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Texas’ Voter ID Law and Section 2 Litigation September 21, 2013

Posted by Afflatus in History, Politics, Uncategorized.
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13 comments

The story of Texas’ Voter ID law is fascinating. Ever since 1975, Texas was required, under the Voting Rights Act (VRA), to seek approval from the federal government to any changes the state legislature might want to make to its election laws. The purpose of this law was an important one: to ensure that jurisdictions with a history of voting discrimination provide all of its citizens with equal access to the voting booths. Yet in June 2013, the Supreme Court struck down Section 4(b) of the VRA, which stipulated the formula for determining which jurisdictions would be subject to federal “pre-clearance” of proposed voting changes under Section 5 of the VRA. By determining that the Section 4 formula was unconstitutional, Shelby rendered the Section 5 “pre-clearance” regime inapplicable and unenforceable (until Congress updates the formula). So now, Texas may change its voting laws at will.

In 2011, the Texas legislature passed SB 14. It is one of the strictest photo ID laws in the nation, requiring voters to present photo identification from a very limited list before being allowed to vote. The law allows Texans to vote with a Texas concealed handgun license, but not with an ID from a public university or a tribal identification card. (See the Brennan Center’s complaint in its challenge to the law, especially paragraphs 41-45, for how the law will discriminate against minority voters.) In August 2012, in the pre-clearance proceedings, the U.S. District Court in DC rejected the law, finding that it would almost certainly “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” The appeals process in this lawsuit was pending when the Supreme Court this summer struck down portions of the VRA, removing Texas from the pre-clearance requirement. Two days after the Supreme Court ruled on the VRA, it instructed the District Court to dismiss the pending litigation against Texas, allowing the State to do as it pleases.

Equal Justice Under Law?

Voting equality groups like the Brennan Center launched lobbying campaigns, and Congressmembers began imploring their colleagues to update the formula as the Supreme Court suggested Congress should do.

In addition to those advocacy efforts, lawyers at the Department of Justice, the NAACP, MALDEF, and elsewhere, started litigating to enforce the equal opportunity to vote. Though the Supreme Court had eliminated Section 5 pre-clearance as a tool, there was still Section 2.

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or certain minority-language memberships. Section 2 is a creative alternative to Section 5 for enforcing equal access to voting booths, but it is a poor substitute. First, it is an ex post approach rather than ex ante — the voting discrimination must have already occurred. Second, it is far more costly and litigious. Third, the burden of proof is flipped: rather than States being required to prove, under pre-clearance, that a proposed law is nondiscriminatory, plaintiffs are required to prove that the law is discriminatory. These are serious drawbacks, and, while I acknowledge that there were problems with pre-clearance regime, I’m of the opinion that unconscionable voting discrimination is already occurring across America as a result of the change in the regulatory structure and enforcement due to the Supreme Court’s VRA decision.

As stated before, the burden of proof to show that Section 2 has been violated is on the plaintiff, and the threshold is high. Plaintiffs must show that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process. This is a statutory standard deriving from the 1982 reauthorization of the Voting Rights Act.

The Senate Judiciary Committee in 1982 issued a report in an attempt to provide guidance to courts when interpreting whether, in the totality of the circumstances, an election law has violated Section 2 of the Voting Rights Act. The factors the Senate suggests are:

  1. the history of official voting-related discrimination in the state or political subdivision;
  2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
  3. the extent to which the state of political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority-vote requirements, and prohibitions against bullet voting;
  4. the exclusion of members of the minority group from candidate slating processes;
  5. the extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process;
  6. the use of overt or subtle racial appeals in political campaigns; and
  7. the extent to which members of the minority group have been elected to public office in the jurisdiction.

The Judiciary Committee pointed out that this list is neither exclusive nor comprehensive. However, plaintiffs need not prove every factor, or even a majority of them. It’s obvious that there is a tremendous amount of room for courts to interpret this how they please.

Lawsuits raising claims under Section 2 of the Voting Rights Act are few and far between — depending on your definition, there are around 35. In the wake of the Supreme Court decision, the leading Section 2 lawsuits are a group of three related cases challenging the same Texas Voter ID law that the District Court in DC reviewed within the Section 5 procedure, one of which was brought by the U.S. Department of Justice. Read more about the latest of these three cases, NAACP v. Steen, here.

The complaint in NAACP v. Steen is complex because what it seeks to prove — that a voter ID law will disproportionally impact, and thus discriminate unconstitutionally against minorities — is a very difficult proposition to prove in court. It’s also interesting because of the back story of Taxas’ voter ID law in District Court, and because of the Supreme Court’s recent decision on the VRA. As a law student learning about argumentation, it’s interesting to see the strategy adopted by the complaint, and which of the Senate’s factors listed above the complaint chooses to stress.

If you’re familiar with Voter ID laws generally, jumping straight to Paragraph 45 might be a good idea. Paragraph 50, listing the historical voting discrimination perpetrated by the State of Texas, is absolutely appalling.

Ultimately, the complaint alleges that the law has both a discriminatory result and a discriminatory purpose. It also alleges that the law violates the Fourteenth and Fifteenth Amendments of the United States Constitution. It was filed 4 days ago in U.S. District Court for the Southern District of Texas. I’m very curious to watch this unfold!

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