Hours after the Supreme Court in 2013 struck down a core part of the Voting Rights Act, Texas put into effect a law that threatened to disenfranchise more than 600,000 registered voters.
The Justice Department had blocked the law two years earlier as discriminatory, and a three-judge panel in Washington agreed that it put “unforgiving burdens on the poor.” Texans who lacked driver’s licenses had to take certified copies of their birth certificates to motor-vehicle offices to obtain new photo ID cards, sometimes a trip of more than 100 miles.
Even though the high court’s ruling ended the department’s ability to prevent the law from taking effect, a federal district court judge in 2014 struck it down for discriminating against minorities. Last year, a U.S. 5th Circuit Court of Appeals panel upheld that decision in a 3-0 opinion, written by a judge appointed by President George W. Bush.
Yet the Texas law still stands.
Seemingly untouched by numerous legal defeats, the voter ID law serves as an example of how difficult it can be to halt potentially discriminatory voting rules in the aftermath of the Supreme Court’s 2013 decision in Shelby County vs. Holder.
“This is a perfect illustration of what we lost,” said Jon Greenbaum, chief counsel for the Lawyers Committee for Civil Rights Under Law. “We have seven judges who looked at this and all found a violation. Yet the law is still in effect.”
The Supreme Court has refused to intervene so far. On the eve of the 2014 elections, the justices by a 6-3 vote declined to block enforcement of the photo ID rule pending the state’s appeal, as did the 5th Circuit, despite its own panel’s ruling.
Now, as the nation heads toward the first presidential election since the high court struck down Section 5 of the Voting Rights Act, opponents are again asking the court to put the Texas law on hold. A decision is expected in the coming week.
Section 5 of the 1965 landmark voting law had barred Texas and other states with checkered histories on voting rights from changing their election rules without first winning approval from the Justice Department or from a federal court in Washington.
Since that provision of the act was struck down, eight of the nine states that were subject to federal “preclearance” have adopted or enforced laws or restrictions that altered voting procedures in ways that have made it more difficult for poor, minority and mostly Democratic voters, voting rights groups say.
“We are seeing stark evidence of a resurgence in voting discrimination,” said Kristen Clarke, president of the Lawyers Committee.
In North Carolina, the state cut back on early voting and ended same-day registration. Voters in Phoenix spent hours waiting in line to vote in late March after county officials reduced the number of polling places from more than 200 to 60. Alabama adopted a new photo ID law similar to the one in Texas and then announced that, for budget reasons, it was closing dozens of motor vehicle offices in rural counties.
The Justice Department has filed suit against three such laws, one in North Carolina and two in Texas, including the photo ID law.
“While the Shelby County decision has certainly made it more difficult to ensure that new practices do not unlawfully discriminate against eligible voters, our commitment to protecting the rights of voters has not wavered and we continue to use every tool at our disposal to work to protect the voting rights of every eligible American,” said Vanita Gupta, head of the department’s civil rights division.
This preclearance provision was often described as strong medicine for an especially virulent disease. The Constitution was amended after the Civil War to forbid racial discrimination in voting. But that command proved ineffective in the South as long as state lawmakers could change rules and local officials controlled the voting rolls.
Texas proved especially inventive in devising ways to prevent blacks from participating in elections, voting rights advocates say. Four times during the 20th century, the Supreme Court struck down Texas laws that it found barred blacks from voting in primary elections.
The Voting Rights Act was seen by many as the most effective civil rights measure in the nation’s history. And in 2006 the House and Senate, in a rare bipartisan move, extended the full law for another 25 years.
But Chief Justice John G. Roberts Jr., who had been a critic of the measure since his days as a young Reagan administration lawyer, had other ideas. “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Roberts said in the 5-4 decision that held the special scrutiny for the South was outdated. In dissent, Justice Ruth Bader Ginsburg compared the majority’s logic to “throwing away your umbrella in a rainstorm because you are not getting wet.”
It was the first time since the 19th century that the high court had voided a major civil rights law involving race, and voting rights lawyers predicted trouble. “We warned the court this was about protecting real voters from real discrimination,” said Ryan Haygood, formerly a voting rights lawyer for the NAACP Legal Defense Fund. “Maybe if you live a considerable distance from where the discrimination is most intense, you don’t understand it.”
Even before 2013, Texas had required registered voters to show some proof of their identity before casting a ballot. In 2011, the Republican-controlled Legislature decided to sharply restrict the what type of proof would suffice. A Texas driver’s license, a U.S. passport, a concealed weapons permit and a U.S. military identification card qualified, but not a photo ID of a federal, state or local government employee or of a student at a state university.
After the high court decision, the Justice Department and a coalition of civil rights groups filed suit in a federal court in Texas under Section 2 of the Voting Rights Act, which also forbids measures that discriminate against minorities.
After a two-week trial, U.S. District Judge Nelva Gonzales Ramos, an Obama appointee, struck down the Texas law in October 2014. In a 147-page opinion, she described how Texas lawmakers worried about the growing minority population in the state and deliberately set out to limit voting by Latinos and African Americans. While the state had virtually no evidence of people fraudulently posing as someone else to cast ballots, the strict photo ID would prevent or discourage hundreds of thousands of legal voters from casting ballots, she said.
But shortly after she ruled, the 5th Circuit Court in New Orleans, at the behest of Texas state lawyers, lifted her order and permitted the law to take effect in time for the November election.
No one knows how many Texas voters might have been deterred, but the state reported a significant drop in turnout. In 2010, 38% of its registered voters cast ballots in the governor’s race. Four years later, with the new law in effect, 33.7% cast a vote for governor.
With the fall elections approaching, civil rights lawyers are trying again at the Supreme Court. They filed an emergency appeal in late March with Justice Clarence Thomas and asked him and the full court to put the Texas law on hold for this year’s election.
Texas state lawyers call the new ID requirement a “minor inconvenience” for voters, and they are urging the court to dismiss the appeal. They said the new law affects only a “limited fraction of qualified Texas voters,” and the challengers “did not prove it will be prevent any person” from casting a ballot.
Voting rights groups see the Supreme Court as their last chance to stop the law before November. “We felt we had to go to the court one more time on this,” said Gerry Hebert, a veteran voting rights lawyer with the Campaign Legal Center. “We are talking about hundreds of thousands of people, and this is the most fundamental right we have as Americans.”