Dina Rosin (CMC ’20)
Over the last decade, voter identification (ID) laws have been an increasing factor in American electoral politics. By some, voter identification laws are seen as an essential safeguard against voter fraud. Others contend that the laws function mostly to limit the ability of low-income and minority voters to vote by limiting accessibility to the polls. The issue has re-emerged in the national discussion with the February 27, 2017, announcement of the Justice Department to reverse its longstanding opposition to one element of Texas’s “toughest in the country” voter ID laws. The Department has decided to withdraw its argument in last year’s case Texas NAACP v. Steen that Texas had discriminatory intent in the state’s voter ID laws. This change in the development of voter ID laws may affect not only the political results of elections but also has the potential to disenfranchise voters before the courts have a chance to intervene.
Congress passed the Voting Rights Act of 1965 to guarantee equal access for all to the ballot box. The act was intended to address parts of the country, specifically the South, where laws acted as obstacles to voting for African-Americans and other minority groups. In general, the act is considered extremely successful, as voting access has increased dramatically since the enactment of this law. States which had a particularly poor record were forced to obtain “pre-clearance” before making any changes in their voting laws, meaning the Justice Department’s administrators determined whether any new laws would restrict voting.
These issues have come to a head with new voter ID laws in Texas. While many states have had various identification laws for decades, most did not require that identification be government issued or have a photograph. In 2011, Texas tightened its voter ID laws to only allow certain forms of state-issued IDs, such as gun permits or drivers’ licenses. These laws rule out others, such as college IDs. There were arguments that these decisions were politically driven, as gun owners tend to vote with conservative leanings and college students are more likely to vote with liberal leanings. In any event, Texas fell under the “pre-clearance” provision of the Voting Rights Act, and the Justice Department under President Obama filed suit to block enactment of this law. The administration argued that the law placed a disproportionate and undue burden on minority voters.
During the time that has passed since, a number of events have transpired to change perspectives on the legality of the approach in Texas. First, the state of Texas successfully sued the Justice Department. Texas argued that the Voting Rights Act had fulfilled its purposes and that the “pre-clearance” provisions were not meant to exist into perpetuity but only as long as the problems persisted. In 2013, the Supreme Court in Shelby County v. Holder sided with Texas in a 5-4 decision, thus effectively eliminating “pre-clearance.” This does not mean that these states now had the ability to pass any voting laws that they want, only that new laws do not require permission from the federal authorities in advance.
The February 27th announcement concerning the Texas NAACP v. Steen case may affect Texas’ “pre-clearance” status. The Justice Department under President Trump and Secretary Jeff Sessions has announced that it will no longer argue that the laws have the “intent” to restrict voting, and will only remain committed to the suit with regard to the discriminatory “effect.” This is more than a semantic distinction. If the court finds that the Texas legislature intended to restrict voting, it may re-establish the federal approval for Texas voter ID laws that was eliminated in the Shelby County v. Holder decision. This would make it harder for other states to follow suit with similar laws. Additionally, this would make the courts ultimately responsible for protecting voter rights.
The Justice Department’s altered stance on this matter does not end the controversy over these laws, but only deprives the claimants from the support of the Justice Department in making their case for discriminatory intent. The state legislature in Texas is attempting to write a revised voting identification law to reduce any discriminatory effects of the laws to restrict voting. This would, in theory, bring the law more in line with the stated goal of limiting voter fraud. Still, many on the left argue that voter fraud is vanishingly rare and the true effect of the laws is simply to create a burden to voting for otherwise eligible voters. If the court is unable to find that the Texas law had discriminatory intent, it is likely that other states may introduce similar voter ID laws in the future.