This past August, a conservative federal appeals court ruled that Texas’ voter ID law violated Section 2 of the Voting Rights Act (VRA) by undermining minority access to the ballot box. This decision is a significant marker in the debate over whether everyone truly has a voice in the political process. Reasonable steps are needed to advance and protect the universal promise of democracy, and making it easier to vote is one of them. Since 2002, however, several states have moved in the opposite direction by passing new voter ID laws making voting more difficult for many of our fellow citizens.
The justification usually offered for stricter voter ID laws is to prevent fraud. Yet in its 2014 sweeping report to Congress, the nonpartisan Government Accountability Office found very little evidence of fraud in the numerous studies reviewed. Indeed, the most extensive effort to identify in-person voter fraud ever conducted (by Justin Levitt of Loyola Law School, Los Angeles) found just 31 instances of fraud in over a billion votes cast! It’s no surprise then that many have called the claims of alleged fraud “fraudulent,” yet conservative state legislatures keep ratcheting up the voting restrictions. Now, Texas has been slapped hard on the wrist for doing so. The ruling may seem confusing since it was only two years ago that the Supreme Court effectively gutted much of the VRA by striking down Section 4. That section contained the formula for determining which jurisdictions needed to have changes to their election procedures pre-approved by the feds before being implemented.
Since its passage in 1965, Section 2 has applied to all U.S. jurisdictions, not just the egregiously discriminatory ones which were singled out under Section 4. It specifically prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the VRA’s listed minorities. In 1980, though, the Supreme Court ruled that to win a Section 2 challenge, plaintiffs had to prove an intent to discriminate was behind any change to voting procedures—a high burden of proof.
Believing this ruling undermined Section 2’s original purpose, in 1982 Congress legislated that all a plaintiff needed to demonstrate was that a jurisdiction’s voting procedures resulted, regardless of intent, in denying equal opportunities to political participation. The recent Texas law made voting extremely difficult for many citizens who had been regular voters for countless elections by requiring them to show a new state-issued-only photo ID which they’d been unable to obtain. Thus, the appeals court declared the law illegal because it resulted in these voters’ disenfranchisement in the 2014 elections.
This most recent decision, especially by a conservative court, underscores the continuing relevance of the VRA. It suggests that what Congress previously did for Section 2 it should now do for Section 4. Legislation titled the “Voting Rights Advancement Act” modernizing Section 4’s formula has been introduced in Congress to protect our right to vote—the fundamental basis of democracy. It should be passed with deliberate speed.