by By Billy Corriher
When Texans vote in the upcoming presidential primary, the federal government wants to ensure they won’t be turned away from the polls for lacking the proper identification. The U.S. Department of Justice (DOJ) on Monday issued a letter rejecting the state’s new voter ID law. DOJ argued the law would disenfranchise hundreds of thousands of minority voters. The letter said the statute cannot be “pre-cleared” under Section 5 of the Civil Rights Act, because it has the effect of denying minorities the right to vote.
The Texas law requires voters to present a drivers license, a state identification card, or a concealed-weapon permit. Neither a student ID, federal government employee ID, tribal ID, nor a veterans ID is acceptable. DOJ analyzed data provided by Texas to determine that the law would disproportionately impact Latino voters: “According to the state’s own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification.”
Section 5 requires jurisdictions with a history of voter discrimination obtain “preclearance” from DOJ or the D.C. District Court before implementing any change in voting. States cannot implement changes that have the “purpose” or “effect” of disenfranchising minorities or voters who do not speak English.
Eight states implemented new or stricter voter ID laws last year, and legislation is pending in 32 states. Florida has implemented shorter early voting periods and tougher registration requirements. With scant evidence to back them up, Republican supporters warn of voter fraud. Civil rights advocates say these laws will disproportionately impact students and minorities – two groups that heavily favored President Obama in the 2008 election.
Some claim DOJ’s decision is political, that it is designed to help Obama in November. This argument implies either that the president aims to engage in massive voter fraud to win Texas, or that the voter ID law would hurt Obama at the polls (by disenfranchising his supporters). These charges of politicization are hypocritical.
The lack of voter fraud leaves one explanation: these laws are intended to disadvantage certain voters. A Wisconsin state court judge recently ruled unconstitutional his state’s new voter ID law: “Voter fraud is no more poisonous to our democracy than voter suppression . . . . Indeed they are two heads on the same monster.” That the move was a political one, not a racial one, does not excuse the law. The Texas state legislature may have only meant to disenfranchise Democrats, but it also disenfranchised groups protected by the Civil Rights Act. The D.C. District Court will ultimately rule on the preclearance issue.
The Supreme Court may still curtail the scope of Section 5. In 2009, the Court declined to rule on the constitutionality of preclearance, while noting “serious” concerns. The Court described preclearance as an infringement on state authority over voting. While this was justified in 1965, the Court noted that minorities’ voting rates have since improved dramatically. The Court said some of the preclearance provisions are based on outdated information.
Though it recently reauthorized the statute, Congress must ensure the Act is addressing current problems. The political branches should not leave the job of defining voting rights to the Court. These new voting laws illustrate why preclearance is still relevant.