Today we celebrate the 50th anniversary of the signing of the Voting Rights Act, a landmark civil rights law that gave meaning to the promise of equal access to the ballot. And yesterday, the eve of this commemoration, proved to be a big day for voters in Texas. The Fifth Circuit Court of Appeals ruled the state’s strict photo ID law violates Section 2 of the Voting Rights Act because it discriminates against African-American and Latino voters. But this victory is bittersweet, for even as we celebrate the Act’s birthday, court battles in Texas and elsewhere illustrate that federal voting protections are weaker than they have been in half a century.Texas’s ID law, passed in 2011, is the strictest in the country. To cast a ballot, voters must show one of only a small number of government-issued photo IDs. Those who cannot show such an ID do not get to cast a ballot that counts — period. Many forms of ID that both contain a photograph and are government-issued, such as student IDs from public Texas colleges and government employee IDs, are not accepted under the law. And, unlike in some other states, there is no exception for voters who cannot obtain ID because of poverty, onerous travel burdens, or other obstacles.
The appellate court’s decision — issued by a unanimous three-judge panel and written by a George W. Bush appointee — highlighted evidence presented at trial that more than 600,000 registered voters in Texas lack the ID needed to vote. And the racial makeup of these voters is highly relevant: African-American and Latino voters are two to four times more likely to lack ID when compared to white voters. The opinion confirms this vast chasm in ID possession — alongside Texas’s shameful history of racial discrimination at the ballot box and beyond, and the ongoing socioeconomic impacts of such discrimination — is not allowable under Section 2 of the Voting Rights Act, which prohibits voting laws that discriminate on the basis of race.
While we should breathe a sigh of relief that our country’s laws are still strong enough to detect and demolish a racially discriminatory law, it is nevertheless indisputable that federal voting protections in America are moving in the wrong direction. The Voting Rights Act is rightly honored for being inspirational, but is truly most laudable for being effective.
The primary reason for the Act’s success at weeding out racial discrimination in voting was Section 5, which required jurisdictions with a particularly egregious history of discrimination in voting to get changes to their election laws pre-cleared by the Department of Justice or a federal court before they could go into effect. Under Section 5, laws that would have made it harder for minorities to vote were stopped before they were enacted.This system worked remarkably well for nearly 48 years until, in 2013, the Supreme Court issued a 5-4 decision, in Shelby County v. Holder, gutting Section 5. The preclearance regime that had been the Act’s crown jewel was a victim of its own success: Because discriminatory laws were stopped before they could go into effect, the Shelby County majority looked around, saw fewer discriminatory voting laws, and declared the problem fixed.
As yesterday’s Fifth Circuit opinion makes clear, the problem is not fixed. And now, post-Shelby County, it is harder than ever to fight back against discriminatory laws. Even worse, yesterday was not the first, or even the second, time a federal court has found Texas’s strict ID law discriminates against minority voters.
In 2012, a court used Section 5 to prevent Texas from implementing the law in the first place, precisely because of the impact it would have on African Americans and Latinos. But, mere hours after the Shelby County decision, Texas announced it would go forward with its photo ID requirement, placing the burden on affected Texans to mount a challenge to a policy already deemed discriminatory.
So, while yesterday’s opinion should be celebrated, the victory is marred because it took a second lawsuit, an eight-day trial, and two more federal court decisions to arrive at the same place we were three years ago: an opinion holding that Texas’s requirement violates federal law by making it harder for minorities to vote. And, in the time it took to arrive at this conclusion for a third time, multiple elections have been held with the ID law in place, with countless Texans losing their vote in those elections.
Lack of equal access to the ballot is not a 20th-century problem that has been solved. As the restrictive laws coming out of Texas, North Carolina, and many other states make clear, federal voting protections are still very much needed today. Congress must take action to restore the Voting Rights Act so Americans are not forced to bring suit just to protect the rights promised to them.
Jennifer L. Clark serves as counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.