by Michael Handley (Updated Thursday June 27, 2013, 3:10 p.m.)
On June 25, 2013, the Supreme Court struck down a part of the Voting Rights Act that required Texas and other states to get a federal DOJ or District Court approval before implementing any election law change.
The Court struck down Section 4 of the Voting Rights Act, the provision of the landmark civil rights law that designates which parts of the country must have changes to their voting laws cleared by the U.S. Department of Justice or a federal court. With Section 4 now invalidated, the states listed in Section 4, which includes Texas, are no longer compelled to comply with Section 5 preclearance requirements. Those states are now free to enforce laws previously blocked under Section 5 regulations.
On August 30, 2012, a federal DC Court three-judge panel blocked Texas' new
SB 14 Voter Photo I.D. Law, under provisions of the Voting Rights Act struck down by the Supreme Court. The three-judge panel found that SB 14 imposed "strict, unforgiving burdens on the poor" and noted that racial minorities in
Texas are more likely to live in poverty.
The Department of Justice
pointed out that hundreds of thousands of registered voters in Texas were without the necessary identification and were thus at risk of disenfranchisement. A disproportionate number were Latino.
Justice Ruth Bader Ginsburg, dissenting from the June 25th SCOTUS ruling, highlighted a paradox at the heart of the majority opinion: “In the court’s view, the very success of Section 5 [and 4] of the Voting Rights Act demands its dormancy”.
Ginsburg, supported by justices Sephen Breyer, Sonia Sotomayor and Elena Kagan, said it is the very success of pre-clearance that underlines why it must be preserved. “The Voting Rights Act has worked to combat voting discrimination where other remedies have been tried and failed,” she writes.
In her dissent, Ginsburg lists some of the insidious changes to voting laws that could now creep back into the American electoral landscape. Under pre-clearance, states including Texas have been blocked from racial gerrymandering by redrawing electoral boundaries in an attempt to create segregated legislative districts.
Opponents of pre-clearance under Sections 4 and 5 of the Voting Rights Act say that Section 2 will be sufficient on its own as a safeguard against future discrimination. But the burden of challenging new electoral laws now shifts from the federal government to the individual voter.
Pamela Karlan, a professor at Stanford law school who had previously filed an amicus brief on behalf of the bipartisan House Judiciary Committee leadership supporting the constitutionality of Section 5 of the Voting Rights Act, said that by striking down pre-clearance the supreme court had “shifted the burden away from the perpetrators of discrimination and onto the shoulders of the victims of discrimination. Local minority voters will now have to find a lawyer and go to court to argue voting rights infringement under Section 2 – and for many that will be very difficult.”
Section 2 of the Voting Rights Act forbids states from enacting voting restrictions that have a greater impact on minority voters than on others. There is, however, a catch. Samuel Bagenstos, who was until recently the number two official in the U.S. Dept. of Justice Civil Rights Division, has said that the DOJ can't bring a Section 2 lawsuit claiming voter disenfranchisement, until after voters have been disenfranchised:
“In order to bring a Section 2 case, you’d have to as a practical matter 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.
Any Section 2 case would almost certainly have to wait until after the next election, since the evidence that the laws were discriminatory “can only be gathered during an election that takes place when the law is enacted.”
Minority Leader of the House Rep. Nancy Pelosi (D-CA)
said Wednesday that Congressional Democrats are planning new legislation to render ineffective Chief Justice Roberts Court's decision on the Voting Rights Act. But many question whether such legislation has any chance of passing in the Republican controlled House.
Shortly after the Supreme Court read its decision striking down Section 4 of the Voting Rights Act, Texas Attorney General Greg Abbott tweeted that nothing now stands in the way of the state enforcing its controversial SB 14 voter photo ID law.
“With today’s decision, the State’s voter ID law will take effect immediately,” Abbott announced. “Redistricting maps [as originally] passed by the Legislature [in the 2011 legislative session] may also take effect without approval from the federal
government.”
On Thursday, June 27, 2013 the Supreme Court followed up its Tuesday, June 25th, ruling on Section 4 of the VRA, officially vacating and kicking back the DC Court three-judge panel's August 2012 ruling that blocked Texas' voter photo I.D. law. SCOTUS' action was a predictable result of its ruling, effectively ending the federal government's oversight of elections in Texas and other states with a history of discrimination in voting. The justices ordered lower courts to reconsider, in light of Tuesday's ruling, the status of previous low court rulings on appeal to SCOTUS, as was Texas' I.D. law. Legal experts remain divided on what the Supreme Court's rulings mean for the election laws that had been blocked under Section 5 review, and it could be weeks before the district courts weigh in. In the mean time, Texas and other states listed in Section 4 are
not waiting to start enforcement of those laws.
U.S. Rep. Marc Veasey (D - Fort Worth) joined seven others Wednesday in filing a federal lawsuit to keep Texas from enforcing its voter ID law. Veasey, who represents the 33rd Congressional District, one of four districts created statewide during the latest redistricting battle, filed the papers in Corpus Christi federal court saying that under Section 2 of the VRA, SB 14, which requires voters to present a government-issued photo I.D. at polling places, will unconstitutionally deprive thousands of minorities of their right to vote and make re-election campaigns more expensive.
At his
Redistricting Blog, Michael Li explains how Sections 2 and 3 of the Voting Rights Act could possibly provide some of the protections afforded under Sections 4 and 5.
Originally set to go into effect on January 1, 2012, the Texas Photo I.D. Law (
SB 14) requires voters to present one of a limited selection of
government issued photo I.D. to election Judges in order to qualify to
vote. The accepted forms of currently dated photo identification include:
- Texas DPS issued Driver’s License or Personal Identification Card;
- Texas DPS issued Election Identification Certificate (EIC);
- US passport;
- US military ID;
- Texas concealed weapons license; or
- US citizenship papers containing a photo.
For those who do not have an unexpired government issued photo I.D., the law contains a provision that requires the Texas Driver's License office to issue special "Election Identification Certificates" free of charge to citizens. Of course, a person seeking a free EIC at the Driver's License Office must present a state certified birth certificate and other I.D.'s. Obtaining those identity documents, for those who don't already hold them, can be costly to a near impossibility. (see -
Texas A Step Closer To Federal Real I.D. Act and
War On Terror "Real I.D." Driver's License Federal Law Meets State Voter Photo I.D.)
The Texas Department of Public Safety announced shortly after the Supreme
Court read its decision that starting Thursday, June 27, 2013, Texas driver license offices will begin issuing free Election Identification Certificates to anyone who doesn't already have another of the government issued photo I.D. documents. (DPS Webpage for EIC Info.)
Under the 2011 state law creating one of the state’s most strict voter I.D. laws, the certificates are free and valid for six years - which means they must be periodically renewed.
However, there is no expiration date of an EIC for citizens 70 years of age or older.
To qualify for any Texas Department of Public Safety issued photo I.D., an applicant must give proof of U.S. citizenship and Texas residency by presenting identity documents. These identity documents include an unexpired Texas driver license, Texas Identification card, or U.S. Passport book or card. For most who don't have one of those primary identification documents, already, they must present an original or certified copy of a birth certificate issued by their birth state's Bureau of Vital Statistics, along with another identity document listed under a menu of documents. This menu of documents includes a Voter Registration Card.
Frequently Asked Questions: