Andrew Cohen, "How Voter ID Laws Are Being Used to Disenfranchise Minorities and the Poor," Atlantic, March 15, 2012. Copyright © 2012 The Atlantic Monthly Group. All rights reserved. Reproduced with permission.
Andrew Cohen is an award-winning legal analyst and legal commentator, appearing frequently on 60 Minutes and CBS Radio News. He is a fellow at the Brennan Center for Justice and contributing editor at The Atlantic and The Marshall Project.
Evidence shows that the minority voter base—specifically Hispanics and economically underprivileged minorities—is steadily growing larger and could surpass the white vote in a matter of decades. Because these voters traditionally vote for Democrats, conservative groups have turned to restrictive voter ID laws as a means of suppressing the minority vote. Opponents have sought to strike down state-initiated voter ID laws on the basis of discrimination and voter suppression, claiming that such laws are an infringement against the Voting Rights Act, but this is problematic as it positions federal law against state electoral rights.
First, let's call it what it is. The burgeoning battles over state redistricting and voter ID laws—and the larger fight over a key part of the Voting Rights Act itself—are all cynical expressions of the concerns many conservatives (of both parties) have about the future of the American electorate. The Republican lawmakers who are leading the fight for the restrictive legislation say they are doing so in the name of stopping election fraud—and, really, who's in favor of election fraud? But the larger purpose and effect of the laws is to disenfranchise Hispanic voters, other minorities, and the poor—most of whom, let's also be clear, vote for Democrats.
Jonathan Chait, in a smart recent New York magazine piece titled "2012 or Never," offered some numbers supporting the theory. "Every year," Chait wrote, "the nonwhite proportion of the electorate grows by about half a percentage point—meaning that in every presidential election, the minority share of the vote increases by 2 percent, a huge amount in a closely divided country." This explains, for example, why Colorado, Nevada, and Arizona are turning purple instead of staying red. "By 2020," Chait writes, "nonwhite voters should rise from a quarter of the 2008 electorate to one third." In 30 years, "nonwhites will outnumber whites."
According to [Texas's] own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack [voter] identification.
Some States Are Making It Harder for Nonwhites to Vote
Which is why "whites," and especially white men, seem so determined this election cycle to make it harder for nonwhites to exercise their right to vote. The news from the front this week [March 2012] is telling. On Wednesday, in Pennsylvania, GOP Governor Tom Corbett raced to sign a bill that requires photo identification of voters. The day before, in Texas, GOP Attorney General Greg Abbott amended the Lone Star State's complaint against the federal government to seek to strike down the pre-clearance section of the Voting Rights Act, which had in turn been used by the Justice Department to block Texas' recent efforts at a stringent new voter-ID law.
In Wisconsin, meanwhile, a state court judge on Monday [March 12, 2015] blocked the state's new voter ID law, ruling that it unconstitutionally created a new (and lower) class of citizen-voter. Even the Human Rights Council of the United Nations has been dragged into the controversy, by the NAACP, to the great consternation of conservative bloggers and conspiracy theorists. It's all happening because lawmakers are dissatisfied with less onerous identification requirements—like those just enacted in Virginia—which allow registered voters to produce a wide range of documentation to establish that they are who they say they are.
Even though the Justice Department acted first in December  in blocking a South Carolina voter-ID law, election law experts seem to agree that the Texas case is going to be the tip of the spear. Here's how the Justice Department responded when it reviewed Texas' new voter-ID law. Federal lawyers wrote:
[W]e conclude that the total number of registered voters who lack a driver's license or personal identification card issued by DPS [Department of Public Safety] could range from 603,892 to 795,955. The disparity between the percentages of Hispanics and non-Hispanics who lack these forms of identification ranges from 46.5 to 120.0 percent. That is, according to the state's own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification. Even using the data most favorable to the state, Hispanics disproportionately lack either a driver's license or a personal identification card issued by DPS, and that disparity is statistically significant.
There's more. As Brentin Mock wrote earlier this week at Colorlines, the practical reality of life in Texas makes it difficult, if not impossible, for people who want to comply with the new ID law to do so. Mock wrote:
Texas has no driver's license offices in almost a third of the state's counties. Meanwhile, close to 15 percent of Hispanic Texans living in counties without driver's license offices don't have ID. A little less than a quarter of driver's license offices have extended hours, which would make it tough for many working voters to find a place and time to acquire the IDs. Despite this, the Texas legislature struck an amendment that would have reimbursed low-income voters for travel expenses when going to apply for a voter ID, and killed another that would have required offices to remain open until 7:00 p.m. or later on just one weekday, and four or more hours at least two weekends.
Here's how Governor Rick Perry responded:
Texas has a responsibility to ensure elections are fair, beyond reproach, and accurately reflect the will of voters. The DOJ [Department of Justice] has no valid reason for rejecting this important law, which requires nothing more extensive than the type of photo identification necessary to receive a library card or board an airplane. Their denial is yet another example of the [Barack] Obama Administration's continuing and pervasive federal overreach.
If the Voting Rights Act was originally designed to protect the rights of black Americans to vote, do we now need a new Voting Rights Act that would protect the rights of Hispanic Americans to vote?
States Claim Federal Overreach
Continuing and pervasive federal overreach. We've heard that refrain before, as constantly as a chorus in fact, since President Obama took office in 2009. Opponents of the 2010 Affordable Care Act [ACA], for example, have asserted that Congress overreached its authority under the Commerce Clause when it enacted [the ACA]. Now many of those same people say that the Justice Department is overreaching with its interpretation of the Voting Rights Act by seeking to void these state ID laws—and that the federal law itself is a statutory overreach that violates the 10th Amendment right of states to determine their own election rules.
Which brings us to Supreme Court Justice Clarence Thomas, who alone among his colleagues has expressed interest in striking down section 5 of the Voting Rights Act. In 2009, in a case styled Northwest Austin v. Holder, Justice Thomas memorably proclaimed "victory" in the federal war against state laws designed to disenfranchise black voters. "The constitutionality of section 5 has always depended," he wrote, "on the proven existence of intentional discrimination so extensive that elimination of it through case-by-case enforcement would be impossible.... 'There can be no remedy without a wrong'" (citations omitted by me).
And then Justice Thomas wrote this:
The lack of sufficient evidence that the covered jurisdictions currently engage in the type of discrimination that underlay the enactment of § 5 undermines any basis for retaining it. Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose. Admitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.
So if section 5 doesn't apply to "long past sins" against black voters, what about current sins against Hispanic voters? If the Voting Rights Act was originally designed to protect the rights of black Americans to vote, do we now need a new Voting Rights Act that would protect the rights of Hispanic Americans to vote? If so, why aren't federal lawmakers tripping over themselves to get on the good side of a voting bloc that is going to increase in power over the next generation? Oh, that's right. As Chait reminds us, we are not quite yet at the point at which the benefit of shilling for Hispanic votes outweighs the burden of angering white voters.
It's unlikely new legislation is needed—we can still use the old reliable 1965 statute and apply it to new circumstances like the ones presented now. But does the discriminatory effect of state ID laws have to be so bad—"violence, terror and subterfuge" is how Justice Thomas put it—before the federal government may step in against a state? Or is it enough to establish that there is a national effort by conservative groups to press for these types of laws? (Ironic, isn't it, in a dispute conservatives argue is states' rights, that so many of these state voter ID laws would be conceived within the Beltway.)
"A Solution in Search of a Problem"
Several commentators over the past week or so have called the current generation of voter ID laws "a solution in search of a problem." But that doesn't give enough respect to the argument that we should as a nation strive to be as accurate as possible with our voting. If voting fraud is the third oldest profession, and if it is somehow rampant in all these states that have Republican leaders at their helm, then there should be reasonable ways to combat it. No responsible lawmaker ought to be against that. But no one seems able to find good evidence that a crisis is at hand. All Texas Attorney General Abbott could muster this week was this:
Since 2002, the U.S. Department of Justice has prosecuted more than 100 defendants for election fraud. During the same period, election fraud investigations by the Texas Attorney General's Office have resulted in 50 convictions. Those cases include a woman who submitted her dead mother's ballot, a paid operative who cast two elderly voters' ballots after transporting them to the polling place, a city council member who unlawfully registered ineligible foreign nationals to vote in an election that was decided by a 19-vote margin, a Starr County defendant who voted twice on Election Day, a Harris County man who used his deceased father's voter registration card to vote in an election, a worker who pled guilty after attempting to vote for two of her family members, and a Brooks County man who presented another voter's registration card and illegally cast that voter's ballot on Election Day.
In 10 years, just 100 federal prosecutions and 50 state convictions—in a colossal state with a population of more than 25 million people. You can do the math. You can be stupid and vote in America. You can be drunk and vote in America. You can be mentally insane and vote in America. You could vote in America for Snooki or Rod Blagojevich. Or, like tens of millions of your fellow citizens, you can choose not to vote at all. But if you don't have the means to get a driver's license, or if you cannot afford the time and money it takes to get certain other forms of government ID, you are out of luck? What a great country this is.