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Because the Supreme Court stripped the "preclearance" section of the Voting Rights Act in 2013, states must enact their own laws to protect the rights of communities of color, according to Greenwood and Norouzi.
Why it's time for every state to enact its own voting rights law
Greenwood is co-director for voting rights and redistricting at the nonpartisan Campaign Legal Center. Norouzi is deputy director of OneAmerica, an immigrant and refugee advocacy organization in Washington state.
In 2013, Justice Ruth Bader Ginsburg argued that gutting provisions of the Voting Rights Act that protected communities of color from electoral discrimination was like "throwing away your umbrella in a rainstorm when you are not getting wet." Yet that is exactly what has been happening around the country as barriers have been placed in front of communities of color. Increasingly restrictive voter ID laws, polling place closures and felony disenfranchisement laws have popped up in many states.
Without the full protection of the federal Voting Rights Act, a landmark achievement of the civil rights era that was neutered by the Supreme Court seven years ago, the onus has been shifted to the states to protect communities of color from voting discrimination.
And so every state should adopt its own version of a voting rights act and other election system reforms to ensure that communities of color can gain equal access in voting and representation.
The original 1965 law vastly improved the ability of communities of color to participate in our democracy. Much of this success came from the fact that it required preclearance, which meant that states and localities with long histories of suppressing voters of color needed to gain approval from the federal government before instituting new voting rules. Soon after the law's enactment, the number of registered voters of color skyrocketed. In the seven states originally subject to preclearance, the number of registered Black voters ballooned from less than a million in 1965 to nearly 3.6 million in 1986. Additionally, with communities of color able to elect their preferred candidates, more elected officials of color started serving in state and local governments.
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But even though the Supreme Court has gutted the federal law, states can write their own statutes to ensure communities of color make strides in ballot access and representation. Nearly 200 jurisdictions have seen changes to their electoral systems to better protect the voting rights of people of color in the roughly 20 years since the enactment of the California Voting Rights Act.
The version of the law enacted in Washington state goes beyond California's protections, in particular by explicitly allowing jurisdictions to adopt electoral systems other than single-member districts. This includes ranked-choice voting, which can better enfranchise communities of color that are spread out across a jurisdiction. Under this alternative election system, voters may rank candidates for each office in order of preference. If one is the first choice of most voters, that candidate wins. If not, the candidate in the top spot on the fewest ballots is eliminated, and those ballots are redistributed to the candidates named as second choice. This process continues until someone has more than half of the vote.
Latinx activists are pushing rural Yakima County, 140 miles southeast of Seattle, to adopt RCV. The county commission uses an at-large voting system whereby all the commissioners can get elected by the white plurality — leaving Latinx and Native American voters unable to elect their candidates of choice. Even though half of Yakima County is Latinx, only one Latinx person has ever been elected to the commission.
In January, our two organizations sent a letter on behalf of the activists, putting the county on notice its system was denying the Latinx community "an equal opportunity to elect candidates of their choice." Since Yakima County has failed to respond by engaging the community in creating a solution, we sued the county this week for violating the Washington Voting Rights Act. The growing non-white community deserves equal representation and to have their voices heard.
Ranked-choice elections have the potential to uplift communities of color elsewhere too. They fundamentally encourage candidates to reach out to a more diverse pool of voters and prevent candidates from relying on narrow white majorities to propel them to victory. The RCV advocacy group FairVote, which studied two decades of elections in California cities, found that the share of candidates of color grew to 26 percent from 17 percent in the municipalities with RCV — and slipped by a point, to 11 percent, in places with traditional elections.
Sometimes, creating one or more electoral districts with a non-white majority can remedy political discrimination and allow communities of color to choose their preferred candidates. But often these communities are dispersed across several neighborhoods and cannot be packed into one district in a way that maximizes their electoral power. In these jurisdictions, RCV would be the strongest option for allowing everyone to participate equally in the governing process — because it can take varying levels of racial segregation into account.
However, equitable representation relies on states having voting rights laws that allow them to force jurisdictions with long histories of voting discrimination to change their election systems. Only Oregon along with California and Washington have their own such laws on the books now, although such a measure is making its way through the New York Legislature. The other 46 states should follow suit.
State voting rights laws would not only protect communities left to face voting discrimination in place of a federal law that's hardly in full effect, they would also improve on the original Voting Rights Act by creating better mechanisms for addressing local instances of voting discrimination.
For the past seven years, communities of color may have been without umbrellas as they try to weather the storm of voting discrimination. The states could step in and give them better protection than ever.
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"What is the point?" Wendy Sue Johnson (center) said of attending meeting with legislators after a partisan gerrymander went into effect. "No one is listening to us."
The human cost of the gerrymandering decision
Greenwood is co-director of voting rights and redistricting for the Campaign Legal Center, a nonprofit government watchdog.
Five Supreme Court justices declared last week that though partisan gerrymandering is unconstitutional and a scourge on our democracy, the court is both unwilling and unable to step in and police this terrible practice. That's right – extreme gerrymanders, including those that benefit Democrats in Maryland and Republicans in North Carolina, are going to continue through 2020, and likely get worse when the redistricting maps are redrawn in 2021.
I have been litigating to end partisan gerrymandering for the past five years, including representing plaintiffs from Wisconsin in Gill v. Whitford, the case that went to the Supreme Court last year, and plaintiffs from North Carolina in Rucho v. League of Women Voters of North Carolina, which was decided last week at the Supreme Court.
Last year the court told us in Whitford that it wanted us to develop further evidence to explain the harms to individual voters of the Wisconsin gerrymander. Consequently, my team has spent the last 12 months hearing the tragic stories of Wisconsin voters who were harmed by the extreme gerrymander and now feel left out, left behind and totally ignored by their legislators. At the least it is depressing; in many cases it brings me to tears.
Take Linea Sundstrom of Milwaukee, an archaeologist turned activist, who set up a group called Supermarket Legends whereby volunteers educate people about the voting process and register people to vote as they go into or out of grocery stores. Sundstrom testified that multiple people told her they didn't want to register to vote because they knew their vote wouldn't count for the state Assembly candidates. And it's hard to argue that that is a crazy conclusion – in two out of the four elections since 2012, more people have voted for Democratic candidates for the Assembly, yet the chamber has remained more than 60 percent Republican the entire time.
Or take Wendy Sue Johnson of Eau Claire, a family lawyer who was active on her local school board pre-2010. All the school boards in the area used to meet monthly with Assembly representatives (both Democrats and Republicans) to discuss how they could advocate for the Chippewa Valley schools down in Madison. But after the gerrymander was adopted in 2011, the Republican representatives stopped turning up at the meetings and stopped responding to requests for help from their constituents. "What is the point?" thought Johnson. "No one is listening to us."
And then there's Janet Mitchell of Racine, retired school teacher and lifelong civil rights activist. She's volunteered for more political campaigns than she cares to remember, but in 2018 when she was set to manage volunteers to knock on doors for Assembly candidates on the weekend before the election, half the volunteers didn't turn up. Ever devoted to her cause, Mitchell called up the missing volunteers to find out what was going on. Universally the response was the same: Look, the Democratic candidate is just not going to win, with these lines it's impossible. And what could she say to that? Though Mitchell has been fighting impossible causes all her life, she knew the voting maps were stacked against Democrats in Racine County. How could she promise otherwise?
I could recount story after story of patriotic individuals around Wisconsin and North Carolina who keep fighting in the face of impossible odds. Being a part of the federal lawsuits to end partisan gerrymandering gave them hope that this country might renew its promise to democracy. And then came June 27, 2019. The door for federal claims to stop partisan gerrymandering is now firmly sealed shut.
I have spent the past few days speaking with dozens of individuals across the country about where we go now. In Michigan, Missouri, Colorado and Utah the people are fired up – in each state the voters brushed aside the politicians and adopted independent redistricting commissions last year by popular referendum – each one requires partisan fairness in the drawing of redistricting plans. In Arkansas, Oklahoma, Nebraska, Oregon, Virginia and a dozen other states voters are working together to adopt independent commissions and/or partisan fairness language so their next set of voting maps won't be gerrymandered. This is great news for many people in many states.
And yet, the law in Wisconsin and North Carolina leaves voters out in the cold. There is no mechanism in either state to use a ballot initiative process to adopt an independent commission or to adopt fairer rules for redistricting. The voters in these states (and many others) have to rely on the good faith of a gerrymandered legislature to choose to adopt change that will take power away from themselves and give it back to the people. I can barely write that with a straight face. That reform camel is not going to make it through the eye of the gerrymandered needle.
On Thursday afternoon, I spoke with Donald Winter, of Neenah, Wis. Winter has lived all of his 83 years in Wisconsin, except when he was deployed overseas with the Marine Corps in the 1950s. He found time, in addition to his work in a local foundry, to serve as an alderman on his local council for over 20 years. I explained the Supreme Court's decision to him. "Oh ...." he said. Then he took a deep breath and asked in a genuinely searching way: "Do they just not care about us?" My eyes welled with tears. "I care about you, Mr. Winter, and there are millions of Americans who do, but … well ... a majority of those in power, those at the Supreme Court and those in your state legislature, I guess they don't."
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