On Friday, two counties in Southern states requested that the Supreme Court reconsider a key element of the Voting Rights Act. Both Kinston, North Carolina and Shelby County, Alabama hope the Court will find that Section 5 of the Act—the one that requires states and counties with a history of voter suppression to get permission from the feds before implementing changes to election law—is unconstitutional. The government has previously justified Section 5 under the Fifteenth Amendment, which guarantees the right to vote and prohibits discrimination based on race. The counties—both in states with new voter-ID laws—argue that the provision violates the Tenth Amendment, which gives states the right to regulate elections. Furthermore, they claim it unfairly gives states different levels of sovereignty by treating some differently than others.
With voter-ID laws proliferating around the country, the Voting Rights Act has been in the national conversation for months now, and Section 5 has played a major role in the debate. Voter-ID laws create barriers to voting, particularly for poor and non-white voters who are more likely to lack the necessary photo ID. The effort to suppress the vote is exactly what the Voting Rights Act sought to prevent, and it's come in handy. While the Bush administration's Department of Justice approved Georgia's strict voter-ID law—which became a national model—under Obama, the DOJ has blocked Texas and South Carolina from implementing theirs, finding them to have a discriminatory effect. (Decisions on Mississippi and Alabama's laws are still pending.) Thanks to the proceedings, we've learned a lot more about the impact of these laws. Documents from Texas revealed that Hispanic registered voters were between 47 and 120 percent more likely to lack the necessary ID, while in South Carolina, minorities were almost 20 percent more likely to have no government-issued identification.
Because of Section 5, the Department of Justice has been able to stop voter-ID laws from going into effect in four states. The trouble is, Section 5 only applies to nine list states, based largely on what those states were doing 50 years ago. And with the voter ID frenzy that began after Republicans swept into power in 2010, the states working to suppress the vote don't totally align with those that require preclearance. In recent years, ten states have passed strict voter-ID laws which require a voter to show government-issued identification to vote and will likely prevent hundreds of thousands from voting. But of those ten, only five require preclearance. Indiana, Kansas, Pennsylvania, Tennessee, and Wisconsin all got to enact their versions of these laws without any say from the feds. Across all of them, the impacts are similarly devastating for poor and non-white populations.
As more and more states pass laws that functionally disenfranchise poor and nonwhite voters, it's increasingly clear that Section 5 is no longer sufficient. The Department of Justice needs a broader ability to be proactive in preventing voter discrimination. When the Voting Rights Act was passed in 1965, Congress authorized Section 5 for only five years, with the idea that it might not be necessary after that. Since then, however, the section has been reauthorized several times—most recently in 2006, when Congress renewed it for another 25 years. But the section no longer reflects the voting landscape. It seems logical that the Department of Justice's role should be expanded, so that states not listed in Section 5 cannot implement laws that infringe on voters' rights.
The right to vote is integral to our political system, one of the defining acts of citizenship, and we should ensure it's protected. Furthermore, who votes often determines which candidate wins. In 2012, the stakes could hardly be higher. Not including Alabama, where the law is not scheduled to take effect until 2013, the states with strict voter-ID laws comprise 127 electoral votes—almost half the number needed to win.
A report by the Brennan Center for Justice last week offered a devastating look at just how difficult getting ID actually is, and how many people are impacted. Nationwide, 11 percent of eligible voters lack the required ID; among African Americans, that number skyrockets to one in four eligible voters. Hispanics and seniors also disproportionately lack a government-issued photo ID. The Center's report focuses on two key factors: the cost of acquiring the necessary documents, and the difficulties of getting to an office that issues IDs. Even in states that offer free IDs for voting, most still charge people to obtain the documents necessary to get that ID—and the costs are not insignificant. Birth certificates can run anywhere from $8 to $25. In Mississippi, there's a special Catch-22: You need a birth certificate to get a government-issued ID, but you need a government-issued ID to get a birth certificate. Meanwhile, 10 million eligible voters live more than 10 miles away from a government office that can issue an ID—and in Alabama, Kansas, Mississippi, Texas, and Wisconsin, those ID issuing offices are closed on weekends.
While many of the most egregious examples are in Section 5 states, many are not. In Wisconsin, which does not have to preclear its election laws, more than 30 percent of the voting-age population lives more than 10 miles from an ID office. In Kansas, which also isn't listed in Section 5, the voter-ID law shows similar problems with discrimination. Outside of Wichita, there's one office that issues IDs for every 22,000 eligible voters; in downtown Wichita, there is one office for every 160,000. Twenty-two percent of Kansas' black population lives in downtown Wichita where, in order to get their free IDs, they must wait much longer than their neighbors outside the city. In Tennessee, another state that doesn't need preclearance, three rural regions have large populations but no offices that issue IDs.
Perhaps the best argument for expanding the Voting Rights Act is unfolding in Pennsylvania. Only a few months ago, the state legislature passed a strict voter-ID law that required a government-issued ID that included an expiration date. The state's House majority leader, Republican Mike Turzai, openly touted it as a law that will guarantee that Mitt Romney wins the state. There's reason for his confidence: A recent study from the Secretary of the Commonwealth in Pennsylvania showed that as many as 9 percent of state voters may lack necessary identification. In Philadelphia, a Democratic stronghold with a high number of African-American voters, it could be as high as 18 percent. Yet the DOJ cannot block the law.
For those states not listed in Section 5, challenges must be fought in the courts, where the bar is much higher. The DOJ or others can claim that voter-ID laws violate Section 2 of the Voting Rights Act, which prohibits discrimination either in practice or procedure. But Section 2 cases are difficult. “In order to bring a Section 2 case, you’d have to show two things. One, that there’s a significant racial disparity and two, that the burden of getting an ID is significant enough for us to care about,” Samuel Bagenstos, former deputy assistant attorney general, told Talking Points Memo. That means the DOJ will have a harder time winning a case against a voter-ID state before the November elections. Instead, the department may have to wait until the election is over and voters can testify to the discrimination. The DOJ may have to spend the 2012 election collecting evidence of discrimination—cold comfort for those whose votes are suppressed, particularly when their votes could change the outcome of a close presidential election.
Civic groups can also sue states for violating their constitutions. The ACLU has already brought suit against the Pennsylvania law on those grounds. In Wisconsin, a court found the voter-ID law violated the state constitution, and has granted a permanent injunction, though that decision is being appealed. These lawsuits require funding from civic groups that can afford and endure lengthy legal fights, of course, and the constitutional protections vary state to state.
The Voting Rights Act was passed at a time when certain states adamantly and openly refused non-white citizens the right to vote. These new laws are less obvious and more insidious, and have been implemented in states without voter-supression histories of Texas, South Carolina, and Georgia. But regardless of a state's history, the result of voter-ID laws is still the same: Many, particularly those who are poor and not white, will lose their right to vote.
With a whole new form of voter supression spreading, it's imperative that we look at new ways to safeguard that right. Norman Ornstein, among others, has called for an expanded Voting Rights Act. At the very least, the Department of Justice should have broader authority to examine discriminatory laws and at least hold up implementation as officials examine the potential impact. States like Pennsylvania should not be able to take away minority rights so easily, and with so little scrutiny. Unfortunately, as so many states move to make it harder for poor and nonwhite citizens to vote, the momentum is on the other side, with states and counties pushing to knock down Section 5 entirely and take away the procedural protections we do have in place, incomplete though they are.