Election 2012: The fate of Texas’ voter ID law (and all others?)

July 18, 2012

Ballot Law(Editor’s Note: With the upcoming Presidential election in November, we’ll be looking at developments in election and campaign finance law throughout the month of July.)

For the first week’s post on U.S. v. Danielczyk, click here.

For the second week’s post on American Tradition Partnership, Inc. v. Bullock, click here.

With 2012 being a Presidential election year, legal changes that could have an impact on the election seem to grab more of the public’s attention.

One of the most attention-grabbing of these legal changes are voter ID laws, which many states have adopted in the past year or two.

Although the specifics of each individual state’s law varies slightly from one another, voter ID laws impose requirements to provide government-issued photo identification on an individual seeking to vote in person.

While touted as an important tool to fight voter fraud by its proponents, commentators are increasingly finding claims of widespread voter fraud to be greatly exaggerated, with many further describing the measure as an effort to suppress the votes of young and minority groups – traditionally Democratic voters.

However, because of a 2008 Supreme Court ruling – Crawford v. Marion County Election Board – these laws see very few legal challenges.

I wrote a post almost exactly a year ago detailing this ruling in more detail, and in it, I concluded that, because of the ruling, the Supreme Court was unlikely to revisit this issue anytime soon.

It looks like I could have been mistaken, though.

This is mostly because I didn’t take into account an additional factor that could pave a trail for another Supreme Court review of voter ID laws – Section 5 of the Voting Rights Act (VRA).

Section 5 would take an entire separate post to fully explain; luckily, I wrote two earlier this year on the topic (here and here).

Here’s the quick and dirty version:

Section 5 requires that a “covered jurisdiction” cannot change “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” without federal approval.

The “covered jurisdictions” are predominantly states located in the South, but also include counties in other states (see the Department of Justice’s current list of covered jurisdictions for more).

FYI – Voter ID laws are considered such a change to a voting prerequisite that requires federal approval under Section 5.

Last year, Texas passed its own voter ID law, and, as a “covered jurisdiction,” the state needed to apply for and receive federal approval before the law can be implemented.

I wrote a post in February about Texas’s back and forth with the U.S. Justice Department over the state’s release of race and ethnicity information about its voters.

Instead of disclosing this information, Texas just sued the Justice Department seeking a declaratory injunction that effectively forces the Justice Department to approve its law.

In an amended complaint two months later, Texas also asked, in the alternative, that Section 5 be ruled unconstitutional.

After many, many filings, the trial began on Tuesday, July 10, 2012, and ended this past Friday, July 13.

According to Reuters, Texas did not receive a warm reception from the three-judge panel, with all three – to varying degrees – pointing out how the law would disproportionately affect minority voters.

Given that it implicates two major legal and political issues – voter ID laws and Section 5 of the VRA – it is likely that the case will eventually find itself on the Supreme Court’s docket.

Although, considering how Perry v. Perez turned out last term, Texas shouldn’t get its hopes up that Court will invalidate Section 5.

That just leaves the voter ID law.

However Texas’s prospects don’t look great here, either, if for no other reason than Texas’s not waiving the fees to obtain the ID – something that could very easily be construed as “a significant burden” to an individual’s constitutional right to vote under Crawford.

On the other hand, if, as touched on previously, Justice Stevens’ absence results in a more cohesive conservative majority, the Court could uphold Texas’s law, strike down Section 5, and gut the constitutional right to vote, all in one fell swoop.

Nevertheless, at the case’s current rate of progression, the soonest the Supreme Court will likely rule on it (should it even elect to hear the case), is 2014, and a lot can happen on the Court in two years.

In the meantime, we’ll have the 2012 elections to test whether these voter ID laws have the voter-suppressing effect that commentators claim.