Spotlight Exclusives

New Barriers to Today۪s Ballot Box

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In November 2013, Sammie Louise Bates went to her polling place to vote, as she had done regularly for more than 50 years. But the laws in Texas had changed since the last statewide election. Now, with little warning, her voter registration card containing her name and address was suddenly no longer sufficient to vote.

Nor could several other documents, even her out-of-state photo ID from Illinois, help prove her identity. If she ever hoped to vote in person again, Ms. Bates, who supported her family on approximately $300 in Social Security income per month, would have to spend months saving up the necessary $42 to obtain her birth certificate from Mississippi, which would allow her to apply for a new photo ID.

Ms. Bates۪s experience is one of many stories showing how strict photo ID laws put unnecessary burdens on low-income and minority votersand make it harder for them to participate in our democracy.

These kinds of stories combined with rigorous empirical analyses of the law۪s burden on the electorate by an array of experts led a federal court to strike down the Texas photo ID law this September. U.S. District Judge Nelva Gonzalez Ramos found the requirement violated the Voting Rights Act, unconstitutionally burdened the right to vote, amounted to a poll tax in violation of the 24th Amendment, and had been enacted with the intent to discriminate against racial minorities.

Yet, despite this sweeping victory, the law remains in place this Election Day after an appeals court and the U.S. Supreme Court put the lower court decision on hold. Texas is thus one of 14 states with a new voting restriction in place for the first time in a major election this November, and one of 21 states with new restrictions since the last midterm elections in 2010.

These new restrictions are not limited to voter ID. Other states have, for example, cut back opportunities for early in-person voting, imposed various restrictions on voter registration, and made it harder for people with criminal convictions to have their voting rights restored after serving their sentence. A particularly harsh law in North Carolina imposed an array of restrictions in one fell swoop, including cutting a week of early voting, eliminating same-day registration, ending pre-registration of 16- and 17-year-olds, and prohibiting votes cast in the wrong precinct from being counted for any races.

Such restrictions disproportionately harm racial minorities, low-income Americans, seniors, and students. For example, in 2012, one-third of the 100,000 North Carolinians who used same-day registration were African American. And seven in 10 African American voters compared with half of white voters voted early in North Carolina in 2008.

Evidence presented in the litigation over the Texas and Wisconsin ID laws demonstrated significant racial and income disparities in ID-possession rates as well. In Texas, expert data showed that African American registered voters are 305 percent more likely and Hispanic registered voters are 195 percent more likely than white registered voters to lack photo ID that can be used to vote. Low-income Texans disproportionately African Americans and Hispanics were also more than eight times as likely as higher-income Americans to lack acceptable ID.

The recent surge of state voting restrictions, which began in earnest after the dramatic shift in the makeup of state legislatures in 2010, represents the largest systematic effort to roll back voting rights in perhaps a century. They have been passed largely along partisan lines 17 of the 21 states with new restrictions passed them through entirely Republican-controlled legislatures and in states where racial minorities are growing in political strengthrestrictions were passed in seven of the 11 states with the highest African American turnout in 2008 and in eight of the 12 states with the largest Hispanic population growth between 2000 and 2010.

But one trend is particularly troubling for the future of voting rights protections: of the 15 states that were covered at least in part by Section 5 of the Voting Rights Act, nine have passed voting restrictions since 2010. Section 5 required covered jurisdictions to obtain federal approval, or “preclearance,” before they could implement changes to voting rules. Last year, however, the Supreme Court۪s decision in Shelby County v. Holder struck down the formula that determines what states are subject to Section 5, eliminating the law۪s most effective and protective protection.

That decision permitted Texas to put its strict voter ID law immediately into effect despite the fact that it was previously blocked in 2012 by a federal court under Section 5. And it required advocates to return to court once again to challenge the law under the remaining provisions in the Voting Rights Act, and other constitutional protections of the right to vote. Now, despite the successful efforts of the law۪s challengers under those provisions, and despite a full trial in which a court found the measure was intentionally discriminatory, this law remains in effect today, affecting elections and disenfranchising Texas voters.  

Yet, despite this and other setbacks in recent weeks, advocates remain hopeful that, through litigation and legislation, the federal protections that have so effectively kept the worst forms of voter suppression in check and guaranteed the voting rights of low-income and minority Americans for the last 50 years will be restored and reinvigoratedby courts, by Congress, and by voters.

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Vishal Agraharkar is counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law. Follow him on Twitter at @v_agraharkar, and the Brennan Center at @BrennanCenter.

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