Thursday, May 19, 2016

Voter ID Meets the Voting Rights Act: The Next Big Voting Rights Battle

David Gans

There is no right protected by more provisions of the Constitution than the right to vote.  Nonetheless, as Americans prepare to go the polls to elect a new President, the right to vote is under sustained attack.  Fifteen states, including battleground states like North Carolina and Wisconsin, have new or tougher voter identification laws in place for the first time this election.  In the wake of the Supreme Court’s 5-4 ruling three years ago in Shelby County v. Holder gutting the Voting Rights Act, states have sought to make it harder for members of racial minorities, low-income voters and others to cast a ballot.  In Shelby County, Chief Justice John Roberts wrote that “things have changed dramatically” in the South, but in Texas, North Carolina and elsewhere, southern state governments have pushed the envelope in rolling back the clock on voting rights.  

One of the most pernicious—yet underappreciated—features of these laws is the way in which they discriminate against forms of government-issued photo identification often held by minority voters, forbidding federal, state, and local government employees and students at state colleges and universities from voting even with a government-issued photo identification.  The effect of this discrimination is to keep from the polls registered voters who have government-issued photo identification.  These measures do not respond to any government need:  voter identification laws target impersonation person voter fraud, which is virtually nonexistent, while leaving the more serious problem of absentee ballot fraud unaddressed.  These laws simply throw roadblocks in front of racial minorities and others who wish to exercise their constitutional right to vote.   

Two huge cases challenging new voting restrictions will soon be heard by the federal courts of appeal.  On May 24, the entire Fifth Circuit—the most conservative federal appeals court in the nation—will hear Veasey v. Abbott, Texas’s appeal from a district court ruling that struck down the state’s draconian voter identification law—which allows use of a gun permit, but not a government-issued employee or student photo identification card—as a violation of the Voting Rights Act and the Constitution.  Last August, a three-judge panel of the Fifth Circuit issued a unanimous ruling, written by G.W. Bush appointee Catharina Haynes, partially upholding the district court’s decision, and Texas asked the full court to hear the case. In its defense of the law, Texas is urging the court of appeals to create a “voter identification” exception to the Voting Rights Act, insisting that, if the Voting Rights Act is not read narrowly, the Act’s nationwide prohibition on voting discrimination is unconstitutional.  On June 21, the Fourth Circuit will hear North Carolina State Conference of the NAACP v. McCrory, an expedited appeal from a recent 485-page district court ruling upholding an omnibus voter suppression law enacted by the North Carolina legislature in 2013, which imposed a restrictive voter identification requirement, while eliminating a host of voting reforms designed to increase political participation by racial minorities and others.  

One, or even, both of these cases could reach the Supreme Court later this year.  In 2014, Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan, dissented from the Court’s refusal to block the Texas voter identification law for the 2014 election, stressing that the restrictive law “risks denying the right to vote to hundreds of thousands of eligible voters.”   Last month, the Supreme Court once again refused to intervene, but allowed the plaintiffs to seek relief again if the Fifth Circuit did not rule or vacate the stay by July 20.  Importantly, the Supreme Court’s unsigned order prevents the Fifth Circuit from simply running out the clock on the thousands of voters whose rights are at stake.   

The key question in Veasey and North Carolina State Conference of the NAACP is whether voter identification laws that, whether intentional or not, make it harder for racial minorities to exercise their right to vote can be squared with the Voting Rights Act’s nationwide prohibition on racial discrimination in voting.   The answer plainly is no. 

Enacted in 1965 and amended in 1982, the Voting Rights Act’s nationwide prohibition on voting discrimination helps to realize the promise of the Fifteenth Amendment that the right to vote shall not be “denied or abridged” on account of race.  Drawn in sweeping terms, the Act forbids intentional discrimination as well as laws that result in a denial of equal political opportunity or perpetuate racial discrimination.  Using its power to enforce the Fifteenth Amendment, Congress sought to ensure that the right to vote is equally enjoyed by all regardless of race.     

The stringent voter identification laws enacted in Texas and North Carolina violate the Voting Rights Act’s promise of equal political opportunity: they threaten to disenfranchise thousands of minority voters, even preventing federal, state, and local government employees and students at state universities from voting with a government-issued photo identification, and make it hard for those without a qualifying identification to obtain one.  Rather than allow voters to go to a polling place or other easily available government office, voters without a qualifying photo identification—who are disproportionately racial minorities—have to travel significant distances, in some cases hundreds of miles, to get one.  This is a system that perpetuates vestiges of discrimination that continue to hamper racial minorities.  

In North Carolina State Conference of the NAACP, the district court judge ignored the law’s discriminatory features because the statute provided a “reasonable impediment” exception that allows a voter to cast a provisional ballot if he or she can present a reasonable excuse for not having a photo identification.  These softening devices are common, but they cannot justify laws that make it harder for racial minorities to vote.   Provisional ballots are subject to challenge, more prone to poll-worker error, and are less likely to be counted than other ballots.  Indeed, North Carolina election officials are currently deciding whether to throw out 1,000 provisional ballots cast in the March presidential primary.  A system that relegates minority voters to provisional ballots does not comport with the Voting Rights Act’s command of equal political opportunity.    

States have significant authority to ensure the integrity and reliability of the electoral process, but they may not accomplish those ends by using means that result in racial discrimination.  The Voting Rights Act does not permit arbitrary, discriminatory state laws that make it harder for racial minorities to exercise their right to vote.  Simply put, there is no “voter identification” exception to the Fifteenth Amendment’s guarantee that the right to vote shall be enjoyed equally by all regardless of race. 

David H. Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted at Text and History

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