The power struggle between the federal judiciary and states that want tighter controls on the voting franchise is building toward a crescendo as the presidential election looms.
In the span of a week, federal court panels struck down three key voting-related efforts in Texas and Ohio, even as South Carolina argued its case for a new voter ID law to a federal appeals panel in Washington. So far, the only ruling that has backed up mostly Republican efforts to create tougher voting rules came from a state judge in Pennsylvania, who two weeks ago ruled that the Keystone State’s new voter ID law should apply in November. (The Pennsylvania state Supreme Court will hear an appeal Sept. 13.)
This week, federal judges struck down two voting-related Texas measures, including a set of redistricting maps that judges found “discriminatory” against Hispanics and a voter ID law, which a separate panel of judges, citing a $22 fee for a state ID, said imposed “strict, unforgiving burdens on the poor.”
In Ohio, the state that may decide the presidential election, a judge on Friday struck down a new rule that allowed only military personnel to vote the weekend before the November election, which the court said discriminated against the poor and minorities, who historically have taken advantage of the early weekend voting to cast their ballots.
Voting rights advocates said the decisions were a body blow to Republican attempts in eight critical states to disenfranchise poor and minority voters by enacting onerous new voting rules in a ploy to goose the chances of the Romney-Ryan ticket.
Vowing to appeal the decisions to the Supreme Court ahead of the election, Republicans cite major polls suggesting that Americans, on the whole, are more concerned about protecting the legitimacy of the vote than the mere possibility of disenfranchising voters.
"This is actually a national trend, where states are trying to do a better job of securing the integrity of the ballot boxes, and yet courts [are] pushing back against that, seemingly promoting and allowing illegal voters to participate in the election process," said Texas Attorney General Greg Abbott, saying that hundreds of deceased people were found to have voted in the state’s recent primary.
The battle over poll security continues to heat up, and could become even uglier as Texas and South Carolina appeal their decisions, possibly putting the Supreme Court in the position to have to make a quick ruling before the election on whether the laws should stand for the November election.
The science on voter ID laws, however, is far from settled, as officials in South Carolina, Pennsylvania, and Texas have argued. They have pointed to a Georgia voter ID law that took effect in 2005, where the immediate impact was that higher percentages of minorities voted in 2008 and 2010 than before the law was enacted. Other studies have found that minority voter participation falls off slightly immediately after new rules take effect, and then bounces back and in some cases even increases.
In Indiana, the Supreme Court in 2007 turned down a Democratic challenge to a tough voter ID law. In that case, the Supreme Court said the “risk of voter fraud is real” and “could affect the outcome of a close election.” The court went on to say, “While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.”
But in their ruling on behalf of states’ ability to regulate elections, the high court also noted that state “judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class.”
And therein, most likely, lies the root of judicial suspicion about the motives behind the new regulations, including laws passed and enacted in Kansas, Mississippi, Rhode Island, Wisconsin, Texas, South Carolina, Alabama, and Tennessee. (Meanwhile, governors in Minnesota, Missouri, Montana, New Hampshire, and North Carolina vetoed new ID laws passed by their legislatures.)
In the Texas voter ID case, judges took note that Texas is one of the jurisdictions covered under Section 5 of the Civil Rights Act, where new voting rules have to be “precleared” by the Justice Department before they take effect – residue of the historic legacy of discrimination, largely in the South. Justices said their ruling was a “narrow” one looking specifically at a law they deemed perhaps the toughest in the nation.
“A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote,” the opinion said. “Simply put, many Hispanics and African Americans who voted in the last election will, because of the burdens imposed by [the voter-ID law], likely be unable to vote in the next election.”
In the Texas redistricting case, judges specifically cited evidence of discrimination in the way Republicans redrew voting maps, in one case to create a district where they replaced likely Hispanic voters with less-likely ones, ostensibly to favor conservative Anglo candidates.
What’s more, during the trial over South Carolina’s voter ID law, which the Justice Department refused earlier to preclear, one of the state’s attorneys last week had to admit one piece of evidence had the “shade of racism.”
It related to an e-mail to the attorney from a constituent, who noted that more minorities and elderly would get the ID if the legislature offered them $100 to do it. “It would be like a swarm of bees going after a watermelon,” the constituent wrote, to which the attorney replied, “Amen … thank you for your support of voter ID.”
Watermelon imagery has long been associated with racist comments in the South. In July, Attorney General Eric Holder, too, raised the specter of racism by calling the Texas voter ID law a “poll tax,” a reference to Jim Crow-era efforts in the South to make voting difficult for minorities.
A recent report by the nongovernmental Brennan Center for Justice suggests that new voting restrictions could disenfranchise more than 5 million voters in November.
Yet there are also arguments that the federal judiciary may be failing to see the forest for the trees. In Pennsylvania, a state judge cleared the way for Pennsylvania’s voter ID law for November, ruling that it ultimately would not disenfranchise anybody since even those who came to the polls without an ID would have their votes counted if they signed an affidavit asserting their identity.
Moreover, a recent Washington Post poll showed that 74 percent of American adults supported voter ID laws, including 65 percent of African-Americans. What’s more, several key voter fraud cases in the past few years have occurred in majority-black districts in Georgia and Mississippi, suggesting to proponents of tougher voting laws that voter fraud is a concern for not just white, conservative voters.
Some experts, meanwhile, have suggested that many Americans don’t understand the issue well enough to form a cogent opinion about voter ID laws or the stakes they raise.
“The problem with that polling is you get casual responses to a casual impression. You assume members of the public are knowledgeable when, in fact, there’s a lot of variation in how much they know or how much they’ve thought about the issue,” says Philip Meyer, a polling expert at the University of North Carolina, in Chapel Hill.