Shyama Venkateswar Distinguished Lecturer, Hunter College and Director, Public Policy Program, Roosevelt House

Posted on October 17, 2014 · Posted in Frank Friday

With mid-term elections barely three weeks away, a bitter partisan battle is being fought not just over the control of the Senate but also over voting rights of ordinary people. While the Republicans have increased their lead in key battleground states – Alaska, Arkansas, Colorado, Iowa, Louisiana and North Carolina – U.S. Courts have been busy hearing cases about the constitutionality of voter ID laws. The Supreme Court’s and the Fifth Circuit Court of Appeals’ recent decisions in Wisconsin and Texas have made clear that rules are best not changed so close to an election because of the inevitable chaos that will result, but clearly indicating that this is only a temporary respite in the long litigation ahead for both sides.

For over a decade now, Republicans have tried to make stricter rules for voting and insisting that it will help to prevent fraud and perhaps even increase voter turnout. Instead, data shows that requiring ID cards have effectively deterred voters. A recent report from the Government Accountability Office found that in states like Kansas and Tennessee, voter turnout decreased by 2 percent to 3 percent as a result of the ID requirement. More recently, some states have made it more difficult for college students to vote in the state in which they are studying; while a state handgun license is acceptable at some polling stations, student ID cards, including those issued by state universities, and out-of-state driver’s licenses are not.

Voting rights advocates, however, have maintained that voter ID laws have kept eligible voters away by creating barriers that disproportionately impact African-Americans, Hispanics, and the poor, who are likely to vote Democratic. These groups often lack the resources or the information required to file for necessary document that would allow them to cast their vote. In a recent opinion, Federal District Judge Nelva Gonzales Ramos ruled that SB 14, the strict voter ID law in Texas was unconstitutional on several grounds: it violated the Equal Protection Clause and the Voting Rights Act; it also violated the 24th Amendment that prohibited poll taxes by forcing voters to pay for identification documents. Within days, however, the Fifth Circuit Court of Appeals reversed her ruling and required all voters to comply with the ID requirement in order to vote, a decision that could possibly affect about 600,000 Texans or about 4.5 percent of all registered voters.

Voting is a sacred right in the United States enshrined in the 15th Amendment of the Constitution, although not fully realized or enforced until the historic Voting Rights Act of 1964 which helped to push for minority voter registration, access to the ballot, and integration in the electoral process. However, Supreme Court decisions have steadily erased protections against racial discrimination in Americans’ right to vote. A ruling in 2013 by the Supreme Court found Section 4 of the Voting Rights Act unconstitutional: the formula that determines which states and localities must be precleared by the Justice Department or a federal court before any changes in voting laws – whether voting procedures or redrawing electoral districts – can go into effect. Citing that the 40-year old formula to be “obsolete statistics,” the majority opinion argued that the country was markedly different since the Voting Rights Act was passed and that it was up to Congress to remedy the problem by taking into account current conditions in states with a history of discrimination and creating a new formula for protections of their minority populations. By striking down Section 4, the Supreme Court was essentially making Section 5 of the Voting Rights Act, the preclearance requirement, unenforceable.

For Congress to create a new formula, as suggested by the Supreme Court in its 2013 ruling, that takes into account current barriers to voting as well as identifies subtle or overt patterns of discrimination is being overly optimistic in the current political climate of entrenched partisanship. The midterm elections in a few weeks may see a dramatic shift in the balance of power in Washington. If Democrats lose the Senate – polls place the probability of Republican victory between 71 percent and 96 percent – the possibility to pass legislation to once again protect vulnerable communities from discrimination in voting might become remote.

The writing and opinions expressed herein are those of the authors and do not necessarily reflect the positions of the Roosevelt House Public Policy Institute or Hunter College.