Voting laws that intentionally discriminate on the basis of race are illegal. But these days, very few public officials are foolish enough to admit publicly that that’s what they’re doing. That reality has often made it difficult for opponents of voting restrictions to prove deliberate racial bias.
An ingenious new study by scholars at the University of Southern California, written up by the Washington Post, has found a way to get around that problem — and it suggests that “discriminatory intent underlies legislative support for voter identification laws.” That’s a finding that could have implications for legal efforts to challenge some of the most restrictive voting laws.
Here’s how the study worked: Just before the 2012 election, the study’s authors sent emails to 1,871 state legislators in 14 states, reading as follows:
Hello (Representative/Senator NAME),
My name is (voter NAME) and I have heard a lot in the news lately about identification being required at the polls. I do not have a driver’s license. Can I still vote in November? Thank you for your help.
Some of the legislators received emails in which the sender used the name “Jacob Smith,” while others received emails from “Santiago Rodriguez.” And within each of those two groups, half received emails in English, and half in Spanish.
A simple “yes” would have sufficed in response to the email, since no state allows only a driver’s license as proof of ID. But here’s what the researchers found: Among supporters of voter ID, 44% of legislators responded to “Jacob Smith,” while just 27% responded to “Santiago Rodriguez.” Among ID opponents, the gap was much smaller: 50%, compared to 43%. The larger gap among ID supporters held true whether they received emails in English or in Spanish.
Smartly, the study doesn’t attempt to disentangle race and partisanship. It’s true that the pro-ID lawmakers who didn’t respond to “Santiago Rodriguez” might have been motivated by partisanship, not anti-Hispanic animus. After all, nearly all of these lawmakers are Republicans, and Hispanics lean Democratic. So why help someone vote for your opponent? But in terms of how the law works, it doesn’t matter: Laws that are designed to reduce the voting power of one race are considered intentionally discriminatory even if the underlying motive is partisan.
Here’s why this study could matter for the various legal challenges to voting restrictions:
As things stand, plaintiffs don’t actually need to prove deliberate racial discrimination to get a voting law struck down under the Voting Rights Act, even in its weakened form. It’s enough to show that the law has a disproportionate impact on a certain race, if they can also show that that’s because of a history of racial discrimination. For instance, a federal judge recently struck down Wisconsin’s voter ID law, ruling that it disproportionately affected blacks. The judge, Lynn Adelman, found that blacks are more likely than whites to lack ID, and that this difference in ID possession is because of how blacks were socially and economically marginalized over decades.
But not every judge is as willing as Adelman to consider those historical factors. And there’s no doubt that being able to prove intentional discrimination gives plaintiffs a huge boost. That’s why lawyers challenging Texas’s voter ID law and North Carolina’s sweeping voting law are demanding to see emails from the lawmakers who drew up the measures — they hope to find evidence of overt racial bias.
Even more important, conservatives are working aggressively to narrow the Voting Rights Act, arguing that it should bar only deliberate discrimination, not the kind of discriminatory impact combined with historical discrimination that Adelman found in the Wisconsin law. And there’s reason to believe that the Roberts court could soon agree.
In other words, being able to prove that restrictive voting laws are motivated by intentional racial bias — even if the goal is to further partisan ends — is likely to become an even more important part of getting those laws struck down as we move forward.
And the Southern California study suggests that bias may be out there, if the law’s opponents look hard enough.