Opinion

Carl Leubsdorf: Supreme Court’s next move will reveal true intent on voting rights

The Obama White House won’t name a new attorney general or issue an executive order on immigration until after the Nov. 4 midterm elections. But other federal government branches are also delaying politically explosive decisions.

Before going home to campaign, Congress sidetracked a number of divisive measures. So, too, has the Supreme Court. Recently, it allowed restrictive new voter laws requiring photo IDs to be used this year, including the controversial Texas measure a lower court just ruled unconstitutional and North Carolina and Ohio laws limiting early voting. But those rulings were short-term; its ultimate verdict on their legality is some months off.

Reaching that decision should force the justices to confront increasing evidence their 2013 decision invalidating a key section of the Voting Rights Act opened the way for Republican governors and legislatures to pass laws making voting more difficult for minorities in the name of curbing non-existing voter fraud.

Two recent opinions make a powerful argument these laws are designed less to minimize fraud than to achieve political ends. Especially compelling is the fact they were written by two judges with dissimilar backgrounds who reached quite similar conclusions.

One was the 147-page ruling by U.S. District Judge Nelva Gonzales Ramos of Corpus Christi, an appointee of President Barack Obama, declaring the Texas voter ID law is “an unconstitutional burden on the right to vote,” discriminates against Hispanics and African-Americans, and is, in effect, “an unconstitutional poll tax.”

The other was a 43-page dissent in a Wisconsin case by U.S. Appeals Judge Richard Posner, the judge who had written the 2007 opinion in an Indiana case the Supreme Court adopted in legalizing state voter ID laws.

Both judges concluded such measures would do little to limit fraudulent efforts to vote, noting evidence showing it is a minimal problem. Both cited political motivations behind such laws, passed primarily by conservative Republican governors and legislatures to limit voting by minorities.

Voter ID advocates who continue to cite the Indiana case ignore last year’s remarkable reversal by Judge Posner, a highly regarded conservative appointee of President Ronald Reagan. He concluded his 2007 opinion had been wrong, noting such laws are “now widely regarded as a means of voter suppression, rather than of fraud prevention.”

In dissenting from a Court of Appeals decision allowing implementation of Wisconsin’s voter ID law (delayed later by the Supreme Court), Posner did not directly retract his earlier opinion.

Rather, he said Indiana’s law is “less restrictive” than Wisconsin’s, citing eight individuals who testified that, despite considerable effort, they were unable to obtain the necessary Wisconsin documents.

And he showed that all states establishing strict photo ID laws “are politically conservative, at least at the state level,” concluding “the net effect of such requirements is to impede voting by people easily discouraged from voting, most of whom probably lean Democratic.”

Judge Ramos’ opinion traces in meticulous detail Texas’ decades-long efforts to limit minority voting by poll taxes, voter ID laws and skewed legislative and congressional redistricting plans repeatedly ruled unconstitutional.

“In each instance, the Texas Legislature relied on the justification that its measures were necessary to combat voter fraud,” she wrote.

But the only voter fraud the current law addresses “is voter impersonation fraud, which the evidence demonstrates is very rare.”

In the last 10 years, she notes, Forrest Mitchell of the state attorney general’s law enforcement division testified, “only two cases of in-person impersonation fraud were prosecuted to a conviction” during a time in which 20 million votes were cast.

“In contrast, there appears to be agreement that voter fraud actually takes place in abundance in connection with absentee balloting,” which the law doesn’t address, she added.

To support her contention that Texas places an impermissible burden on prospective voters, she noted that it allows far fewer kinds of identification than other states, and that many of those avenues require substantial costs.

When the Supreme Court threw out the Voting Rights Act provision requiring certain states to obtain Justice Department pre-clearance of voting law changes, it retained a provision allowing individuals or groups to challenge discriminatory voter laws.

How the court handles the Texas challenge will show whether its purpose was to update the law or cripple it.

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