An intensifying conservative legal assault on the Voting Rights Act could precipitate what many civil rights advocates regard as the nuclear option: a court ruling striking down one of the core elements of the landmark 1965 law guaranteeing African Americans and other minorities access to the ballot box.[...]I humbly submit, Prof. Hasen, that they are racists. The difference between now and five years ago is that the racists are emboldened because they know that they now run an entire political party. They know that no Republican candidate for president can get anywhere without sounding the dog whistle loudly and proudly. They know that the Southern Strategy to suppress minority votes might now be on its way to being given legal blessing.
“There certainly has been a major change,” said Rick Hasen, a professor of election law at the University of California at Irvine. “Now, you have a whole bunch of credible mainstream state attorneys general and governors taking this view. … That would have been unheard of even five years ago. You would have been accused of being a racist.”
Let's get some things straight. There should be nothing controversial about the Voting Rights Act. It is based on the 15th Amendment, which guarantees the right to vote regardless of color, race or previous condition of servitude. The part of the Voting Rights Act that the GOP state attorneys general and governors are challenging is the key enforcement mechanism, or Section 5 - the requirement that certain states and localities with ugly Jim Crow history get approval of the US Justice Department before changing their voting laws. They want to argue that there's no longer a need for it, since everything is now hunky dory and there is no longer any disadvantage to African Americans and other people of color in those areas in terms of voting. So they should have their 'state's rights' returned to them and be allowed to change their voting laws without prior approval.
Let's look at what the these states are trying to do. Hmm, I wonder. Have these states done anything lately to try to restrict the voter participation of minorities?
In December, a Justice Department ruling barred the state from enacting the law, citing the 1965 Voting Rights Act and concerns that new provisions could discourage nearly 82,000 registered minority voters the state has identified as not having any state-issued identification. -USA Today, 2/8/2012.A lot of right wingers will tell you that there is nothing wrong with requiring an ID to vote, to prevent "voter fraud." But the fact of the matter is that voter fraud is essentially a myth, and even the most ardent proliferators of this myth were able to find only 311 total prosecutions (not convictions) on voter fraud charges in the last 15 years. For perspective, consider that over 131 million ballots were cast in the presidential election in 2008 alone. In other words, the odds are better that someone get struck by lightening than someone be even accused of committing voter fraud.
"Voter fraud" is not a problem in the United States. And the voter ID laws are a solution in search of a problem. It is manufactured, and that it is manufactured is shown by the right wing legislators who are passing these laws without regard to the elderly, students, the poor and minorities. As a New York Times editorial from October 2011 notes,
Of course the Republicans passing these laws never acknowledge their real purpose, which is to turn away from the polls people who are more likely to vote Democratic, particularly the young, the poor, the elderly and minorities. They insist that laws requiring government identification cards to vote are only to protect the sanctity of the ballot from unscrupulous voters. Cutting back on early voting, which has been popular among working people who often cannot afford to take off from their jobs on Election Day, will save money, they claim.Obtaining a photo ID is not the simplest of processes. And the legislatures passing voter ID laws are doing nothing to make that process any simpler. If an elderly woman needs to get a voter ID card and cannot travel to the nearest DMV office on her own, will, say, the state of South Carolina, do anything to help her? What about someone who has to work hours that make it impossible for them to make it to a DMV office? Is the state going to require that employers give their employees paid time off to go get an ID? Of course not.
None of these explanations are true. There is almost no voting fraud in America. And none of the lawmakers who claim there is have ever been able to document any but the most isolated cases. The only reason Republicans are passing these laws is to give themselves a political edge by suppressing Democratic votes.
The most widespread hurdle has been the demand for photo identification at the polls, a departure from the longstanding practice of using voters’ signatures or household identification like a utility bill. Seven states this year have passed laws requiring strict photo ID to vote, and similar measures were introduced in 27 other states. More than 21 million citizens — 11 percent of the population — do not have government ID cards. Many of them are poor, or elderly, or black and Hispanic and could have a hard time navigating the bureaucracy to get a card.
There's also the very practical issue that a signature verification of a voter is a far more reliable way to identify whether the voter is who she says she is than a state issued ID. You may look like your brother, but I doubt you can copy his signature.
How real is the threat to the Voting Rights Act?
Dan Tokaji, a professor of election law at Ohio State, said the chances the high court will strike down the core of the law are “between likely and extremely likely.”If the Voting Rights Act is overturned, states and localities with a history of denying voting rights based on race can go back to many of their old practices. Poll taxes and literacy tests may now be Constitutionally banned, but these states would be free to tamper with limiting or eliminating early voting, changing polling places without the voters' knowledge, not allowing students to vote in their college town, or even deciding where to open DMV offices and where to close them based on how to make it the most difficult for likely Democratic and minority voters.
“They know striking the statute down would be incredibly controversial. … It would be an even bigger deal than what the court did in Citizens United,” Tokaji said.
If the key provision were removed, he said, “I don’t think we would go back to the days of Jim Crow. We wouldn’t have literacy tests or other of the most blatant disenfranchising devices used in 1965. On the other hand, it would be easier for states to enact more subtle measures that make voting more difficult and that dilute the vote. … The impact will probably be most significant at the local level [where] a lot of things might slip by without anyone noticing it.”
Even if what they do run afoul of the Constitution, it will be left up to the scant resources of poor people and minorities to challenge those laws in court, having eliminated a direct Justice Department approval requirement.
And are poll taxes and literacy tests really banned? What if you are not destitute, a citizen, and live under situations under which you do not need a photo ID in your day-to-day life? Some voter ID legislation in the pipe right now even require anyone who is not destitute to pay extra to obtain a state-issued ID. Welcome to the modern day poll tax. What if a voter has trouble reading the application for a state-issued ID - because of a language barrier, learning disability or literacy issues? You're out of luck. Welcome to the modern day literacy test. Unless state laws make provisions to address these very real issues - and they almost never do - we are talking about modern day Jim Crow.
The assault on the right vote is real. We stand on the edge of losing the progress we have made as a country on civil rights for over the past 40 years. Let this be a warning. Let this be a lesson for all of us. Let every last one of the people claiming to be on the "Left" think about this before they go out again and spread the false equivalence of Democrats and Republicans.