by Michael Handley (Updated Thursday June 27, 2013, 3:10 p.m.)
On June 25, 2013, the Supreme Court struck down a part of the Voting Rights Act that required Texas and other states to get a federal DOJ or District Court approval before implementing any election law change.
The Court struck down Section 4 of the Voting Rights Act, the provision of the landmark civil rights law that designates which parts of the country must have changes to their voting laws cleared by the U.S. Department of Justice or a federal court. With Section 4 now invalidated, the states listed in Section 4, which includes Texas, are no longer compelled to comply with Section 5 preclearance requirements. Those states are now free to enforce laws previously blocked under Section 5 regulations.
On August 30, 2012, a federal DC Court three-judge panel blocked Texas' new SB 14 Voter Photo I.D. Law, under provisions of the Voting Rights Act struck down by the Supreme Court. The three-judge panel found that SB 14 imposed "strict, unforgiving burdens on the poor" and noted that racial minorities in Texas are more likely to live in poverty.
The Department of Justice pointed out that hundreds of thousands of registered voters in Texas were without the necessary identification and were thus at risk of disenfranchisement. A disproportionate number were Latino.
Justice Ruth Bader Ginsburg, dissenting from the June 25th SCOTUS ruling, highlighted a paradox at the heart of the majority opinion: “In the court’s view, the very success of Section 5 [and 4] of the Voting Rights Act demands its dormancy”.
Ginsburg, supported by justices Sephen Breyer, Sonia Sotomayor and Elena Kagan, said it is the very success of pre-clearance that underlines why it must be preserved. “The Voting Rights Act has worked to combat voting discrimination where other remedies have been tried and failed,” she writes.Opponents of pre-clearance under Sections 4 and 5 of the Voting Rights Act say that Section 2 will be sufficient on its own as a safeguard against future discrimination. But the burden of challenging new electoral laws now shifts from the federal government to the individual voter.
In her dissent, Ginsburg lists some of the insidious changes to voting laws that could now creep back into the American electoral landscape. Under pre-clearance, states including Texas have been blocked from racial gerrymandering by redrawing electoral boundaries in an attempt to create segregated legislative districts.
Pamela Karlan, a professor at Stanford law school who had previously filed an amicus brief on behalf of the bipartisan House Judiciary Committee leadership supporting the constitutionality of Section 5 of the Voting Rights Act, said that by striking down pre-clearance the supreme court had “shifted the burden away from the perpetrators of discrimination and onto the shoulders of the victims of discrimination. Local minority voters will now have to find a lawyer and go to court to argue voting rights infringement under Section 2 – and for many that will be very difficult.”
Section 2 of the Voting Rights Act forbids states from enacting voting restrictions that have a greater impact on minority voters than on others. There is, however, a catch. Samuel Bagenstos, who was until recently the number two official in the U.S. Dept. of Justice Civil Rights Division, has said that the DOJ can't bring a Section 2 lawsuit claiming voter disenfranchisement, until after voters have been disenfranchised:
“In order to bring a Section 2 case, you’d have to as a practical matter show two things. One, that there’s a significant racial disparity and two, that the burden of getting an ID is significant enough for us to care about.Minority Leader of the House Rep. Nancy Pelosi (D-CA) said Wednesday that Congressional Democrats are planning new legislation to render ineffective Chief Justice Roberts Court's decision on the Voting Rights Act. But many question whether such legislation has any chance of passing in the Republican controlled House.
Any Section 2 case would almost certainly have to wait until after the next election, since the evidence that the laws were discriminatory “can only be gathered during an election that takes place when the law is enacted.”
Shortly after the Supreme Court read its decision striking down Section 4 of the Voting Rights Act, Texas Attorney General Greg Abbott tweeted that nothing now stands in the way of the state enforcing its controversial SB 14 voter photo ID law.
“With today’s decision, the State’s voter ID law will take effect immediately,” Abbott announced. “Redistricting maps [as originally] passed by the Legislature [in the 2011 legislative session] may also take effect without approval from the federal government.”On Thursday, June 27, 2013 the Supreme Court followed up its Tuesday, June 25th, ruling on Section 4 of the VRA, officially vacating and kicking back the DC Court three-judge panel's August 2012 ruling that blocked Texas' voter photo I.D. law. SCOTUS' action was a predictable result of its ruling, effectively ending the federal government's oversight of elections in Texas and other states with a history of discrimination in voting. The justices ordered lower courts to reconsider, in light of Tuesday's ruling, the status of previous low court rulings on appeal to SCOTUS, as was Texas' I.D. law. Legal experts remain divided on what the Supreme Court's rulings mean for the election laws that had been blocked under Section 5 review, and it could be weeks before the district courts weigh in. In the mean time, Texas and other states listed in Section 4 are not waiting to start enforcement of those laws.
U.S. Rep. Marc Veasey (D - Fort Worth) joined seven others Wednesday in filing a federal lawsuit to keep Texas from enforcing its voter ID law. Veasey, who represents the 33rd Congressional District, one of four districts created statewide during the latest redistricting battle, filed the papers in Corpus Christi federal court saying that under Section 2 of the VRA, SB 14, which requires voters to present a government-issued photo I.D. at polling places, will unconstitutionally deprive thousands of minorities of their right to vote and make re-election campaigns more expensive.
At his Redistricting Blog, Michael Li explains how Sections 2 and 3 of the Voting Rights Act could possibly provide some of the protections afforded under Sections 4 and 5.
Originally set to go into effect on January 1, 2012, the Texas Photo I.D. Law (SB 14) requires voters to present one of a limited selection of government issued photo I.D. to election Judges in order to qualify to vote. The accepted forms of currently dated photo identification include:
- Texas DPS issued Driver’s License or Personal Identification Card;
- Texas DPS issued Election Identification Certificate (EIC);
- US passport;
- US military ID;
- Texas concealed weapons license; or
- US citizenship papers containing a photo.
The Texas Department of Public Safety announced shortly after the Supreme Court read its decision that starting Thursday, June 27, 2013, Texas driver license offices will begin issuing free Election Identification Certificates to anyone who doesn't already have another of the government issued photo I.D. documents. (DPS Webpage for EIC Info.)
Under the 2011 state law creating one of the state’s most strict voter I.D. laws, the certificates are free and valid for six years - which means they must be periodically renewed. However, there is no expiration date of an EIC for citizens 70 years of age or older.
To qualify for any Texas Department of Public Safety issued photo I.D., an applicant must give proof of U.S. citizenship and Texas residency by presenting identity documents. These identity documents include an unexpired Texas driver license, Texas Identification card, or U.S. Passport book or card. For most who don't have one of those primary identification documents, already, they must present an original or certified copy of a birth certificate issued by their birth state's Bureau of Vital Statistics, along with another identity document listed under a menu of documents. This menu of documents includes a Voter Registration Card.
Frequently Asked Questions:
I’m a senior. Am I exempt from the photo I.D. requirements?
SB 14, as passed by the Texas Legislature, has no exemptions for senior citizens voting in person, regardless of age. Additional photo I.D. is not required to vote by mail.What are some exceptions to the photo voter I.D. requirement?
Exceptions AvailableHow do I get a qualified photo I.D.?
A person may obtain an exemption from the I.D. requirement on the basis of disability if they produce a statement in a form determined by the SOS that the applicant does not have any of the prescribed forms of identification, and they have an:
- U.S.S.S.A. determination of disability, or
- U.S.V.A. disability rating of 50%.
A voter without a photo I.D. may cast a provisional ballot, which will count if she signs an affidavit attesting to the fact that she:
The affidavit may be signed at the time the provisional ballot is cast or at the time the voter appears before the voter registrar within 6 days following the election to have the provisional ballot counted.
- has a religious objection to being photographed, or
- does not have an I.D. as a result of a natural disaster declared by the U.S. President or Texas’ Governor no earlier than 45 days before the election and that disaster caused the inability to access the voter’s I.D.
Early/Absentee Voting I.D. Requirements
The photo I.D. requirement does not apply to absentee voting, including early voting by mail. Photo I.D. requirements apply to all in-person or curbside early voting.
Voters who do not possess any of the above types of I.D. will be able to obtain a free Election Identification Certificate (EIC) from the Texas Department of Public Safety. In order to obtain an EIC, you will need to bring the same type of documentation used to prove your identity that you would need if you were apply for a Driver’s License or Personal Identification card. If you do not already have one of the above listed types of I.D. you must present one of the following documents at the DPS office:
- Original or certified copy of a birth certificate issued by your appropriate birth state's State Bureau of Vital Statistics or equivalent agency from a U.S. state, U.S. territory, or the District of Columbia. A birth record issued by a hospital is not acceptable under this category.
- Original or certified copy of U.S. Dept. of State Certification of Birth Abroad (issued to U. S. citizens born abroad)
- Original or certified copy of court order with name and date of birth (DOB) indicating an official change of name and/or gender from a U.S. state, U.S. territory, or the District of Columbia.If you do not currently have the required documentation to obtain an EIC, now would be a good time to start the process of obtaining the necessary documentation. For the list of acceptable DPS documents, click here. Helpful tip: One of the acceptable pieces of “Supporting Identification” necessary is a Voter Registration Card. If you are not already registered, have moved, or lost your card, you can get a new or updated certificate by going here. Getting a photo I.D. may require documentation such as a birth certificate and take several weeks. Voters without a qualified photo I.D. should allow enough time to get the required documents.
Can I use an expired driver’s license to vote?If you need to obtain ID documentation needed to obtain an EIC, here are some links you might find helpful:
Except for citizenship papers, the I.D. must be current or have expired no more than 60 days before voting.What will the poll worker check at the polls?
Poll workers will check that the photo is of the voter and the names on the I.D. and voter registration list match.What if my name changed since the last time I voted?
You can check your registration information by visiting the “Am I Registered?” page of the Texas Secretary of State’s website. There are various ways to change your registration information:Do I need to re-register if my address changed?
- Visit the Texas Secretary of State’s site. Texas does not offer online voter registration, but you can fill out a voter registration form to print and send to your Texas County's Elections office.
If name on your I.D. and your voter registration match, addresses do not need to match. However, you will need to complete a change of address statement at the polling place.What if I don’t have a photo I.D. when I go to vote?
Voters without a qualified Texas state- or government-issued photo I.D. can vote a provisional ballot and present a qualified photo I.D. within 6 days. If you are otherwise eligible and you present I.D. within six days, your ballot will count.Can I use a school or university issued I.D. to vote?
No, students will not be able to use their school I.D.'s to vote in the Texas elections. They will need to obtain one of the acceptable photo I.D.'s issued by the Texas Department of Safety or the U.S. government.Will State and County Election Officials provide more information?
The Secretary of State, and the voter registrar of each county that maintains a website, shall provide notice of the I.D. requirements for voting in each language in which voter registration materials are available. The Secretary of State shall prescribe the wording of the notice to be included on the websites, and shall also conduct a statewide effort to educate voters regarding the identification requirements for voting. The county clerk of each county shall post in a prominent location at the clerk’s office a physical copy of I.D. information in each language in which voter registration materials are available.Texas Sec. of State' Voter I.D. information webpage - click here.
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