The war on voting rights
It’s been nearly three years since the U.S. Supreme Court stuck its gavel in where it didn’t belong and gutted a key part of the Voting Rights Act of 1965. Predictably, states with histories of suppressing votes quickly adopted fresh laws that have made it harder for the poor and for minorities — groups that often overlap — to exercise their right to vote. Some states now require costly or hard-to-obtain voter IDs, while others have reduced the days and hours during which voters can register or cast their ballots.
A welcome decision Wednesday by the 5th Circuit Court of Appeals buttresses the argument that the Supreme Court underestimated the willingness of some states to abridge the right to vote. The 5th Circuit held that Texas’ law requiring IDs discriminated against African Americans and Latinos, who were less likely to have ready access to the accepted forms of identification (including passports and driver’s licenses), and ordered a lower court to find a fix before the November election. It also asked the lower court judge to consider anew whether Texas legislators crafted the law intentionally to suppress minority voting; if the court finds it did so, Texas could be forced back into the ranks of jurisdictions that require the federal Justice Department’s permission before changing or adopting voting laws.
Whether all eligible Texas voters will have equal access to the ballot box for the upcoming presidential election is unknowable now. Beyond that, Texas is far from the only state to have adopted laws that make it more difficult for some Americans to vote. At least 16 other states, nearly all of them in the South and Midwest and run by Republicandominated legislatures, have adopted stringent voting restrictions. It’s no coincidence that the groups most affected by the laws also tend to vote for Democratic candidates.
Why the push for voter ID laws? Ostensibly, it’s been done in the name of deterring voter fraud. But voter fraud is a chimera. Studies have found that voter-impersonation cases are rare — in fact, the court in the Texas case noted that only two cases of inperson fraud had been uncovered out of 20 million votes cast over a decade before the ID law was passed. But expert testimony showed that 608,000 registered voters now lack the required ID to vote. So the fix for the nonexistent problem disenfranchised enough people to populate a city.
That the courts have put the brakes on Texas’ unconscionable effort to keep voters from the polls is good. But combating the broader campaign of disenfranchisement shouldn’t have to rely on case-by-case decisions by judges. The nation had a working answer to vote suppression — the Voting Rights Act, which required jurisdictions with a history of voting discrimination to pre-clear any changes in their election procedures with the Justice Department or a federal judge. But that provision disappeared with the 2013 Supreme Court ruling that the formula for determining which jurisdictions needed preclearance was out of date.
Chief Justice John G. Roberts Jr., who wrote the opinion, had a partial point. The formula was rooted in data on low minorityvoter turnout, use of literacy tests and other factors that dated to the 1960s and early 1970s. But Congress addressed that problem in 2006 when it renewed the act for 25 years, concluding that discrimination in the covered jurisdictions was still a problem and pre-clearance was still the solution. The moves by so many jurisdictions toward restrictive voting rules suggest that Congress had it right, and since the Constitution gives Congress responsibility to “enforce … by appropriate legislation” the 15th Amendment’s guarantee that the right to vote “shall not be denied or abridged … on account of race, color, or previous condition of servitude,” the Supreme Court should have left the issue alone instead of muddying the waters.
So here we are heading into one of the most significant presidential elections in memory. Unfortunately, not all voters will have a say in it, depending in large part on their race and place of residence. Congress can and should fix this by updating the formula for which jurisdictions need pre-clearance. Until it does so, the nation will be left with an election system prone to manipulation and discriminatory practices. Rather than engendering faith in the political system, this reinforces cynicism about politics and government in general, and undercuts the primary exercise of democracy: voting.