In August, a panel of three federal judges relied upon Section 5 to force Florida to better protect the rights of early voters, many of whom are minority voters. That same month, in Texas v. Holder, a panel of three federal judges relied upon Section 5 of the Voting Rights Act to unanimously strike down Texas' restrictive voter identification law. In doing so, the judges noted how poorly Texas lawmakers had acted to provide meaningfully access to state offices where they could procure the new photo identification cards:
these burdens will fall most heavily on the poor. Like any fixed cost, the $22
(minimum) EIC applicants will have to pay to obtain prerequisite documentation
weighs disproportionately on those living in poverty. Moreover, while a 200 to
250 mile trip to and from a DPS office would be a heavy burden for any
prospective voter, such a journey would be especially daunting for the working
poor. Poorer citizens, especially those working for hourly wages, will likely
be less able to take time off work to travel to a DPS office -- a problem
exacerbated by the fact that wait times in DPS offices can be as long as three
hours during busy months of the year. This concern is especially serious given
that none of Texas's DPS offices are
open on weekends or past 6:00 PM, eliminating for many working people the
option of obtaining an EIC on their own time.
law that forces poorer citizens to choose between their wages and their
franchise unquestionably denies or abridges their right to vote. The same is
true when a law imposes an implicit fee for the privilege of casting a ballot,
like the $22 many would-be voters who lack the required underlying
documentation will have to pay to obtain an EIC. "[W]ealth or fee paying has .
. . no relation to voting qualifications; the right to vote is too precious,
too fundamental to be so burdened or conditioned." Harper, 383 U.S. at 670. To
be sure, a section 5 case cannot turn on wealth alone. In Texas, however, the
poor are disproportionately racial minorities. According to undisputed U.S.
Census data, the poverty rate in Texas is 25.8% for Hispanics and 23.3% for
African Americans, compared to just 8.8% for whites [citations omitted by me].
Then, this week, in South Carolina v. Holder, another panel of federal judges blocked South Carolina's restrictive new voter law from taking effect in this election cycle. The judges, including two Republican appointees, declared that the law could stand in future elections only if local election officials interpreted it in a way which permitted registered voters there to cast a ballot without the state photo identification cards required by the measure. Here is what U.S. District Judge John D. Bates, an appointee of George W. Bush, said about the vital role Section 5 played in ensuring a measure of fairness for South Carolina voters:
Which brings me to my
second observation -- one cannot doubt the vital function that Section 5 of the
Voting Rights Act has played here. Without the review process under the Voting Rights
Act, South Carolina's voter photo ID law certainly would have been more
have commented that they were seeking to structure a law that could be
precleared. See Trial Tr. 104:18-21 (Aug. 28, 2012) (Harrell) ("I was
very aware at the time that we were doing this that whatever we would have to
do would have to be subject to the Voting Rights Act because that would be the
basis for the Department of Justice preclearing the bill for us."); id. at
105:15-18 ("[I] ask[ed] the staff who drafted the bill for me to please make
sure that we are passing a bill that will withstand constitutional muster and
get through DOJ or through this court."); Trial Tr. 108:23-25 (Aug. 27, 2012)
(Campsen) (agreeing that he was "interested in what voter ID legislation had
been precleared" in drafting R54); id. at 148:10-15 (discussing senators' statement
that "[t]he responsible thing to do was to fix [the bill] so that it would not
fail in the courts or get tripped up by the Voting Rights Act"); Trial Tr.
141:9-12 (Aug. 28, 2012) (McConnell) (discussing his efforts on behalf of a
bill that "had a better chance of getting preclearance"); id. at
182:18-20 (on the Senate floor "[t]here was discussion about" how "to craft a
bill that would comply with the voting rights amendment").
The key ameliorative
provisions were added during that legislative process and were shaped by the
need for pre-clearance. And the evolving interpretations of these key
provisions of Act R54, particularly the reasonable impediment provision,
subsequently presented to this Court were driven by South Carolina officials'
efforts to satisfy the requirements of the Voting Rights Act.
recognized the importance of such a deterrent effect. See H.R. Rep. No. 109-478,
at 24 (2006) (finding that "Section 5 encourage[s] the legislature to ensure
that any voting changes would not have a discriminatory effect on minority
voters," and "that the existence of Section 5 deterred covered jurisdictions
from even attempting to enact discriminatory voting changes" [internal
quotation marks omitted]); S. Rep. No. 109-295, at 11 (2006) (finding "some
reason to believe that without the Voting Rights Act's deterrent effect on potential
misconduct" racial disparities in voting "might be considerably worse").
The Section 5 process
here did not force South Carolina to jump through unnecessary hoops. Rather,
the history of Act R54 demonstrates the continuing utility of Section 5 of the
Voting Rights Act in deterring problematic, and hence encouraging
non-discriminatory, changes in state and local voting laws.
The legal argument for striking down Section 5 of the Voting Rights Act has always been a dubious one, especially for conservative jurists (like Clarence Thomas) who preach deference to legislative choices except when they disagree with those choices. But now the factual argument for striking down the Act, the argument Justice Thomas infamously made in 2009, has even less evidentiary support than it did when he spoke out. For that, Justice Thomas and his fellow conservatives have only themselves, and their radical new voting laws, to blame.