Why Voter ID Is Racial Discrimination, for the Record

A panel of 15 judges for the Fifth Circuit U.S. Court of Appeals ruled 9-6 Wednesday that a photo voter-ID law passed by Texas almost five years ago discriminates against people of color. The Texas law, SB 14, would allow the use of drivers licenses and gun licenses to vote, but not college IDs. Experts testified in the years-long court battle over the law that it would potentially disenfranchise upwards of 600,000 eligible voters.

Most of the disenfranchised would be Latino and African-American voters who are unable to get the ID cards required to vote due to poverty, lack of transportation, and the state’s overall history of racism at the polls. This is why a district court ruled last year that the voter ID law violated the federal Voting Rights Act, as it did in 2012. Those cases were appealed, but Wednesday’s ruling from the Fifth Circuit appeals court mostly upholds those findings.

Still, the state of Texas has argued that it is not responsible for the legacy of economic and transportation inequalities that prevent voters from getting the ID needed to vote. The Fifth Circuit majority disagreed, and addressed this argument head on in a key footnote in its 203-page ruling:

Some of the dissenting opinions argue that the majority opinion holds the Legislature “liable for racial disparities [it] did not create” by failing to show that the statistical disparity in ID possession among different races is caused by a State policy, as opposed to socioeconomic and historical conditions. In fact, as discussed above, the district court found that SB 14 creates a racial disparity by requiring the use of certain IDs to vote that minorities disproportionately lack. Certainly the passage of SB 14 did not cause fewer minorities to possess certain IDs (like driver’s licenses or concealed handgun licenses). Rather, the district court found that socioeconomic and historical conditions contributed to this disparity in ID possession, which demonstrates why historical evidence of racism is relevant to the Section 2 analysis.

But SB 14 itself caused minorities to disproportionately lack the documentation that is required to vote by dictating that the documents and IDs required would be those that minorities disproportionately lack. We cannot ignore that in passing SB 14, the Legislature carefully selected the types of IDs that would be required to vote. In doing so, the Legislature selected IDs that minorities disproportionately do not possess and excluded IDs that minorities possess in greater numbers, without providing sufficient justification for those choices.

The fact that this occurred on a landscape where minorities are less likely to possess certain forms of ID or be able to obtain those IDs, at least in part as a result of past instances of State-sponsored discrimination, does not absolve the Legislature of responsibility. Accordingly, the district court’s conclusion that SB 14 created racial disparities in the possession of IDs required to vote is supported by the record.

Wednesday’s ruling doesn’t totally overturn the photo voter-ID law. Instead, the court has ordered Texas to come up with some safety nets to help voters who lack ID in the upcoming November elections. That could mean something like what a federal court called for in a ruling on Wisconsin’s voter ID law just a day prior to this ruling. In that case, a judge said that the state must offer voters the option of signing a sworn affidavit confirming their identity under oath if they lacked the ID required to vote.

“[A]lthough most voters in Wisconsin either possess qualifying ID or can easily obtain one, a safety net is needed for those voters who cannot obtain qualifying ID with reasonable effort,” wrote Judge Lynn Adelman in that July 19 ruling. “The plaintiffs’ proposed affidavit option is a sensible approach that will both prevent the disenfranchisement of some voters during the pendency of this litigation and preserve Wisconsin’s interests in protecting the integrity of its elections.”

Collectively, though, there’s still no final verdict on whether voter ID laws are constitutional or not. Voter ID laws will still go forward in Wisconsin and Texas this November, but these states are now being forced to reckon with the racial injustice embedded in them. Earlier this year, a group of political scientists from the University of California, San Diego, found considerable evidence that these laws make it harder for black and Latino voters at the polls. A federal court will soon decide the fate of voter ID in North Carolina, where researchers say a photo-ID requirement and other poll restrictions have created an apartheid-like landscape.

Meanwhile, the record against voter ID is pretty overwhelming at this point. And while the federal appeals court in Texas is unsure about the intentions behind voter ID laws, the proponents of those laws have been pretty clear about them. Black and Latino voters tend to vote largely for Democrats. So restricting their voting access by requiring instruments that a lot of those voters don’t carry blunts their electoral power. Below is a list of voter-ID supporters, all Republican, who’ve spoken candidly and on the record about this over the past few years:

“I believe the [voter] ID issue should be used (now) at all levels—federal, state legislative races. … You are not going to find a better wedge issue. … This is the single best wedge issue, ever in New Mexico.” —Republican Party attorney Pat Rogers October  24, 2008

“Photo I.D. laws can prevent illegal aliens from registering and voting. … I think the very next stage after photo I.D. is going to be states putting in requirements that you prove citizenship when you register to vote, to also try to solve that problem.”—Heritage Foundation’s manager of Election Law Reform Initiative manager and senior legal fellow for Heritage Foundation, Hans von Spakovsky, March 21, 2012

“Pro-Second Amendment? The Castle Doctrine, it’s done. First pro-life legislation – abortion facility regulations – in 22 years, done. Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done.” Pennsylvania State Rep. Mike Turzai,  June 25, 2012

“I don’t believe any legitimate voter that actually wants to exercise that right and takes on the according responsibility that goes with that right to secure their photo ID will be disenfranchised. As Mitt Romney said, 47% of the people that are living off the public dole, living off their neighbors’ hard work, and we have a lot of people out there that are too lazy to get up and get out there and get the ID they need. If individuals are too lazy, the state can’t fix that.” —Pennsylvania State Rep. Daryl Metcalfe, Sept. 19, 2012

“A lot of us are campaign officials—or campaign professionals—and we want to do everything we can to help our side. Sometimes we think that’s voter ID, sometimes we think that’s longer lines—whatever it may be.” —GOP consultant Scott Tranter, December 11, 2012

“We cut Obama [votes] by five percent … I think voter ID helped a bit in that.”  Pennsylvania Republican Chairman Rob Gleason, July 16, 2013

"If it hurts a bunch of college kids that's too lazy to get up off their [rears] and get a photo ID, so be it. … Democrats fear that the voter regulations will hurt them, as it will disenfranchise some of their special voting blocs … I tell you that within itself is the reason for photo voter ID.”—former North Carolina Republican Party executive Don Yelton, October 24, 2013

“Now we have photo ID, and I think photo ID is gonna make a little bit of a difference as well.”—Wisconsin Rep. Glenn Grothman, April 6, 2016