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.