John Roberts was right. A lot has changed in the 50 years since President Lyndon B. Johnson signed the Voting Rights Act into law. Voting rights, celebrated on a bipartisan basis back then, have now become a political tug-of-war between the two major political parties.
The Democratic president signed the bill on Aug. 6, 1965, with prominent Republicans such as Senate GOP leader Everett Dirksen and Barry Goldwater looking on with approval. Today, however, the Republican Party is working to enact voter ID laws and other measures to make it more difficult to exercise the supposedly cherished right to vote.
Texas Republicans got their come-uppance last week [Aug. 5] in a decision by the Fifth U.S. Circuit Court of Appeals that found the Lone Star State’s toughest-in-the-nation voter ID law to violate the Voting Rights Act. The law is illegal, according to a unanimous opinion written by the Republican-appointed judge Catharina Haynes, because it has a disproportionate impact on voting rights for African Americans and Hispanics.
The Texas case and a separate pending case in North Carolina are being litigated under a weakened version of the Voting Rights Act thanks to Chief Justice Roberts and his four Republican-appointed colleagues. Roberts spoke for the conservative majority in the 2013 decision, Shelby County v. Holder, that effectively eliminated the law’s most effective provision in blocking anti-voting policies and practices by states with records of racial discrimination in voting.
Roberts explained the court’s decision to block enforcement of the so-called preclearance provision by claiming that blatant discrimination against African Americans in the Deep South states and other covered jurisdictions is gone. With the law having rid the South of the worst forms of racial discrimination, Roberts decided to deep-six the old formula Congress had crafted in 1965 for applying the preclearance provision. Roberts said Congress could rewrite a new formula, but surely Republican obstructionism in Congress has blocked block any rewrite of the law.
Roberts ignored the evidence that Congress had amassed to show the continuing instances of restrictive voting rights practices in the Deep South states. And, as could have been predicted, the states freed of the preclearance provision turned immediately to enacting restrictive laws that the Justice Department would have found to violate the law by “abridging” minority voters’ rights.
After a fierce partisan battle, the Republican-controlled Texas legislature enacted a stringent voter-ID law that required would-be voters to present a government-issued photo identification at the polls. Tellingly, a concealed-carry gun permit satisfied the requirement, but a state university-issued student ID did not.
Civil rights groups, joined later by the Justice Department, sued the state under part of the Voting Rights Act that remained intact. The act’s section 2, as significantly amended in 1982, prohibits any state from imposing “any prerequisite to voting” that “results in a denial or abridgement” of the right to vote “on account of race or color.” The “results” test was adopted after a Supreme Court decision that required proof of intentional discrimination under the provision.
The plaintiffs presented detailed anecdotal and statistical evidence that Texas’s law was indeed having a “disparate impact” on minority voters. In her 147-page opinion, U.S. District Court Judge Nelva Gonzales Ramos agreed with the plaintiffs not only that the law was hurting minority voters but also that the Texas legislature intended to discriminate. Despite the ruling, the Fifth Circuit and the Supreme Court allowed the law to go into effect for the 2014 elections.
Now, the appeals court panel has upheld Ramos’s disparate impact finding but rejected the finding of intentional discrimination. Ramos had relied too much on Texas’s past history of racial discrimination and the accusations from opponents of the law in finding intentional discrimination, the appeals court found. But the panel found that Ramos’s finding of disparate impact were “well supported” and many of the underlying factual findings uncontested by the state.
The appeals court sent the case back to Ramos with an admonition that the parties should “work cooperatively” with the court to fashion a voter ID law that would not hurt minority voters. But Texas officials seem intent on trying to reverse the decision by asking either the full Fifth Circuit or the Supreme Court to hear the case.
Meanwhile, a federal judge in North Carolina is weighing that state’s post-Shelby County voter law. Along with a photo ID requirement, the law also eliminated same-day registration, trimmed early voting, and abolished advance registration for 16- and 17-year olds.
As in Texas, the risk of in-person voter fraud was used to justify the photo ID requirement despite the lack of evidence of actual voter impersonation. As for the other provisions, the GOP-controlled legislature cited only the flimsiest of administrative-convenience justifications in passing the law. Legislators declined to testify in the two-week trial that ended July 29. U.S. District Judge Thomas Schroeder now has the case under advisement.
The Supreme Court gave the green light to voter ID laws in a fractured decision in an Indiana case back in 2008. The new cases flesh out the real impact these laws are having on minority voters. When one or both of these cases reach the Supreme Court, the justices need to give more attention than before to the obstacles that latter day vote suppressionists have devised to limit a cherished American right.