Could the Voting Rights Act Be Struck Down?

Texas doesn't have an air-tight case when it comes to the stringent voter-ID law that's currently having its week in court. Even Fox commentator Judge Andrew Napolitano said he expects the state to lose. And according to Politico, the Department of Justice (DOJ) has promised to show not only that the voter-ID law will have a discriminatory effect but that such an effect was intentional.

Texas's case, meanwhile, rests on two different arguments: First, that the state needs a voter-ID law to combat voter fraud, and second, that the state should not have to obtain preclearance—as required by the Voting Rights Act—for changes in its election law in the first place.

After failing to do so in years past, Texas's GOP-dominated legislature passed a stringent voter-ID law in 2011. Under this law, only a few forms of identification are allowed: driver's licenses and state-issued identification cards, military IDs, citizenship certificates (with photos), passports, and handgun licenses. But the law didn't go into effect immediately. Because of its history of voter suppression, Texas is one of the states listed in Section 5 of the Voting Rights Act, which requires that it receive "preclearance" before changing its election laws. That preclearance can come from either the DOJ or the U.S. District Court of the District of Columbia. 

The DOJ already shot down the Texas law in March. As I wrote at the time, it found that the law would create hurdles for some voters, particularly Hispanic and rural voters. Eighty-one of the state's 254 counties lack offices that issue driver's licenses. In rural areas, the gap between Hispanics and non-Hispanics who have necessary ID is "particularly stark." The DOJ also argued that the state's own data showed that Latinos were significantly less likely to have identification; all in all, the department estimated that at least 600,000 disproportionately minority voters could be disenfranchised. The Austin American-Statesman's Tim Eaton has an amazing piece highlighting the many people who could lose their right to vote if the law stands. 

After the DOJ's rejection, Texas Attorney General Greg Abbott turned to the District Court of D.C., where a trial has just begun. Abbott conducted a huge voter-fraud investigation to fight the supposedly rampant problem. But as the Dallas Morning News reports,

A review of Abbott’s actions failed to confirm any such epidemic. Abbott found 26 cases to prosecute—all against Democrats, all but one against blacks or Hispanics. Of those, two-thirds were technical violations in which voters were eligible, votes were properly cast and no vote was changed. None of the cases would have been affected by the voter ID requirement.

Abbott's office says he has found other cases of a few people who are not minorities or Democrats and has pointed out that in the last ten years, the feds have convicted more than 100 people for election fraud. The numbers don't exactly blow you away.

But Abbott has bigger plans. The attorney general also argues that Section 5 goes beyond Congress's constitutional authority. If he doesn't succeed at the District Court—where his prospects don't look good—he's already said he will take the case to the Supreme Court. Abbott isn't the first person to challenge Section 5 of the Voting Rights Act. In May, the U.S. Court of Appeals for the D.C. Circuit rejected a challenge from Alabama, and in 2009, the Supreme Court delayed ruling on the constitutionality of the Voting Rights Act when it upheld Indiana's voter-ID law (on which Texas's is based). But it's a conservative court to be sure, and no one should feel confident it will keep Section 5 in tact.

The stakes are high. The Voting Rights Act, one of Lyndon Johnson's central achievements, targeted Jim Crow laws throughout the South that created barriers for voters of color—literacy tests and poll taxes, for example. The law provides a slew of different provisions to ensure that eligible voters can vote. Section 2 forbids voting discrimination, and thanks to a 1982 amendment, any practice that results in discrimination is prohibited, regardless of intent. Section 5 of the law—which was just reauthorized in 2007 for the next 25 years, despite some Republican opposition—targets states and counties with a history of voter suppression, requiring them to "preclear" any changes to election law with the Department of Justice or the U.S. District Court of the District of Columbia. 

Section 5 has become invaluable for those protecting voter rights: One suit to stop the controversial Florida voter purge hinges on preclearance requirements, and the DOJ has also blocked implementation of a South Carolina voter-ID law. In states not protected by Section 5, however, there's little the DOJ can do. In Pennsylvania, where there's no preclearance requirement, a voter-ID law is scheduled to go into effect despite the fact that as many as 9 percent of registered voters lack a photo ID. If Section 5 gets struck down, the DOJ will have little authority to stop states with histories of Jim Crow laws from erecting new barriers that make it harder for poor and minority voters to cast a ballot. It's a scary thing to imagine.

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