Courts set to consider the legality of Texas, South Carolina voter ID bills

The Takeaway

On Monday, the Justice Department blocked a new Texas voter identification law on the basis that the law would disproportionately affect Hispanics — in violation of the 1965 Voting Rights Act.

The law would have required all Texas voters to show some government-issued photo ID before voting. This past December, the Justice Department blocked a similar law in South Carolina, saying it adversely affected African-American voters.

But the controversy over these laws is far from over. Both South Carolina and Texas have filed lawsuits in U.S. District Court in Washington arguing in favor of their new voting laws. Officials in both states have said they will take their cases to the Supreme Court if necessary.

Kareem Crayton, a law professor at the University of North Carolina, said the basic problem is that while the law applies uniformly, all people “are not equally situated.”

“A lot of the population that was without voter ID currently were groups of people who were non-white voters,” Crayton said. “Voters who are protected under federal law against discrimination.”

Texas, because of its past history of discrimination, has to prove that any changes it makes to its voting laws won’t discriminate against a protected class.

“The information that they provided to the Justice Department basically showed that in a lot of these counties where non-white voters, particularly Latinos, were a majority of the population, more people had not obtained voter ID and would have to put out money and take time to actually register to get a lot of the IDs the state would have required,” Crayton said.

The effect, then, would be minorities would have to either pay to get the IDs or be unable to vote.

But now that the states have challenged the federal ruling in court, it will be up to a judge, and perhaps ultimately the Supreme Court, to decide if there is a sufficient level of voter fraud in the United States to warrant making it harder for voters to cast ballots.

Crayton said the Supreme Court has ruled that developing laws to fight voting fraud is a legitimate notion — but it’s issued no rulings that address the types of requirements imposed in South Carolina and Texas.

“It’s clear that where there’s evidence of there being differential effects, the Voting Rights Act applies. The hard question is one, whether the court will agree the discriminatory impact is significant enough. Two, and this is the big elephant in the room, whether or not section five of the Voting Rights Act is itself constitutional.”

Section five is what allows for Justice Department pre-review of voting restrictions in Texas and South Carolina, and other states.

One thing that is similar between those two states, and different from others that passed voter ID laws, is that the state made no preservation for providing free voter IDs to those without any form of valid photo identification. In Kansas, for example, voters can get a free birth certificate in order to obtain a free photo non-drivers license, to be used at the polls. Kansas also allows the use of student IDs from accredited Kansas postsecondary educational institutions.

“That was one of the concerns the Justice Department made early, in the letter announcing their objections,” Crayton said. “The state (of Texas) did not do enough, in their view, to make sure that these differential impacts would be lessened somewhat.”

Crayton said it would be a different case if they’d provided for free IDs — so different perhaps that they may have been allowed to adopt the statue.

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