The latest in a string of rulings limiting the GOP’s war on voting has come down. A federal court has unanimously stopped Texas from instituting a voter ID law. While this would seem contradictory to the Supreme Court’s upholding of voter ID for Indiana in 2009, this case is different because it follows the Justice Department’s pre-clearance authority under Section 5 of the Voting Rights Act. The Justice Department said that Texas’ law would impose disproportionate burdens on racial minorities, and the three-judge panel at the US Circuit Court for the District of Columbia basically agreed. They said that the poor would have additional trouble obtaining a voter ID, and that “racial minorities in Texas are disproportionately likely to live in poverty.”
The full ruling is here. As I’ve been saying, this means as much for the robust authority of Section 5 of the Voting Rights Act as anything else. Southern states with a history of discrimination want to overturn Section 5 and subsequently write their own rules for elections. The fact that the rules they devise consistently would impact racial minorities disproportionately shows the reason for Section 5 in the first place. Penda D. Hair, the co-director of the Advancement Project, which worked on the case, said in a statement, ” The panel’s decision reaffirms the necessity of Section 5 of the Voting Rights Act. Texas has a long and infamous record of suppressing the vote for people of color, from 1930s legislation that excluded African Americans from primary elections to intimidation at polling sites. The state’s voter ID law is a modern-day version of those discriminatory measures, showing that federal intervention is still needed.”
However, it’s important to note that Section 5’s constitutionality has not yet been put on the table. The rulings we’ve seen recently in Texas and Florida use Section 5 as a guiding principle. However, Texas said that the law would be unconstitutional if it barred them from implementing voter ID. And there is a separate case trailing this one that would address that. Ultimately, only the Supreme Court would be able to throw out Section 5, and they are likely to take up this case on appeal.
Rick Hasen, election law guru, writes:
This is a careful, unanimous opinion from a three-judge court which rejects most of the social science evidence submitted by both sides on whether Texas’s voter id law imposes greater burdens on minority voters. Instead, the court bases its analysis on three basically uncontested facts: (1) Minority voters are at least proportionately as likely as white voters in Texas to lack the documents needed for Texas’s new id law (which the Court calls perhaps the most “stringent” in the nation; (2) the new i.d. law will put high burdens on poor people who lack id (many of whom would have to travel up to 200 or 250 miles at their own expense to get the i.d. as well as pay at least $22 for the documents needed to get the i.d.; and (3) minority voters in Texas are more likely to be poor.
The Justice Department has not refused to pre-clear all voter ID laws in southern, Section 5-eligible states. In Georgia, the state made an effort to get IDs in the hands of everyone who wanted one, lessening the disparate impact, and the DoJ pre-cleared it (albeit under the Bush Administration). But the facts of this case leaned toward stopping the Texas law.
The next step is the Supreme Court (Texas may even request an emergency injunction to use the voter ID law in November), but we’re starting to see a cleavage in how states with Section 5 protections for minority citizens and states without them handle voter suppression laws. There has been success when DoJ has gotten involved under Section 5, but in the states where they cannot do so, the suppression laws have generally been allowed to go forward. That we don’t have a constitutional right to vote is a problem in this regard. In addition, it may be time for DoJ to pull out Section 2 of the Voting Rights Act. While they’d have to traverse a higher barrier to actually stop suppression using it, they could at least give it a shot.