Update 6/25/2013: The Supreme Court Tuesday ruled that the coverage formula used to determine which areas are covered under Section 5 is unconstitutional. The decision effectively ends Section 5 unless Congress comes up with a new formula.
SAN ANTONIO, Texas — Victoria and Nicole Rodriguez turned 18 in 2012, and they were excited about voting for the first time. Twins who finish each other’s sentences, they grew up on the heavily Latino south side of San Antonio, and started college last fall at St. Mary’s University a few miles away. Their Mexican-American family has been in Texas for generations.
“At 18, you can’t do much, but you can vote," Nicole told msnbc in an interview at the university’s student center. " So why not just look forward to it?”
But a strict voter ID law passed by Texas Republicans in 2011 and signed by Gov. Rick Perry threatened to stand in their way. The law, so restrictive that Attorney General Eric Holder called it a "poll tax," required election-day voters to present one of several forms of photo identification, including a driver’s license or passport.
The Rodriguez twins live on campus, don't drive, and have never been abroad so they didn't have passports. Nor did they have any of the other accepted forms of ID. Democrats had pushed for allowing student IDs and for requiring state ID offices to be open on weekends, but those efforts were defeated. Texas offers a non-driver’s state ID, but for the Rodriguez sisters getting one meant showing up at a state office across town during business hours. They’d also have had to pay $22 each for copies of their original birth certificates to prove their identity.
For Victoria and Nicole, that amounts to an extreme inconvenience. For poorer, rural Texans it would have been more than that. A trip to a state office might be 250 miles away, making it all but impossible to exercise a basic civil right.
Until now, the sisters had gotten by with their student IDs from high school and college and used them to board flights last summer to and from Washington, D.C. “Pretty much everything we did, our student ID was sufficient,” said Nicole. But not for voting.
The Rodriguez's were far from alone. According to Texas's figures, anywhere from 605,000 to 795,000 registered voters—between 4% and 6% of all registered voters in the state—lack the required form of ID. And in Texas as in other states, such voters are disproportionately likely to be black or Hispanic, studies have shown.
But the Rodriguez sisters, and hundreds of thousands of other Texans without ID, had one crucial recourse: the Voting Rights Act. Under Section 5 of the landmark civil-rights law, passed by Congress in 1965, any election changes in certain areas with a history of discrimination—including Texas and most other southern states—can be blocked by the federal government if they might reduce the voting power of minorities. Last year, with the Rodriguez sisters as plaintiffs, the U.S. Justice Department and the Mexican-American Legal Defense and Education Fund intervened to stop the law.
Texas argued that the ID law, known as S.B. 14, was a legitimate attempt to combat fraud. No one could be disenfranchised, the state argued, because state IDs were being made available for free.
The court disagreed. “Simply put, many Hispanics and African-Americans who voted in the last election will, because of the burdens imposed by S.B. 14, likely be unable to vote in the next election,” a three-judge panel, comprised of two Republicans and a Democrat, wrote in their ruling last August, blocking the law.
But now, Section 5 is under threat. In February, the Supreme Court heard a challenge to the provision, brought by Shelby County, Ala., and backed by an array of conservative interests that argue Section 5 is unconstitutional because it singles out special areas for scrutiny. In a ruling expected imminently, many court-watchers predict the justices will strike it down.
If that happens, Texas says it will consider voter ID to be the law of the land. "If Section 5 is struck down, the Voter ID law takes effect," Lauren Bean, a spokeswoman for the Texas Attorney General's office, told msnbc via email.
More generally, the demise of Section 5 would give those working to thwart the political power of America’s growing minority population a far freer hand. Nowhere would the impact be felt more strongly than in Texas.
The Growing Power of Texas Hispanics In the first decade of this century, Texas grew by around 4.3 million people. Minorities accounted for 89% of that growth, and Hispanics for 65%, according to the U.S. Census. Today, more than half of the state’s public-school children are Hispanic.
In Texas, that growth has threatened to weaken the GOP. Texas Hispanics have traditionally been more evenly split between the two parties than Hispanics nationally. President Bush got 49% of their votes against John Kerry in 2004. But last year, Hispanics in the state voted for President Obama over Mitt Romney by 70% to 29%, putting them right in line with Hispanics across the country. Perhaps more significantly for Republicans, 26.2% of Texans who voted last year were Hispanic, way up from 20% in 2008.
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The state Republican party has made some efforts to court this vast and growing pool of voters. Perry has a nuanced position on immigration—he signed a 2001 law making undocumented immigrants eligible for in-state college tuition and stood by the measure when he ran for president last year, despite criticism from Romney and others. But at the same time, the party has worked to reduce minorities’ political influence.
One approach has been through redistricting, by dividing minority voters from each other in order to reduce their voting power.
Another has been to simply make voting itself more difficult. Citing the need to prevent fraud—even though just five illegal voting complaints were filed with the state attorney general's office in 2008 and 2010, out of over 13 million votes cast—Texas GOPers have pushed cuts to early voting and put obstacles in the way of voter registration drives. Then in 2011, they passed the country’s strictest voter ID law. Voting-rights groups were so concerned about access to the ballot box last fall, they invited the Organization for Security and Cooperation in Europe, a Vienna-based election-monitoring agency more used to working in places like Afghanistan and Bosnia, to keep an eye on things.
“[Texas] Republicans have said that their party has open arms for minorities, yet their actions speak a little bit louder than their words,” state Rep. Trey Martinez Fischer, a Democrat who chairs the Mexican-American Legislative Caucus, told msnbc. “Their actions show that when given the opportunity, they will sweep that minority growth under the rug so they can preserve political power.”
That’s where Section 5 comes in. Since Obama took office in 2009, the U.S. Justice Department has blocked nine election changes made by jurisdictions in Texas—significantly more than in any other state—citing the moves' potential to reduce minority political power.
It’s perhaps no coincidence then that the first major effort to get Section 5 declared unconstitutional originated in Texas. Seven years ago, an Austin municipal district tried to remove itself from being covered by the law under a “bailout” provision for jurisdictions with no history of discrimination. The Supreme Court ultimately ruled that the district could bail out, but avoided taking a stance on the larger issue of Section 5’s constitutionality. The narrow ruling made clear that the Court was open to reconsidering Section 5 unless Congress made changes, which it didn't.
For Texas, it was only a matter of time before another opportunity emerged. When the Justice Department moved to block Texas’s voter ID law, State Attorney General Greg Abbott challenged the provision. The Supreme Court ultimately chose to hear a similar case from Shelby County instead, but Texas submitted a supporting brief in January.
“Section 5 has empowered the Department of Justice to thwart the implementation of a constitutional voter-identification measure with abusive and heavy-handed tactics,” Abbott and his colleagues wrote.
'It's very liberating' Advocates for Texas’s growing Latino population say whatever happens at the Supreme Court, we haven’t seen the last of the GOP’s efforts to make voting harder for minorities.
“There will be other attempts,” said Rep. Martinez Fischer. “I think now there are some proposals that would put surveillance cameras at polling locations. I can only imagine that that’s going to be used as an opportunity to challenge every single voter that walks up to vote, and to see whether they look like citizens.”
For Victoria and Nicole Rodriguez, Section 5 was around at the right time. With the voter ID law blocked and their student IDs accepted at the polls, they cast their first ballots in November.
“It’s very liberating,” said Victoria.