an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It has been a huge week for voting rights in Texas. Two special three-judge federal courts in Washington, DC issued opinions this week that blocked, respectively, Texas’ redistricting maps and Texas’ new photo ID law. The first opinion was, to a surprising degree, about intentional racial discrimination. The second opinion was, to a surprising degree, about the links between poverty, race, and dignity of individual voters.
First, on Tuesday, a special three-judge court in DC held that Texas’ redistricting maps could not satisfy Section 5 of the Voting Rights Act. In an opinion by Judge Griffith, the court held not only that the plans were retrogressive in their effect on minority voting strength, but also that Texas intentionally discriminated against minority voters in drawing up the plans. This opinion was rich with detailed testimony from minority lawmakers, as well as internal emails from staffers involved in drawing the lines, which the court used to draw inferences about discriminatory intent, along the lines laid out long ago in a case called Arlington Heights. Among the pieces of evidence that seemed to strike the court as the most indicative of discriminatory intent was evidence that “the legislature removed the economic guts from the Black ability districts” and removed many minority incumbents’ own district offices from their districts—whereas “no such surgery was performed on the districts of Anglo incumbents.” (p.40) Texas called this “coincidence”; the court didn’t buy it. The court emphasized emails and actions by the line-drawers that it found suggestive of attempts to cover up a redistricting process that was very much about race, not just partisanship. This is all fascinating, nitty-gritty stuff, very deep into the thicket of how a polarized, partisan legislature does what is perhaps its most political work.
On Thursday, a different special three-judge court in DC held in a very different kind of opinion that Texas’ new voter ID law also fails to satisfy Section 5 of the Voting Rights Act. This opinion, by Judge Tatel, is sparer than the redistricting opinion. It does not much discuss what Texas’ intent might or might not have been. The court heard lots of expert evidence from all sides on the question of whether Texas’ new, strict photo ID law would have a disparate impact on minority voters. The court essentially rejected all of that evidence. Since Texas had the burden of proof, that could have been the end of the case, but it was not: the court went on to hold that the law does in fact disproportionately burden minority voters because of what amounts to the following syllogism:
The law disproportionately burdens poor voters in Texas
Minority voters in Texas are disproportionately poor
Therefore, the law disproportionately burdens minority voters in Texas
This syllogism has a lot going for it. The evidence for (1) is overwhelming. To obtain a voter ID, the law requires voters without drivers’ licenses in many parts of Texas to travel long distances, without public transportation, produce documents that cost money, and take time off work (due to offices being closed on the weekend and after 6pm). The fact that poor voters will have a relatively harder time with this is obvious. Meanwhile, the truth of (2) is clear and undisputed. Strictly speaking, (3) does not follow as a matter of logic from (1) and (2). One could in theory imagine a law that manages to place burdens mainly on poor white voters (although constructing such a hypothetical is tricky). But in the real world, (3) is essentially always going to follow from (1) and (2). A court ought to be able to infer that it “almost certainly” does follow, absent evidence to the contrary; that is what this court did.
It is a wonderfully straightforward approach. But it raises some profound questions. The court acknowledges that “[t]o be sure, a section 5 case cannot turn on wealth alone.” Section 5, the court explains, blocks a law that disproportionately burdens poor voters—(1)—only in the case where a racial group protected by section 5 is also disproportionately poor—(2). But where is (2) not the case? It would seem that all you really need to prove is (1): because of the incredibly large racial wealth gaps that are part of American life, the rest of the syllogism will then follow. This raises two surprising prospects. First, does section 5 actually protect (via an indirect but reliable logical step) the voting rights of the poor? Second, does the link between race and poverty actually provide a simpler and more secure foundation for claims about race-based disenfranchisement than the usual route of statistical evidence about racial impact?
The prospect that a law aimed at racial injustice might also aim to protect the rights of the poor would have made sense to many of those present at the creation of our voting rights regime -- from the Rev. Martin Luther King, Jr., whose last political act was the Poor People’s Campaign, to President Johnson, Nicholas Katzenbach and all those involved with the early enforcement of the Voting Rights Act of 1965, whose very first target was the poll tax several states still imposed in state elections, disenfranchising poor minority voters and poor white voters. In Harper v. Virginia, in 1966, the Court struck down those poll taxes in an opinion that seemed to announce a Fourteenth Amendment jurisprudence of wealth classifications: “Wealth,” the Court wrote, “like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process,” and thus a poll tax is “invidious” discrimination incompatible with equal protection. But as anyone who has taken Con Law I should be able to tell you, doctrinally that route proved a dead end. Wealth-as-a-suspect-class, on the basis of an analogy from race to class, was rejected a few years later by a more conservative Court.
The syllogism the court employed in the Texas voter ID case Thursday avoids all that. It in no way reasons by analogy from race to class or suggests that the poor do or should enjoy direct legal protection. Instead it works because (and where) race and poverty overlap. The syllogism approach is similar to, and in some ways the mirror image of, an approach to racial justice that involves protecting the rights of minority voters through the enactment of universal guarantees that protect everyone – and often, especially, the poor. I have in mind protections like those of the 24th Amendment, the anti-poll tax amendment, which Bruce Ackerman and Jennifer Nou have shown could have been and nearly was the basis for Harper, and which remains a powerful reason to invalidate voter ID laws today when those laws amount to poll taxes in federal elections.
Thursday’s decision had something interesting to say about the question I highlighted in my last post about the adequacy of absentee ballots as a solution to the problem of voters lacking photo ID. Texas allows certain groups, such as elderly voters, to cast absentee ballots. But the court wrote:
“Some voters over age 65 will undoubtedly prefer to cast their ballots at the polls—perhaps out of habit, a sense of civic pride, or simply because they wish to follow the news all the way up to Election Day before selecting a candidate. Reverend Peter Johnson, an African American clergyman and a leader in Texas’s civil rights community testified:
I have a group of African-American senior citizen women, they want to go to the voting polls and stand in line and vote at the voting polls. There’s a certain degree of dignity for them to do this . . . . Because these people appreciate this sacred right to vote, and they’re not going to vote absentee.”
What would we make of this quote, if we took out “African-American” and substituted “poor”? Why does race seem so important here? Poor people, too, are entitled to the “certain degree of dignity” that comes from exercising their right to vote, as first-class citizens, fully equal at the ballot box to all their fellow citizens. But it seems that today we are unused to viewing the voting rights of the poor in civil rights terms, because that has not been the main path of American law. We, and the courts, seem to need a racial angle.
And that is what is so profound about the syllogism approach the court employed in the decision on voter ID. It reconnects race and poverty in a way that makes it possible for existing voting rights law, with all its focus on racial injustice, to do some of the work of a missing corpus of civil rights law that never was but should have been: protections for the dignity of poor voters, who have a right to participate as the equal of their fellow citizens.
As a salutary side effect, the syllogism approach makes it possible to prove racial impact even in a state like Texas, whose refusal to collect racial data, combined with what the court called a “dilatory approach to discovery,” made it extremely difficult to determine the actual racial impact of the voter ID statute. Perhaps if we are too colorblind to measure minority disenfranchisement, we can nonetheless infer it from the disenfranchisement of the poor.
If so, then so much the better for poor people across Texas—including many poor white people, many of them unable to drive and living in rural counties far from much of anything, who will now be able to vote at their usual polling places this November. Those poor white Texans are among the newest beneficiaries of the Voting Rights Act of 1965. That may sound a little improbable, but it shouldn’t. As Alex Keyssar has shown, efforts to disenfranchise black people have almost always disenfranchised some poor whites too—and to many of the wealthier and more powerful whites doing the disenfranchising, that was a feature, not a bug. It is fitting that the great civil rights statute aimed at unraveling all those efforts at disenfranchisement would similarly link these groups’ fates.
It is perhaps especially fitting that such a statute should enable poor white rural Texans to vote this November, almost half a century after their great champion, Lyndon Johnson, ascended to the Presidency under tragic circumstances—and soon proceeded to alienate a considerable number of his supporters by championing and signing the Voting Rights Act. Perhaps those supporters did not understand that while it’s true that elections and political power are often zero-sum (so that giving power to one group means taking power from another), not everything in the law of democracy works that way. In particular, there is nothing zero-sum about protecting each voter’s right to participate. Where participation is the issue, the rights of minorities and the rights of poor whites are often bound together so tightly as to be inextricable. Apparently this is one of the better-kept secrets of voting rights law. Imagine how different our politics would have been fifty years ago—or today!—if word got out. Posted
by Joseph Fishkin [link]