The U.S. Supreme Court on Tuesday declared Section 4 of the Voting Rights Act unconstitutional, a major blow to supporters of oversight of voting laws that they say protects against discrimination.
The ruling in Texas means that now the state's controversial law requiring voters to present photo identification before casting a ballot can be implemented.
Section 4 applies to the formulas that determine which territories are subject to preclearance by Congress under Section 5 of the Voting Rights Act, including Texas. Section 5 is the reason the state’s legislative and congressional district maps, and its voter ID law have been on hold or subject to court battles.
The court ruled in an Alabama case, Shelby County v. Holder, that the formulas used to determine whether voting laws should be reviewed should no longer apply.
"Congress did not use the record it compiled to shape a coverage formula grounded in current conditions," Chief Justice John Roberts wrote in the 5-4 opinion. "It instead re-enacted a formula based on 40-year-old facts having no logical relationship to the present day."
Although the court did not issue an opinion on Section 5, the ruling makes that section null and void, said Michael Li, an attorney and editor of Texas Redistricting blog.
“The chief justice says pretty clearly in his opinion it can no longer be used as a basis for review,” he said. The court took "the easier path,” he added, by not directly addressing Section 5.
SCOTUS Blog writer Amy Howe wrote in her analysis: “Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.”
Attorney General Greg Abbott, who has already challenged the federal government on voter ID, immediately posted a celebratory message on Twitter.
Some Democrats lamented the decision and said it takes Texas back to the era of Jim Crow laws.
"It is an outrageous and nonsensical ruling,“ state Sen. Rodney Ellis, D-Houston, said in a statement. “I don’t know what America those five Supreme Court justices are living in to be able to pretend that deliberate and blatant attempts to disenfranchise people of color at the ballot box do not exist. This is Plessey v. Ferguson for the 21st century and will go down in history as one of the most wrong-headed and out-of-line decisions of the modern era.”
State Rep. Trey Martinez Fischer, D-San Antonio, the chairman of the Mexican American Legislative Caucus said in a statement that despite the setback, all is not lost - yet.
"While we are pleased that the court did not strike down Section 5, we are disappointed that the coverage formula was deemed unconstitutional," he said. "We urge Congress to develop a new coverage formula that complies with the Supreme Court’s ruling in order to place states with a history of discrimination towards minorities under preclearance protections. One needs only to look at the D.C. District Court’s opinion in the Texas redistricting and the photo identification cases to see that discrete protections for minority voters in Texas are still critically necessary. We intend to continue to use these judicial findings of discrimination as our case proceeds."
Li wrote in his analysis that Texas redistricting plans are likely headed for more controversy based on what state leaders are likely to do after today’s decision.
“The Texas Legislature completed the process this weekend of adopting the 2012 interim maps as permanent maps (with just the most minor of changes to the state house map),” he wrote. “Those bills now are on Gov. Perry’s desk, awaiting signature. On the other hand, right now, there is no longer any preclearance bar, and the maps passed by the Texas Legislature back in 2011 are technically legally operative. Governor Perry now has to decide what to do next.”
Section 5 of the Voting Rights Act applies only to places — mostly states, but some counties — where there is a history of discrimination in the application of election laws. It requires those jurisdictions to win permission from a three-judge panel in Washington, D.C., or the U.S. Department of Justice before local laws that affect voting can be changed.
Texas is one of 16 states covered — in full or in part — under Section 5. The case does not affect another part of the law — Section 2 — that prohibits discrimination in election and voting law.
The Texas Secretary of State's office said last week that if SB 14, the voter identification law, was allowed to stand the office would immediately begin working to educate the public about the new voting requirements.
Below is an updated timeline of actions and decisions affecting Texas’ voter ID law:
March 23, 2011: SB 14 passes the Texas House following debate on more than 60 amendments and seven points of order. The House discussed the bill for about 12 hours.
May 9, 2011: The Texas Senate adopts the voter ID conference committee report, which tweaked some of the amendments approved during the House floor debate.
May 16, 2011: The Texas House approves the committee’s report, which removed a provision that would have allowed residences of federally recognized tribal lands to show their tribal IDs to vote. The bill’s House sponsor, Patricia Harless, R-Spring, also introduced an “outside-the-bounds resolution” that included a provision in which free IDs would be made available for the sole purpose of casting a ballot. A provision to exclude people who attest under oath they do not have their photos takes due to religious purposes was also adopted.
July 2011: The Texas secretary of state’s office submits to the Justice Department the required request for preclearance. Because of Texas' history of racial discrimination, Section 5 of the federal Voting Rights Act gives the U.S. Department of Justice or the federal courts the authority to review laws that would affect voter participation. Fifteen other states are subject to the preclearance rule.
August 2011: The National Conference of State Legislators issues a report explaining the differences in Texas’ law compared with others recently passed. The report concludes that only six other states, like Texas, have a strict photo requirement: Georgia, Indiana, Kansas, Wisconsin, South Carolina and Tennessee. Seven states — Alabama, Florida, Hawaii, Idaho, Louisiana, Michigan and South Dakota — ask voters for photo ID, but still allow them to cast a ballot if they don't have a photo ID and can meet other specific criteria. Sixteen other states require voters to show some form of ID, though not necessarily with a photo.
“The law puts Texas in the group with Indiana and Georgia, which I would categorize as fairly strict,” Doug Chapin, an elections expert at the University of Minnesota's Humphrey School of Public Affairs, told the Tribune.
September 2011: Arguing the bill unfairly affects minorities and the elderly, a coalition of civil and rights groups writes the Justice Department, urging denial of the preclearance request. In a letter submitted during the public comment period by the Advancement Project, the American Civil Liberties Union, the Asian American Justice Center and the Southwest Workers Union, the groups allege that instead of actually providing proof the legislation was enacted for non-discriminatory reasons, the state relied simply on its claim that officials did not intend on diluting the voting strength of minority groups.
Perry’s office responds, saying: "Voter ID was enacted to ensure the integrity of the ballot box, protecting the most cherished right we enjoy as citizens and ensuring our elections are fair beyond reproach. By applying to voting the same standard that is commonly applied in cashing a check or applying for a library card, Voter ID can ensure an accurate reflection of the will of the voters.”
Sept. 23, 2011: The DOJ tells the Texas secretary of state’s office that it needs more information to render a decision on whether SB 14 will “have neither the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group."
Specifically, it wants to know details about the estimated 605,600 registered voters who do not currently possess a valid ID. The department asked the state to identify how many members of that group have Spanish surnames, which counties they reside in and an estimated number by race. The DOJ also requested that the state provide the number of registered voters in Texas with a Spanish surname who currently possess a legal form of identification.
Oct. 5, 2011: The state responds and says it does not ask about voters' race when they register. Instead, the Texas secretary of state submitted a list of all the Hispanic surnames in Texas, according to the U.S. Census Bureau. The state also offered to run that list against the list of registered voters to determine how many have Hispanic names, and it offered to use data from the Texas Department of Public Safety, which issues driver's licenses, to assist in obtaining the information.
Nov. 17, 2011: The Justice Department still isn’t satisfied and tells the state it wants more information. The state responds but tells the Tribune, “The state warned that the results would be skewed because DPS didn’t include a specific category for Hispanic drivers until 2009.”
Dec. 13, 2011: U.S. Attorney General Eric Holder tells an audience at the LBJ Library at the University of Texas at Austin that the federal government will fight to ensure minority-voting rights are not eroded by actions of state legislatures. He says the Texas bill will undergo a fair and thorough review.
December 2011: The American Civil Liberties Union files a suit in federal court challenging the state of Wisconsin’s voter ID law. ACLU attorneys allege that bill is less strict than the Texas proposal but will also disenfranchise minority and elderly voters. Nonetheless, a decision on the Wisconsin bill could be used as a guide to determine what other states can and cannot do.
“This lawsuit is the opening act in what will be a long struggle to undo the damage done to the right to vote by strict photo ID laws and other voter suppression measures,” Jon Sherman, an attorney with the ACLU Voting Rights Project, said in a statement. “Across the nation, legislators are robbing countless American citizens of their fundamental right to vote, and in the process, undermining the very legitimacy of our democracy.
Dec. 23, 2011: The Justice Department issues a ruling rejecting South Carolina’s voter ID law.
Jan. 13, 2011: The state of Texas resubmits its request for preclearance, and the Justice Department has 60 days from this date to make a decision. Again, the state warns about the reliability of the data.
“By requesting Spanish surname data, the DOJ’s request acknowledges that the DPS database does not accurately reflect the number of Hispanic voters in Texas who possess a driver’s license or photo identification card,” Keith Ingram, the director of the state’s elections division wrote to the department.
“Nonetheless, in a good faith attempt to satisfy the DOJ’s request, the State has compiled the requested data — despite the State’s reservations about the reliability of that data.”
“The U.S. Supreme Court has already ruled that voter identification laws are constitutional,” Abbott said in a prepared statement. “Texas should be allowed the same authority other states have to protect the integrity of elections. To fast-track that authority, Texas is taking legal action in a D.C. court seeking approval of its voter identification law.”
Abbott says his office will drop the suit if preclearance is granted.
March 7, 2012: The Texas secretary of state tells the Tribune that the state will be ready to have the required outreach and voter-education requirements in place by the May 29 primary if the preclearance request is granted.
“As I understand it, they have three options: They can issue preclearance, they can deny preclearance or they can request more information,” said Rich Parsons, a spokesman for the secretary of state.
Aug. 30, 2012: A three-judge panel in Washington, D.C., rejects Texas' voter ID law. “We find that Texas has failed to make this showing — in fact, record evidence demonstrates that, if implemented, SB 14 will likely have a retrogressive effect,” the U.S. District Court for the District of Columbia judges wrote in their opinion. “Given this, we have no need to consider whether Texas has satisfied section 5’s purpose element. Accordingly we deny the state’s request for a declaratory judgment.”
September 2012: Texas Attorney General Greg Abbott promises to appeal the court’s ruling that rejected the voter ID case. He conceded then, however, that nothing will happen before the November election because the ruling is tied to a lawsuit that also challenges Section 5 of the federal Voting Rights Act.
Nov. 6, 2012: In the general election, Democrats gained seven seats in the Texas House but again failed to win a statewide race. State leadership, as well as Texas’ two U.S. Senate seats, are held by Republicans.
Nov. 9, 2012: The U.S. Supreme Court decides to hear oral arguments in Shelby County v. Holder.
Feb. 26, 2013: The high court hears oral arguments in the case. Shortly after deliberations begin, observers note that the landmark legislation appears in jeopardy. Reporter and analyst Lyle Denniston, reporting for the SCOTUS blog, writes that Section 5’s fate could be left to Justice Anthony Kennedy.
“If Kennedy believes that there is no way to justify any longer that kind of oversight of nine states that have to do the most to obey the 1965 law, that law may well be doomed,” he wrote. “But it also was Kennedy who left the impression that he might be willing to go along with a potential way to short-circuit the case of Shelby County v. Holder, and allow the law to survive for some time more.”
March 2013: A University of Texas/Texas Tribune poll reflected that as time drew nearer to a decision, Texans' views on whether Section 5 was still an essential component of the Voting Rights Act had shifted.
“We found that in the four intervening months, support for the substance of Section 5 had declined while opposition had increased,” pollster James Henson wrote, referring to the previous poll in October. “Overall support for the principle of pre-clearance fell from 51 percent to 44 percent, and opposition increased from 36 percent to 40 percent.”
Henson credits the drop to a number of factors, including the re-election of President Obama in November and an uptick in partisan back and forth leading as a decision drew nearer.
This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/06/25/key-provision-voting-rights-act-stricken-down/.