Voting Rights Act, it's been nice knowing you

The U.S. Supreme Court recently decided to eviscerate a crucial part of the 1965 Voting Rights Act (VRA). The VRA was renewed four times in 1970, 1975, 1982 and most recently in 2006 when it passed the House of Representatives 390-33 and the Senate 98-0. Yet, our Supreme Court saw fit to strip it away. You won’t be surprised to learn that I think it was a terrible decision.

First, some background. Prior to the VRA, states could and did enact a variety of discriminatory tactics such as imposing poll taxes or literacy tests. In case you think a literacy test is a reasonable requirement for a voter, here are some examples of tests administered selectively to black applicants in Alabama.

• Naming all sixty-seven county judges in the state.
• Naming the date on which Oklahoma was admitted to the Union (remember this test was for Alabama residents).
• Declaring how many bubbles are in a bar of soap.

The VRA prohibited these kinds of schemes. 

So what exactly did the Supreme Court decide? Their ruling was actually devastatingly pointed, eliminating only one critical section of the VRA.

Section 4 of the VRA provides a formula for deciding which regions of the country require closer scrutiny when it comes to election laws. Districts with a history of discriminatory voting practices are put on a list. Section 5 of the VRA states that any districts that fall under Section 4 jurisdiction cannot change their voting laws without pre-clearance from the U.S. District Court. If a state fitting the Section 4 criteria wanted to suspend early voting, require voter ID or change voting districts, they had to submit those changes for Federal approval before enacting them.

In Shelby County v. Holder, the Supreme Court struck down Section 4, claiming that the rules for determining which counties are subject to preclearance were outdated. Note that Section 5 still holds. That is, there is still a provision for requiring some counties to get pre-clearance before changing their election laws, it’s just that there are currently no counties on that list. Of course, Congress could easily fix this problem. They just need to pass new laws establishing which regions should have pre-clearance. Laugh along with me.

Here’s a little sample of the ‘logic’ the five Justices (Roberts, Scalia, Kennedy, Thomas and Alito) used to overturn Section 4.

Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. 

This reminds me of Rand Paul claiming that we no longer need a Clean Air Act because, thanks to that Act, the air is now clean.

Leaving aside the ridiculousness of the argument, were the Justices correct in stating that “40 year-old facts [have] no logical relationship to the present day"? Tell that to the states chomping at the bit to push through new voting laws. As of last month, six states required photo ID to vote. Thanks to the Supreme Court ruling, that number will double by 2014.

Like literacy tests, requiring ID to vote doesn’t sound that bad until you dig a little deeper. Let's look at an example.

The day of the Supreme Court ruling, Texas announced that they would immediately pass the voter ID requirements that had previously been stalled by the VRA. Among the acceptable types of ID are driver's licenses, passports, personal ID cards, election certificates and even handgun licenses, if issued by the Texas Department of Public Safety (DPS), but not school or college ID.

Two things about this. First, while a non-driving voter ID card is often free, the certificates you'll need to get that ID are not free. Driver’s licenses, birth certificates and passports all cost money. Just to be clear, it is still illegal to impose a poll tax on prospective voters.

Second, the people needing these voter IDs do not have driver's licenses and presumably cannot drive. They have to find a way to get to an office that might be many miles away and is only open weekdays from 8-5. Even collecting the paperwork required to get a voter ID can be a quagmire. Before the 1970s, many rural people were born at home with the assistance of a midwife who didn’t issue a complete (or sometimes any) birth certificate. Sorting issues like this out can take a lot of time and visits to many far flung offices.

But really, how many people could voter ID laws impact? Doesn’t nearly everyone have some type of acceptable ID? I'm glad you asked.

According to the ACLU, 

• 11% of US citizens – or more than 21 million Americans -- do not have government-issued photo identification.
• As many as 25% of African American citizens of voting age do not have a government-issued photo ID, compared to only 8% of their white counterparts.
• 18% of Americans over the age of 65 (or 6 million senior citizens) do not have a government-issued photo ID.

In Texas, nearly 800,000 registered voters do not have a valid driver's license, 38% of them Hispanic. 

By the way, in case anyone was laboring under the delusion that these laws, while unfair, do serve a purpose, consider the results of recent study:

In-person voter impersonation on Election Day, which prompted 37 state legislatures to enact or consider tough voter ID laws, is virtually non-existent. Only 10 such cases over more than a decade were reported.

In Texas alone, 800,000 people could be disenfranchised to prevent imaginary crimes.

Requiring voter ID is just one type of discriminatory tactic that states with Republican legislators and governors are jumping to enact. States can and do redraw voting districts to favor one party, decrease or eliminate early or extended voting opportunities, reduce the number of polling places in minority districts in the hopes that long lines will discourage voters, and make it harder to register new voters. All of these practices were subject to VRA pre-clearance rules before the Supreme Court's ruling.

Thanks to our Supreme Court, it's now open season on voting rights.