belt. This struggle for equal rights lead to the VRA, which the Department of Justice heralds as “the single most effective piece of civil-rights legislation ever passed by Congress.” That is, until June 2013, when the Supreme Court struck down one of the key provisions of the VRA: Section 5.
Section 5 required certain states and certain counties to register for “preclearance” from the Department of Justice. Effectively, if a regio wanted to change any law pertaining to elections, they would have to get explicit authorization from the U.S. Attorney General. When the VRA was first passed, preclearance was mandated for Georgia, Louisiana, Mississippi, South Carolina, Virginia, parts of North Carolina, and not surprisingly, Alabama.
Shelby County v. Holder, the Supreme Court case that challenged this provision of the VRA, was ultimately decided in 2013. Justice John Roberts wrote in his majority opinion that the formula for preclearance “[is] based on 40-year-old facts having no logical relation to the present day.” The opinion essentially claims that the oppressive practices against which Section 5 guarded have been eliminated from voting procedures in America.
In practice, it is entirely possible that Alabama’s law could have been approved by the DOJ before the Shelby v. Holder decision. States like Alaska, Texas, Missouri, Mississippi, Tennessee, and Indiana secured approval for strict voter ID laws prior to Shelby v. Holder. However, mapping the states with the strictest voter ID laws, along with the results from the 2008 and 2012 elections, reveals a disturbing pattern. The states with the strictest voter ID laws all voted Republican in the past two presidential elections. Could the policy of having strict voter ID laws influence the outcome of elections for the benefit of a specific party?
A 2015 paper by the Pew Research Center shows that “Republicans have leads among whites–particularly white men” and that, “Democrats hold advantages… among blacks, Asians, and Hispanics.” Blacks also earn less on average than whites: according to 2010 census data, $34,000 a year to $58,000 respectively. This all indicates that blacks are less likely to have photo identification, as they are less likely to own cars (and therefore have drivers licenses) or travel out of the country with a passport. This is exactly what the Government Accountability Office (GAO) found in a 2014 paper.
It is easy to see how strict voter ID laws adversely affect the ability for poor people and racial minorities, especially blacks, to vote. Proponents of voter ID laws claim that the policy helps guard against voter fraud. Whether or not this is true, these laws are also deeply problematic in that they systematically disadvantage people of color.
The morality of these policies is hotly contested. States have a legitimate interest in limiting voter fraud, although some see these policies as subversive partisan tactics. On the campaign trail last week, Democratic presidential candidate Bernie Sanders claimed that “Republican cowards all across the country, including Alabama, are very clearly trying to win elections by suppressing the vote and making it harder for low-income people and minorities to vote.”
However, this is where the law complicates things. It isn’t clear that the intent of these DMV closures was voter suppression. Alabama is indeed in serious budget trouble, and DMV closures occurred throughout the state, not just in the Black elt. However, it is hard to argue that these closures will not disproportionately affect minorities.
According to Nicholas Stephanopoulos, a University of Chicago Law School professor and expert on election law,the Shelby County v. Holder decision means that no jurisdictions require Section 5 preclearance, which is why the Alabama law was able to go into effect largely unchallenged. Stephanopoulos also adds that “although the closures don’t directly violate the VRA, as closing DMV locations isn’t necessarily an election issue, the fact that many of these closures are in the Black Belt is really helpful evidence for a VRA claim against Alabama’s voter ID law.” Stephanopoulos argues that another provision of the VRA, Section 2, still applies. Section 2 prohibits discriminatory voting practices on the basis of race, color, and language. Stephanopoulos notes that intent isn’t required to constitute a VRA violation: “you only need to show a disparate effect on minorities.”
When there are no DMV locations in any county in which the black population is greater than 75%, it’s easy to see this “disparate effect.” Stephanopoulos also argues that the closures themselves could potentially be challenged under constitutional grounds. He says, “there is an argument that the closures violate the equal protection clause of the 14th Amendment, though for constitutional claims, intent is required, which would be hard to show.”
There is no clear standard for the courts to use when dealing with VRA claims, as a body of relevant case law has yet to develop. If no one challenges the Alabama situation, it could be used as an example for other states trying to suppress voters. Fortunately, the Southern Poverty Law Center and the ACLU of Alabama are both working independently to fight the closures and ultimately restore Section 5.
While the intent of the closures is nearly impossible to prove, their effects are clearly problematic. Because of Alabama’s continued geographic segregation of race and the racial wealth gap (however unintentional), the state’s DMV closures demonstrate that the Roberts opinion fails to address the issues at stake in Section 5. While overtly racist policies may be rare now in Alabama, though the state’s history of segregation remains a challenge. Policies such as these fail to consider a long history of oppression, and the continued legacy of that oppression. Congress passed the VRA because racial minorities were not voting at the rate of their white counterparts. When policies, even 40 years later, effectively keep racial minorities from voting, it is clear that we still need civil rights legislation, especially Section 5.
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