Almost 1,700 polling places have been closed in counties that are no longer subject to federal oversight brought on by past voting discrimination, according to a new study that was highlighted at a congressional hearing Tuesday.
The poll closings, documented in the report Democracy Diverted by the Leadership Conference Education Fund, was one of several examples witnesses gave of what they say are discriminatory practices that have occurred since the Supreme Court voided a key part of the Voting Rights Act six years ago.
That decision effectively neutralized the so-called preclearance requirement, under which officials in areas with historically bad track records of voting discrimination were compelled to get approval from the Justice Department or a federal court before making any changes in their election processes.
The Supreme Court ruled in 2013 that the evidence that had been used to decide which areas — mostly in the South — were covered by preclearance was out-of-date, and therefore unconstitutional and no longer valid. Congress has never come close to developing new standards.
But this year, the new House Democratic majority is looking to push legislation that would revive preclearance (using a new system for identifying places with records of discrimination) and Tuesday's hearing was part of a strategy to build support for the bill by showing that discrimination continues to occur.
But Mike Johnson of Louisiana, the ranking Republican on the Judiciary subcommittee that conducted the hearing, said that too often claims of voting discrimination are based on disparate outcomes of new laws, not discriminatory treatment.
"Disparate impacts can't be used to meaningfully prove discrimination," he said.
Johnson cited as an example a South Carolina voter identification law that was attacked for allegedly discriminating against African-American voters because 10 percent of black people, but only 8.4 percent of white people, lack a driver's license. He said critics highlighted that the share of black voters without that most widely used form of identification was 19 percent higher than that of white voters — which while mathematically accurate, he conceded, exaggerates the difference. And the law itself treated everyone the same.
Judiciary Chairman Jerry Nadler, a New York Democrat, responded that disparate impact is a "very, very useful evidentiary tool" in identifying discriminatory actions.
Besides voter identification laws and closing of polling sites, witnesses also cited purging of voter registration lists and reducing the number of days for advance voting as examples of potentially discriminatory actions.
Vanita Gupta, president of the Leadership Conference on Civil and Human Rights, said the greatest number of polling places closed since the court's decision were located in Texas (750), Arizona (320) and Georgia (214).
Dale Ho, director of the Voting Rights Project at the American Civil Liberties Union, said without the preclearance requirement, advocates who believe a new voting provision is discriminatory must file lawsuits, which are costly and take a long time to decide.
He cited a 2016 federal appeals court ruling in a lawsuit filed by the ACLU (among others) that struck down as discriminatory a North Carolina law that required voters to have an ID, removed a week of early voting and ended same-day voter registration, among other provisions.
He said the case took 34 months and cost nearly $6 million and that the 2014 election was held under rules that the court later said discriminated against black voters.
Myrna Perez, director of voting rights and elections programs at the Brennan Center for Justice, focused her testimony on what she said has been excessive purges of voter registration rolls.
Perez said from 2014, after the Supreme Court ruling in the Voting Rights Act case was decided, through 2016 about 16 million names were removed from voting rolls, which was 4 million, or one-third, more than were struck from the rolls from 2006 to 2008. He said in many cases people who should not have been removed only found out when they showed up to vote.
Nadler used a popular arcade game to describe the difficulty voting rights advocates now have in challenging the variety of voting laws being passed that they believe are discriminatory.
"The game of Whack-a-mole has returned with a vengeance," Nadler said.
No Republicans are sponsoring the House Democrats' bill to revive preclearance, and even if the measure passes the House (likely on party lines) it seems doomed to get ignored in the GOP-majority Senate.
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