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.




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We all have constitutional rights to “equal protection.” The constitutional basis for Section 5 is the equal protection clause of the 5th and 14th amendments (14th enforces the 5th against state action seeking to deprive U.S. persons of equal protection). Even without Section 5, racial discrimination is a denial of equal protection. Restrictions on voting which discriminate on the basis of race deprive members of that race of equal protection, with or without Section 5.
Restrictions on voting, such as voter ID laws, are unconstitutional whether or not there is a black letter “right to vote.” I think women may find it astonishing to learn that there is no “constitutional right to vote,” but if there is no such “constitutional right,” we need to closely study the language of the constitutional amendment which gave women the right to vote. How was the “right to vote” extended to women if there was no “right” to vote enshrined in the constitution for men?
Will Rick Perry now lead Texas out of the Union?
I'm more for just giving it back to Mexico with a earnestly-worded written apology. Like you would after borrowing your neighbor's rake for 200+ years.
About time….
hope we’re still allowed to quote from the New York Times. Here’s a few key grafs from the Times story on the decision:
Speaking for Texas…..not likely. That ignrnt somebitch give us all a bad reputation all over the 48 states, Alska and Hawaii. Although we’d be happy to leave, we ain’t goin nowhere with him.
If the haters in the state legislatures believe their own BS about the threat of voter impersonation, the court gives them a short roadmap for how to mandate photographic IDs for all voters:
Hang on the Baron…..lotsa good folks here. Governor, Lt Governor and state legislature excluded. Federal courts always overturn stuff including voter stuff and gerrymandered legislative districts, you name it. Best lookin’ women in the whole damn country come from Texas.
Now, if you want to put together a caravan including state government and some local country commissioners I don’t care fur in the least, just drop me a note. Rest of the state is worth keeping. Granted, MOST of Mexico is already here.
THis SHOULD lead to overturning the Pennsylvania voter ID laws that the GOP said “would deliver the state of Pennsylvania to romney.”
This is the problem with states like PA which are not covered by Section 5: the burden of proof is the opposite of what it is when DOJ sues under Section 5. As quote above @5 shows, under Section 5, the state has the “burden to prove that the law would not reduce minority voting power.” In PA, which is not covered by the “pre-clearance” procedures under Section 5, burden of proof is on those challenging the voter ID law.
In other words, in PA, voters or ACLU or NAACP or DOJ or any other challenger must produce the evidence to prove that the voter ID law will deprive minority voters of equal protection of the laws. The state is not obligated to prove that the law would not violate equal protection.
Conclusion stated without full disclosure of experimental technique:
A sample of one (your wife) is not acceptable.
Proof? Documented method? Including measurement and testing mechanism? Was this a hands on experiment or third party studies? Wife’s reaction to the application of this method?
That would uphold the stated intent of the law. How would that uphold the concealed intent and purpose of the law?