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Are Voter ID Laws Racist?
There are few things as controversial in American political life as voting rights. The issue surged to the fore this past week in Veasey v. Abbott when the Fifth Circuit, by a 9-6 vote, delayed the enforcement of Texas Law SB 14. This law limited the forms of photo identification that could be used when registering to vote to state driver’s licenses, U.S. passports, military photo IDs, concealed weapon permits, and U.S citizenship certificates with photographs. Although the law provided for some exceptions for poor and disabled persons, it has been attacked as the most restrictive voting rights law in the United States.
A variety of plaintiffs mounted both a constitutional and a statutory challenge to the law—the former under the Equal Protection Clause of the Fourteenth Amendment, and the latter under Section 2 of the Voting Rights Act, as amended in 1982. The plaintiffs’ burdens under the two provisions are distinct. It has long been accepted under the 1976 Supreme Court decision in Washington v. Davis that an equal protection challenge to any law cannot rest simply on proof that the law has a disparate impact by race, but rather, must show that there was some intention on the part of the lawmakers to abridge those rights on the grounds of race.
In contrast, the 1982 Amendments to the 1965 Voting Rights Act gravitated toward a stricter standard by prohibiting any law “which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” That standard is then further refined in ways calculated to invite litigation, taking into account the possibility that the “political process is not equally open to participation by members of a protected class”—code for minority members, who have “less opportunity to participate in the political process.”
The issue of the constitutionality of photo IDs arose in 2008 in Crawford v. Marion County Election Board, where the Supreme Court, by a 6-3 vote, upheld an Indiana ID law that required voters to show either state or federal picture ID by denying that such a requirement unduly infringed on anyone’s right to vote. The Court only looked at the constitutional challenge and did not consider the 1982 Voting Rights Amendments, presumably because none of the parties thought it could support a claim. Instead, Justice Stevens wrote that the law was neutral on its face, and had a permissible justification of preventing voter fraud that could upset the results of individual elections and undermine public confidence in the electoral process.
One way to look at Crawford is that preventing voter fraud is important enough to justify the small burden on individual citizens of showing photo ID—a burden no greater than that faced for getting on an airplane. The record makes this view attractive. In Texas, the required IDs were held by over 95% of the population, but among the registered voters, “Hispanic and Black voters were respectively 195% and 305% more likely than their Anglo peers to lack SB 14 ID.” No one claimed this differential rate of registration was attributable to any form of state discrimination. Texas did not charge for the required ID, though there was evidence in the record that some individual plaintiffs had difficulty in navigating the system. It was also agreed that the Texas law passed in 2011 only after tremendous political struggle on a straight party-line vote, which reflected the dominance of Republicans in both houses of the Texas legislature.
There is little question that the Fifth Circuit could have easily dismissed the entire case by a respectful citation to Crawford. But instead, it took out the heavy artillery to upend the Texas statute. If Veasey survives, it will be exceedingly difficult for any photo ID law to pass muster in the United States, at least in the absence of heavily documented instances of fraud, and perhaps not even then.
Veasey goes off the rails with its uneven treatment of the fraud question. The debate over the frequency of individual fraud in various elections has been much mooted and the received wisdom is that the fraud risk is overrated in most cases. But the hard question is by exactly how much. The Veasey majority took an overly dismissive view on the question when it treated the risk as minimal, given that there were “only two convictions for in-person voter impersonation fraud out of 20 million votes cast” before the law was passed. But that result is also consistent with the proposition that significant fraud—including the organized fraud-rings found elsewhere—is going undetected by the criminal system, and a simple ID law is needed precisely because the criminal system is so weak. “Landslide Lyndon” Johnson’s victory in the 1948 senatorial election was, after all, rife with fraud. If it is permissible to refer to the inexcusable racism of 1930s Texas with respect to voting, why not take a similarly long view on fraud?
Once the fraud issue was downplayed, the majority in Veasey tackled both the constitutional and the statutory claims. On the constitutional issue, the inescapable difficulty with any intent test is that professional politicians on both sides of the aisle know which party is likely to benefit from any given enactment—which explains why the Democrats stonewalled and the Republicans pushed SB 14 over multiple legislative sessions. But if the simple knowledge of a disparate impact were sufficient to establish the intent requirement in an equal protection case, the jig is over: it is always there, and it always cuts in favor of the Democrats whose own political machinations are outside the purview of judicial review because they are acting on behalf of some protected class. Hence it takes more to establish the intent requirement, and it is here that the majority badly flubs the issue.
Let’s start with the simple point that no one found any statement by any person that indicated an invidious racial motive. To the majority, however, even this clean record was suspect, because it was quite happy to insist, without any documentation, on “the sad truth that racism continues to exist in our modern American society despite years of laws designed to eradicate it.” If you start with that presumption, you look for ways to confirm it. At this point, the majority first cautions against using evidence of misdeeds long ago to prove the charges, but nonetheless refers back to admitted cases of racial injustice, none of which are more recent than 1975. It also thinks it is permissible to infer racist sentiments from official opposition to the Voting Rights Act, which only hampers the ability of politicians to criticize the existing law, one that in my view has long been overly-intrusive into the electoral process.
There was clearly not enough in this disconnected set of dribs and drabs to sink the law, so the Circuit Court then mistakenly remanded the case for further findings to see if this portion of the case could be bulked up by circumstantial evidence gleaned by scrutinizing the long political battle. The simple point here is that every reform undertaken today is reviewed in light of sins committed decades ago. It is easier to think back to the original sins of America’s racist past than to trumpet the manifest progress on race relations that has only come undone in the last several years of heightened racial animosity.
The Fifth Circuit majority engages in equally dubious tactics in finding that the laws in question work a disparate harm on minority individuals. Once again, the heavy weight of the past is said to block equal participation in the political process, without any explanation of the major changes in legislation and voting behaviors since 1965. The 1982 Senate Report on the Voting Rights Amendments places a lot of emphasis on the various electoral devices of recent memory that were used to disenfranchise minority voters: the use of slates and large districts, for example. But the only issue that resonates today is the insistence that the law take into account “the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.”
At this point, it is easy to draw up a story about how the extra burdens of the voter ID laws fall disproportionately on minority persons, given that persistent differences by race in education, employment, and health are the norm today (in part because of the misguided progressive policies that hamper charter school education, place minimum wage and union barriers against minority employment, and block the entry of low-class corporate healthcare providers in minority neighborhoods). And it is easier still to select individual instances where the burdens of compliance are higher than the norm. But the central point is that nothing in the majority opinion stated, let alone demonstrated, that minorities who suffer from educational, employment, or health disadvantages find it any more difficult than white individuals to get the appropriate IDs. The sole objection was that there were more minority individuals in this vulnerable group, so that the disparate impact claim is always made out once the standard demographic information is trotted out. By this dubious logic, it is possible to order the removal of existing safeguards against fraud because they too have a disparate impact.
It follows that, in light of the double-barreled attack mounted in Veasey, it will be exceedingly difficult to sustain any changes in voter ID laws. This is the highly likely result of any decision that poo-poos the fraud issue, and then relies heavily on past history to taint any efforts to tighten up ID requirements for elections. The long-term consequences of this decision are likely to prove unfortunate. For one thing, much progress could be made in voting rights by simply redoubling registration drives in poor neighborhoods. But instead, the litigation works in the other direction by encouraging people not to get the appropriate IDs if weaker forms of securing the ballot are available. Indeed, the occurrence of fraud is most likely in marginal neighborhoods where white, black, and Latino individuals may well have the weakest attachment to the overall political system.
The decision in Veasey is a careless condemnation of the current system on racist grounds. It may well be that the Texas system is far from ideal, and it would be foolish for any outsider to be overconfident that the ideal set of precautions has been adopted in this case. But based on the weak evidence presented here, it is surely a mistake for a majority of the Fifth Circuit to block the law within months of a presidential election. The Supreme Court should stay Veasey and review the outcome in light of its own now denigrated decision in Crawfold. The odds are 4-4 that this will not happen.
© 2016 by the Board of Trustees of Leland Stanford Junior UniversityPublished in Law
Wouldn’t obtaining a required form of identification be easier?
Suppose we had a small town (say, Mayberry) where there hadn’t been a robbery attempt at the local bank for over thirty years. You could argue that all of the vaults, locks, cameras, and guards were financially a waste of funds, because no one could produce evidence that anyone was really trying to rob the bank. But any idiot can predict what will happen if you remove all the vaults, locks, cameras, and guards.
The fact that there’s no proof that your preventive measures haven’t been needed is not, by itself, any justification for removing them. The moment you remove preventive measures, you change the odds.
Voter ID is an ounce of prevention that’s better than a pound of cure.
The racism of the left knows no bounds. In this case, the assumption that having a certain color skin makes one incapable of obtaining an ID and keeping one’s papers in order. Is there any empirical evidence for this belief?
If I were in Congress, and if this case is upheld, I would respond by sponsoring a bill making voter fraud a capital offense. If we take away the barriers making the crime harder to commit, we need to increase the punishment for the crime proportionately. And it really should be a capital crime anyway. It’s equivalent to attempting to overthrow the government.
Easier to…what? It’s not very hard to vote with or without a voter ID law. I don’t think that is what this challenge was about. The goal is make it easier to commint voter fraud. The goal is make it easier for Democrats to win. The Texas law makes that harder.
The 5th Circuit came to the rescue of Democrats who want to commit voter fraud next November. The 5th Circuit just made that easier.
Well said. That making a crime harder to commit actually reduces the amount of such crime is axiomatic. It doesn’t have to be demonstrated.
Do tax hikes disproportionally burden white taxpayers?
Even more than voter ID laws burden minorities. Because any minority person can at least take the steps to get his papers and IDs in order before an election. But what can a rich white voter do to get around a tax increase?
They make the id’s free for those who get them just for voting. It is such a small burden that the whole case is ridiculous.
Easier than mounting both a constitutional and a statutory challenge to the law.
Last weekend there was an advertisement for a large adopt-a-pet event. The representatives of the shelters involved were on TV telling people to be sure to bring two forms of ID and to have available two personal references plus the adoption fee of $25.
More due diligence goes into vetting a puppy adoption than exercising the most precious right in a democracy.
Problem is….. you don’t have a constitutional right to adopt a puppy, you do have one to vote…. (and before the Constitutionalists speak up, yes I know there is debate on whether we have the right to vote…)
There is no absolute right to vote in the Constitution. It just can’t be abridged for certain reasons, and the Voting rights Act fills in the other gaps.
I would love to see these people who absolutely cannot get an ID questioned by a lawyer, the twisted logic involved would be amazing to behold. I’ll bet they couldn’t come up with 25 such people in the whole state.
As someone stated above ‘ I couldn’t get an ID so I filed a lawsuit which is much easier ‘ , BTW how did the plaintiffs get into the courthouse?
Of course they are.
They discriminate against the dead, depriving Democrats of a key demographic.
No substantial voter fraud? In 2008, both Clinton and Obama got onto the presidential primary ballot using forged signatures. Prosecutors said that Obama was too short on valid signatures to have been on the ballot at all, though Ms. Clinton was reported to have enough signatures without the forged ones.
This case of voter fraud (and I’m sure it is the only one!) only came to light because a whistle-blower (who was supposed to be checking for fraud (while he was committing it), three years after the fact, told the authorities. Two years after that, a jury exposed a five-person conspiracy and convicted two Democratic political operatives of felony forgery.
This seemingly small faking of 9 pages of signatures was substantial enough to change an election and “fundamentally change America”.
Do we really not check for fraud?
(Here’s the story: http://www.foxnews.com/politics/2013/04/26/officials-found-guilty-in-obama-clinton-ballot-petition-fraud.html).
It is obvious it’s all about fraud. Lack of voter I.D. combined with blanket registration drives is the key to Democrat urban victories. Fl proved that it is not enough to buy votes and bus people to polls because they can make errors and may not vote the way one wants. Better to just vote the registered voters who don’t show up or who are known will not show up. How does one catch this fraud without photos at the time of voting and expensive follow up with millions of voters. Fraud this time around will be massive.
“Problem is….. you don’t have a constitutional right to adopt a puppy, you do have one to vote…. ”
And I’d like to ensure that only those with the Constitutional right to vote have the ability to do so. Every fraudulent vote cast dilutes my right to vote.
Strong opposition to voter I.D. is obviously racist, it assumes that blacks don’t have the capacity to get an I.D. While Democrats remain the party of racism, they know better than this. It’s all about the fraud. Some things are obvious.
Voter fraud gave us ObamaCare. Sen. Al Franken (D. MN) won his election after a re-count that was later shown to have illegally counted the votes of felons who were not eligible to vote.
On today’s WSJ Op-ed page there is an excellent piece by Hans von Spakovsky and John Fund that tears apart the recent decisions in the 5th and 4th Circuits (Texas and Virginia) that invalidated voter ID laws. They point out that the District Judge in Texas found facts that participation by minority voters went up after the law was passed. The same thing happened in Georgia, where a voter ID law has (so far) been upheld.
We’re dealing again with outcome based jurisprudence. Left wing judges decide who should win a case then they torture the facts and the law to come up with an opinion to reach that outcome. After watching that sort of crooked game for most of the past 40 years, I now prefer to stay away from litigation and do transactional work. Those who continue to charge up those hills have my sympathy.
It becomes grotesquely obvious we no longer have a “rule of law” when one considers that Justice Kennedy is now the most important single person in the federal judiciary.
I definitely agree with your statement. I mean, the idea is that blacks just can’t figure out how to get an ID card or get to a polling place. However will we do anything without a white liberal to help us out? Oh well.
I will also say, following @lensman‘s mention of Spakovsky & Fund, their book “Who’s Counting” was shocking, and really very good. I had kinda taken it on faith, because it was repeated so often, that there really aren’t any incidents of voting fraud, and if you find something, it won’t be major. It’s rare. We can say, “It doesn’t happen.” That’s what everyone says. “Who’s Counting” is full of incidences of voter fraud. It’s actually a big problem! I was shocked. And they have a lot of data showing that the laws don’t hurt black turnout.
However from a cursory reading of the case, it does seem like NC really was trying to limit black turnout . Which, after reading the S&F book, is very frustrating, not only because they were racist, but because Voter ID laws in and of themselves aren’t racist, and they don’t hurt black turnout. NC just really messed up badly and they hurt a legitimate cause.
I had somehow missed this news. So I googled and found this article from July 14: http://www.wsj.com/articles/SB10001424052748704518904575365063352229680 Do you know if there is any more definitive or detailed information about it than that?