This may come as a surprise to
some people, but the 2014 mid-term election is rapidly approaching, with no
less important implications than previous elections since Barack Obama was
elected president in 2008. Republicans
are still the menace they’ve always been when it concerns the rights of all people—not just their insular, bigoted
constituency. Republicans always claim that they are for “individual” rights,
when the reality is that they and their constituency only support the
individual’s right to ignore or deny another individual’s rights—unless, of
course, it is guns and then it’s a Wild West free-for-all.
One of those most vital rights an
individual has in this country is the right to vote, and wherever Republicans
hold sway in state government, attempts have been made to pass so-called voter
ID laws, which are allegedly “good faith” efforts to prevent “non-citizens”
from casting ballots. The reality is that these laws are barely concealed
efforts to disenfranchise voters mostly minority and poor, since the
circumstances in which they live often makes what better off people take for
granted inaccessible. These people—unless, of course, they follow the
Republican siren call of scapegoating the most vulnerable, voiceless people—are
more like to find Republicans the enemy; thus Republicans have an “interest” in
suppressing their vote.
Two of the more insidious efforts
to disenfranchise voters were voter ID laws in Texas and Wisconsin. The
“requirement” to show photo ID for the most fundamental of all rights in this
country rather than simply a legally-acquired voter registration card may seem a
“common sense” measure to those who already possess a driver’s license, but I
do not know of a state that requires someone to produce their birth certificate
to obtain a driver’s license with a photo (the state of Washington doesn’t). But
according to the Texas and Wisconsin voter ID law, if you go down to the
licensing station for something other than a driver’s license, you have to
produce a birth certificate; a Social Security Number, work or student ID is
not applicable.
Many people in this
country—particularly older people—do have or have lost their birth
certificates, and some parents didn’t bother to obtain or keep those of their
children. Sometimes even if the voter does have a birth certificate, either
because of travel limitations or work hours they cannot obtain photo IDs—and
naturally more so if they don’t have driver’s licenses. The incongruity of
these laws are even more obvious when one observes that showing photo ID is not
required every time one uses a mail-in vote.
The Wisconsin law—approved by
Republican Gov. Scott Walker (who was the subject of a recall election) and the
Republican-controlled legislature—has been in the courts since 2011. It had
been blocked until the eleventh hour, when the 7th Circuit Court
with its largely Republican-appointee make-up stunned opponents by allowing the
law to stand for this election despite the fact they hadn’t decided on its
constitutionality. But the U.S. Supreme Court voted 6-3 to temporarily block
the law until it decides whether to take up the case; although no opinion was
given for blocking the law, it was clear that its going into effect so near to
the 2014 election when its constitutionality was still not decided likely
played into it.
In the Texas decision, U.S.
District Court Judge Nelva Gonzales Ramos left no doubt that the Texas voter ID
law was, in the opinion of the court, repugnant.
In this lawsuit, the Court consolidated four
actions challenging Texas Senate Bill 14 (SB 14), which was signed into law on May
27, 2011. The Plaintiffs and Intervenors (collectively “Plaintiffs”)3 claim that SB
14, which requires voters to display one of a very limited number of qualified
photo identifications (IDs) to vote, creates a substantial burden on the fundamental right to vote, has
a discriminatory effect and purpose, and constitutes a poll tax. Defendants4 contend
that SB 14 is an appropriate measure to combat voter fraud, and that it does not
burden the right to vote, but rather improves public confidence in elections and,
consequently, increases participation. This case proceeded to a bench trial, which
concluded on September 22, 2014. Pursuant to Fed. R. Civ. P. 52(a), after
hearing and carefully considering all the evidence, the Court issues this Opinion as its findings
of fact and conclusions of law. The Court holds that SB 14 creates an unconstitutional
burden on the right to vote, has an impermissible discriminatory effect against
Hispanics5 and African-Americans, and was imposed with an unconstitutional
discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll
tax.
Ramos spent much of his decision engaged in a litany of
transgressions in Texas attempting to deny minorities (mainly Latinos) of the
right to vote by some especially outrageous laws that hardly disguised their
purpose:
The careful and meticulous scrutiny of
alleged infringement of the right to vote, which this Court is legally required to
conduct, includes understanding the history of impairments that have plagued the right to
vote in Texas, the racially discriminatory motivations and effects of burdensome
qualifications on the right to vote, and their undeniable legacy with respect to the State’s
minority population. This uncontroverted and shameful history was perhaps summed up
best by Reverend Peter Johnson, who has been an active force in the civil rights
movement since the 1960s. “They had no civil rights towns or cities in the State of Texas
because of the brutal, violent intimidation and
terrorism that still exists in the State of
Texas; not as overt as it was yesterday. But east Texas is Mississippi 40 years ago.
Among these efforts to turn Texas into an oversized Mississippi included
the “white primary” law passed after Reconstruction, intended to prevent
non-white voters from voting in the state primary. Since the “solid South” was
essentially a one-party block for the next century, this meant that the winner
of the primary was essentially the winner regardless of who voted in the general
election—thus minority voters had de
facto no say in the result. It wasn’t until 1927 that U.S. Supreme Court
struck down this law as unconstitutional, and the Texas legislature responded
by allowing political parties to determine the “qualifications” required to
vote in their primaries—again with obviously arbitrarily-determined results.
This was law was also found to be clearly unconstitutional.
Then there was the Terrell Election Law, which prohibited
elderly or functionally illiterate people from casting votes with personal
assistance; only “election judges” representing the dominate extreme-right wing
of the Southern Democratic Party were allowed to “verify” votes, with
predictable results. This law was also struck down as unconstitutional.
Texas also included a poll tax in its constitution, which
intended to not just decrease minority participation, but that of “inferior”
whites. Although the 1964 Voting Rights Act abolished poll taxes in federal
elections, the Supreme Court was again obliged to rule as unconstitutional the
continuation of the poll tax in state elections. Not to be deterred, the Texas
legislature again sought to disenfranchise minority voters by forcing voters to
re-register every year; again this was ruled unconstitutional. Refusing to
learn its lesson, Texas passed a “purging” law to decrease voting turnout,
which this time was rejected by the Department of Justice, since Texas voting
laws were now under the purview of the Voting Rights Act.
But Texas racists would not be stopped. After the 26th
Amendment allowed those young enough to fight America’s wars to finally have a
voice on the policies that sent them there, college age students were not
allowed to vote while they attended a university outside their “official” place
of residence. This law was also struck down by a lower court, but a Waller
County prosecutor decided in 1992 to indict students from all-black Prairie
View A&M University for illegal voting anyways; threats by Department of
Justice ended that case. Waller County continued to be a thorn in the side of
the DOJ; in the run-up to the 2008 presidential election, the county passed
voting changes in which “incomplete”—however it chose to define that—ballots would
be arbitrarily rejected, and “volunteer” registrars had to “personally” locate
and inform voters of this “problem.” One suspects that only Republican voters
would be notified. Not only that, but the county also decided to throw in limits
to the number of new registrations that an individual registrar could submit,
just for “good measure.”
Does Texas’ sorry record of minority voter
disenfranchisement end there? What, are you daft? The Republican-dominated
state legislature has repeatedly ignored the Voting Rights Act in
redistricting—in which legislators admitted was done in an effort to
marginalize minority voting, and used the rationalization of combating “voter
fraud,” which has become merely a more “acceptable” euphemism for its
longstanding voting disenfranchisement efforts. Ramos continues
This history of
discrimination has permeated all aspects of life in Texas. Dr. Burton detailed
the racial disparities in education, employment, housing, and transportation,
which are the natural result of long and systematic racial discrimination. As a result,
Hispanics and African-Americans make up a disproportionate number of people living in
poverty, and thus have little real choice when it comes to spending money on anything
that is not a necessity. Minorities continue to have to overcome fear and
intimidation when they vote. Reverend Johnson testified that there are still
Anglos at the polls who demand that minority voters identify themselves,
telling them that if they have ever gone to jail, they will go to prison if
they vote. Additionally, there are poll watchers who dress in law enforcement-style
clothing for an intimidating effect. State Representative Ana Hernandez-Luna
testified that a city in her district, Pasadena, recently made two city council
seats into at-large seats in order to dilute the Hispanic vote and
representation. And even where specific discriminatory practices end, their
effects persist. It takes time for those who have suffered discrimination to
slowly assert their power. Because of past discrimination and intimidation,
there is a general pattern by African-Americans of not having the power to
fully participate. Other than to assert that today is a different time,
Defendants made no effort to dispute the accuracy of the expert historians’
analyses and other witnesses’ accounts of racial discrimination in Texas voting
laws—its length, its severity, its effects, or even its obstinacy.
That despite the fact that Latinos and blacks make-up
nearly 45 percent of the voting population in the state, yet only nine percent
of all state and local elected officials are Latino or black also tends to
indicate the continuing “success” of disenfranchising minority voters in Texas.
Although in theory Texas should be a left-leaning Democratic state with such a
high minority voting base, that is also true of Mississippi:
Instances of
campaigns relying on racial messages persist in Texas.41 For example, in a 2008
Texas House of Representatives race, an Anglo candidate sent a mailer featuring a
manipulated picture of his Anglo opponent. The opponent’s skin was darkened, a
Mexican flag button was superimposed on his shirt, and an oversized Chinese flag
was positioned directly behind him—all while questioning his commitment against
illegal immigration.42 Another example is a campaign mailer sent by an
Austin-based political action committee against an Anglo candidate running for
a Texas House of Representatives seat. The mailer, titled “Birds of a Feather
Flock Together,” featured black birds and the Anglo candidate surrounded by
various minority elected officials—the late Texas State Senator Mario Gallegos,
Congresswoman Sheila Jackson Lee, and President Barack Obama—with the caption
“Bad Company Corrupts Good Character.”
Dr. Burton offered
another example of a 2008 campaign mailer aimed at dissuading African-Americans
from voting. The mailer, sent to African-Americans in Dallas, Texas, warned
that a group suspected of voter fraud was trying to get people to the polls and
that “[p]olice and other law enforcement agencies [would] be at the voting
locations.” The mailer further stated that a victim of voter fraud could serve
jail time. This Court finds that racial appeals remain a tactic relied on by
Texas’s political campaigns. Defendants offered no controverting evidence on
this issue.
The judge took into account a study which showed that only
10 cases of in-person voter fraud between 2000 and 2010—in the entire country.
Dr. (Lorraine) Minnite’s
research found that sloppy journalism regarding voter fraud and officials
repeatedly suggesting that voter fraud has occurred have instilled a misconception
in the public. Press releases making allegations of voter fraud were often repeated
in news stories without having been verified, feeding a baseless skepticism about
election integrity. Looking at the pre-SB 14 procedures in place and the rarity
of in-person voter impersonation fraud, she concluded: “So SB 14 doesn’t add
anything, in my opinion, to what we already have in place.”
The judge also took into account that those defending the
law in court could produce no evidence themselves in court of voter fraud.
The
judge noted that Texas’ voter ID law is the strictest and hardest law of any
state to comply with, and makes it much easier and quicker to reject provisional
ballots. Not only that, but one could regard this and all voter ID laws as an unconstitutional poll tax, and for that
reason they all should be rejected.
Why is this? If you don’t have a birth certificate
handy in Texas, but it is on record with DSHS or the county registrar, it will
cost $47 for the search fee and a certified copy made. Then you have to get the
photo ID: An additional $25.This means that if you don’t have a birth
certificate or a driver’s license, it will cost you up to $72—and this doesn’t
include the cost of a driver’s training
course if needed—or wages lost if this can only be done on work day.
Even
if you only obtain a personal identification card, that can cost up to $63. A
citizenship certificate with photo in order to vote can cost up to
$680—obviously useful in diluting the Latino vote.
The
judge was also outraged by the fact the Republican-dominated Texas Senate
followed Gov. Perry’s admonition to hurry through the photo ID law in the
run-up to the 2012 election (in which he would be running in primaries as a
Republican presidential hopeful), and decided for just this issue to block a Senate
rule requiring a 2/3 vote to allow the issue to bypass “ordinary order of
business.”
It
was also noted, as one expert noted that because Latinos now represent the
majority of students in Texas’ public schools. “voter
restrictions tend to arise in a predictable pattern when the party in power perceives a threat of minority voter
increases.”
As for alleged “fear” of voting by illegal immigrants
Representative
Hernandez-Luna testified convincingly that illegal immigrants are not likely to
try to vote. “They are living in the shadows. They don’t want any contact with the
government for fear of being deported because that—I mean, my family was afraid to even
go grocery shopping much less attempt to illegally vote.” Instead, the issue of
non-citizen voting appears related to citizens who have confused the voter registration
records because, when they are summoned for jury duty, they deny their citizenship in
order to be exempt from service. So that “non-citizen” report filters into voter records
despite the fact that it is false.
The bizarre claim that the law would actually increase
voting because there would be more “confidence” in the system brought the
suitably sarcastic remark that no one was aware that that anyone did not vote
because of a “concern” about voter fraud. In fact, the law would decrease voter
participation because it would “decrease voter turnout because it increases the
cost associated with voting. Because the poor are more sensitive to cost issues…raising
the cost of voting would almost certainly decrease voter turnout, particularly
among minorities. Dr. Hood admitted that
it was a firmly established political science principle that increased costs of
voting are related to decreased turnout, which could be expected with respect
to the cost of obtaining an EIC unless some other factor outweighed it for the
voters.”
It was also determined that a significant number of
eligible voters could not vote if the law went into effect. “Several experts
were tasked with determining the number of registered voters who might lack SB
14 ID, along with their demographic characteristics. Based on the testimony and
numerous statistical analyses provided at trial, this Court finds that approximately
608,470 registered voters in Texas, representing approximately 4.5% of all registered
voters, lack qualified SB 14 ID.”
In the end, the court ruled in favor of the plaintiffs
based on the fact that
SB 14 Creates a
Discriminatory Result. This Court finds that Plaintiffs have met their burden
of proving that SB 14 produces a discriminatory result that is actionable because SB 14’s
voter ID requirements interact with social and historical conditions in Texas to cause an
inequality in the electoral opportunities enjoyed by African-Americans and Hispanic
voters as compared to Anglo voters. In other words, SB 14 does not disproportionately
impact African-Americans and Hispanics by mere chance. Rather, it does so by its
interaction with the vestiges of past and current racial discrimination. SB 14 results in
the denial or abridgement of the right of African-Americans and Latinos to vote on account
of their race, color, or membership in a language minority group in violation of
Section 2 of the Voting Rights Act.
And
SB 14 Has a Discriminatory Purpose--Voting
Rights Act, Section 2 and 14th and 15th
Amendments Plaintiffs challenge SB 14 on the basis that it was
enacted with a discriminatory purpose under the VRA and the 14th and 15th
Amendments. While the United States proceeds under VRA Section 2 and the
remaining Plaintiffs proceed under both Section 2 and the
constitutional provisions, the rubric for making a determination of a discriminatory
purpose is the same. Discriminatory intent is shown when racial discrimination
was a motivating factor in the governing body’s decision. Discriminatory
purpose “implies more than intent as volition or intent as awareness of consequences.
It implies that the decision maker . . . selected or reaffirmed a particular course
of action at least in part ‘because of,’. . . its adverse effects upon an
identifiable group.” In the final analysis, discriminatory purpose need not be
the primary purpose of the official act for a violation to occur as long as it
is one purpose. The Court does not attempt to discern the motivations of
particular legislators and attribute that motivation to the legislature as a
whole. Instead, to determine intent the Court considers direct and
circumstantial evidence, “including the normal inferences to be drawn from the
foreseeability of defendant’s actions.”
And
SB 14 Constitutes
an Unconstitutional Poll Tax—24th and 14th Amendments The 24th Amendment
provides that a citizen’s right to vote in a federal election may not be
“denied or abridged by the United States or any State by reason of failure to
pay any poll tax or other tax.” The 24th Amendment “nullifies sophisticated
as well as simple-minded modes of impairing the right guaranteed.” A
statute also violates the 24th Amendment if “it imposes a material
requirement solely upon those who refuse to surrender their
constitutional right to vote in federal elections without paying a poll tax.”
In Harper
v. Virginia State Board of Elections, the Supreme Court extended the ban on poll taxes
to state elections, using the Equal Protection Clause of the 14th
Amendment. Specifically, the Court held that a State may not use “the
affluence of the voter or payment
of any fee [as] an electoral standard” because “wealth or fee paying has . . .
no relation to voting qualifications.” In finding that a $1.50 poll tax for
state elections violated the Equal Protection Clause, the Harper Court held that “[t]he degree of
the discrimination is irrelevant.”
For at
least this election cycle, voting rights are “safe”—but for how long?
Apparently not for long; soon afterwards the U.S. Supreme--unimpressed by history, facts and figures--allowed the Texas law to go into effect. The law and ones similar to it was blamed for the lowest voter turnout in the country in a midterm election since 1942. 22,000 voters were turned away in Kansas because they didn't have the "proper" identification--this despite the fact that evidence of illegal voting was almost non-existent when these voter ID laws were passed. Republicans took control of nine more states, which again proves that increasingly the Republican Party is becoming the party of white people--women as well as men. Beginning next year, I'm going to start calling the Republican Party the "White People's Party."
