In allowing Texas' voter identification law to go into effect, at least for the November election, the
It is hard to chronicle in a short space the ways in which the Texas law, one of the most discriminatory voting laws in modern history, runs afoul of constitutional norms and reasonable standards of justice. State lawmakers rammed through the measure, jettisoning procedural protections that had been used for generations in the state Legislature. By requiring registered voters to present a certain kind of photo identification card, and by making it difficult for those without such cards to obtain one, the law's Republican architects would ensure that poor voters, or ill ones, or the elderly or blacks or Latinos — all likely Democratic voters — would be disenfranchised, all in the name of preventing a type of voter fraud that does not materially exist.
These lawmakers — and for that matter the U.S. 5th Circuit Court of Appeals and the Supreme Court judges who now have sanctioned the law's implementation for next month's election — were shown mountains of evidence on what the law's discriminatory impact would be on minority communities. Witness after witness testified that the new law amounted to a poll tax on people who had, even in the deepest recesses of Texas, been able for decades to adequately identify themselves before lawfully casting their ballot.
What was Texas' strongest argument against all this evidence? That a state may establish financial and practical hurdles that preclude the poor from voting so long as it — purportedly — does not discriminate against voters by race. For now, this nonsense is the law of the land in Texas.
The six Supreme Court justices who allowed the Texas law to go into effect did not write a single word about the trial judge's extensive findings of intentional discrimination in the law's creation or implementation. The 5th Circuit judges, who overturned that trial judge's ruling, evaded the vital issue by noting, in passing, that those complicated issues could be resolved later, when the federal judiciary evaluated the case on the merits.
The rationale behind these hollow displays of justice is perverse, saying it would be more unfair now to force Texas to go back to the old voter identification laws, the ones that had worked well for decades, than it would be to require voters to get the new identification the law demands.
The swift passage of this Texas law — it was blocked by the Voting Rights Act until the 2013 Supreme Court ruling in Shelby County, then began to be hustled through the state Legislature on the very day that case was decided — is unassailable proof that intentional racial discrimination still exists in these jurisdictions. The trial judge so found, in page after page of documentation, that Texas state officials, emboldened by the Shelby County decision, devised a way to make it harder for blacks and Latinos to have their votes counted. Read her opinion for yourself.
Only three justices on the Supreme Court —
Some stoic commentators have noted that the Supreme Court did not rule on the merits of the Texas law — that the justices may well strike it down next year, or the year after that, when it inevitably comes back to them following a ruling on the merits at the 5th Circuit. I don't buy it. And even if this court ultimately does strike down this odious law, where precisely do the disenfranchised citizens of Texas in the November election go to get their votes back? Nowhere, which is the point of the Texas law and the ultimate effect of the judiciary's shameful tolerance of it.
Andrew Cohen, a legal analyst, is a contributing editor at the Atlantic, a fellow at the Brennan Center for Justice and commentary editor at the Marshall Project, a new criminal justice news organization.