By Marc H. Morial
“The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll tax.”
— U.S. District Judge Nelva Gonzales Ramos in striking down the Texas voter ID law
Two weeks ago, voter ID laws that could have disenfranchised nearly a million voters in the November 4 midterm elections in two states – Texas and Wisconsin – were ruled unconstitutional. These voting rights victories were critical because of the traditional challenges and unprecedented high stakes associated with this year’s midterms.
Then, on Tuesday, in a low blow to voting rights across the nation, a federal appeals court blocked the lower court’s decision and cleared the way for Texas to enforce its suppressive voter ID requirements in the upcoming November elections. This Texas law changes existing procedures and requires all voters to present a photo ID before being allowed into the voting booth. In the past, voters could demonstrate their identities in various ways. Now, only a small number of documents are permissible – shockingly, gun permits, but not student IDs, will be acceptable.
Voter participation typically drops off in non-presidential election years, with many analysts noting that recent midterm turnout has been about 40 percent compared to 56 percent in presidential years. The non-partisan Voter Participation Center (VPC) predicts an even steeper decline in 2014 among what they have termed “The Rising American Electorate or RAE” (people of color, unmarried women and youth voters ages 18-29).
They predict that “more than one-in-three RAE voters who turned out in 2012 will not turn out in 2014 (34.5% of those who voted in 2012, or 21.8 million RAE voters, will stay home). The predicted drop-off among all other voters is only 17.5% or 12.2 million voters.” With so much at stake – everything from police shootings of unarmed Black men to equitable implementation of Common Core State Standards to rising income inequality – we simply cannot afford to sit this one out.
Despite many attempts to keep certain groups from the polls, champions for democracy and civil rights – such as the NAACP Legal Defense and Educational Fund, led by Sherrilyn Ifill, and the Lawyers’ Committee for Civil Rights Under Law, led by Barbara Arnwine – continue to fight to protect our voting rights. We must also continue to build on the momentum of 2012 when, for the first time in history, African Americans voted at a higher rate than Whites. The repeal of the Texas voter ID law, considered to be the most restrictive in the nation, could have added to that momentum – if it had been upheld.
In striking down the law, U.S. District Judge Nelva Ramos ruled that the difficult and expensive effort to obtain photo IDs from more than 600,000 Texas citizens, many of whom are poor, amounted to an unconstitutional poll tax. She also debunked the law’s bogus claim of preventing voter fraud by pointing out that “In the 10 years preceding passage of SB 14 in Texas, only two cases of in-person voter impersonation fraud were prosecuted to conviction – a period of time in which 20 million votes were cast.”
Also, recently, over the objections of Justices Samuel Alito, Antonin Scalia and Clarence Thomas, the United States Supreme Court blocked implementation of Wisconsin’s voter ID law. Previously ruled unconstitutional because of its disproportionate impact on African American and Hispanic voters, the Wisconsin law could have disenfranchised 300,000 residents who do not have acceptable photo IDs, including a high number of people of color.
Commenting on both initial rulings, Attorney General Eric Holder said, “We are extremely heartened by the court’s decision, which affirms our position that the Texas voter identification law unfairly and unnecessarily restricts access to the franchise…We are also pleased that the Supreme Court has refused to allow Wisconsin to implement its own restrictive voter identification law.”
Unfortunately, the latest Texas ruling could not be more disheartening. The three-judge panel in the federal appeals court did not find the lower court’s ruling wrong or unlawful. Instead, they chose to delay consideration of whether the ruling should permanently stand. In a concurring opinion on the appeal, citing concerns about potential confusion from last-minute changes in the voting rules as reason enough to allow Texas to enforce its restrictive voting laws, Judge Gregg Costa also admitted that “we should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory.” We agree.
In 1964, the Supreme Court said, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”
That basic principle stands today. Voter suppression and disenfranchisement far outweigh any trumped up and spurious claims of election day confusion. The first step in ensuring our voices are heard is ensuring our votes are cast. Don’t let anything keep you from the polls on November 4 – even in Texas.
Marc H. Morial, former mayor of New Orleans, is president and CEO of the National Urban League.