Texas’ voter ID law went on federal trial last week in Corpus Christi.* Texas Gov. Rick Perry signed the law in 2011, and it went into effect on Jan. 1, 2012. The law was blocked by a federal court later that year, but reinstated after the Supreme Court struck down Section 5 of the Voting Rights Act in 2013. This is a big test of whether Section 2 of that act, which bars racial discrimination in voting, has any teeth. To vote in Texas, registered voters must now present one of the following: a driver’s license or state ID card, a license to carry a concealed gun, a U.S. military ID card with a photo, a U.S. citizenship certificate with a photo, a U.S. passport, or a state election certificate (a document you can obtain if you don’t have any other accepted form of ID). Student photo IDs and out-of-state driver’s licenses are not permitted. The Department of Justice, the NAACP, and various other voting and civil rights groups are challenging the law, claiming that up to 787,000 registered Texas voters lack any acceptable form of ID, and that blacks and Hispanics are more likely to be disenfranchised by the law than whites. A federal court in Wisconsin struck down a similar voter ID measure this year, finding that it violated Section 2 of the Voting Rights Act of 1965. Until recently, most of the heavy lifting in voting rights challenges was done by Section 5—the part of the Voting Rights Act requiring designated states, counties, and municipalities with a history of discriminatory election practices to obtain federal “preclearance” before making changes to their voting laws. But that provision was struck down in June 2013 when the Supreme Court determined that the preclearance system was outdated and burdensome on the covered jurisdictions. There’s a growing sense that the laws achieve nothing good and possibly do something very bad.
Section 2 is aimed at practices that make it harder for minority voters to “participate in the political process” and “elect representatives of their choice.” Although it’s gone largely untested, there is some reason to believe that Section 2 may still become a helpful tool in the voting rights wars. To defeat Texas’ ID law under Section 2, the DOJ will have to prove discrimination—that the voter ID law makes it harder for some voters to vote—which is potentially a high standard for the government to meet.* (The case is expected to take months and is unlikely to be decided before the November election.)
Until now, the national debate about voter ID has unfolded on consistent and predictable lines. Supporters of voter ID contend that these laws are necessary to prevent the supposedly rampant vote fraud that takes place at the polls. In recent years, study after study has failed to show anything resembling rampant vote fraud, and of the little fraud that does happen, most seems to happen by way of absentee ballots, which ID laws such as the one being challenged in Texas can’t stop. Despite a growing sense that the laws achieve nothing good and possibly do something very bad, these voter ID laws have nevertheless been defended on the grounds that they prevent at least some fraud and will deter a few vote fraudsters in the future.