Portside

This weekend, U.S. Supreme Court reporters pulled an all-nighter waiting for the ruling on whether Texas’ new voter photo ID law, which may prevent up to 600,000 otherwise eligible voters from casting ballots this fall, would be allowed go into effect today.

The reporters were up until 5am on Saturday because Justice Ruth Bader Ginsberg and the Court’s other women, Sonia Sotomayor and Elena Kagan, were writing a dissent after the rightwing majority, voted—without writing a single word of comment—to let it take effect on Monday, when early voting in Texas begins.

It is not the only voting rights litigation that will affect who can vote in the midterm elections this fall. There is Georgia’s refusal to process more than 50,000 voter registrations from a minority voter drive. But as Ginsburg’s blistering 7-page dissent made clear, the fight over Texas’s voter ID law is in a class by itself. That’s because a lower federal court held a trial and found that the law’s intent was to discriminate and disenfranchise, calling it a “poll tax,” and then that record was ignored by higher federal appeals courts—including the Supreme Court.

“Texas did not begin to demonstrate that the Bill’s discriminatory features were necessary to prevent fraud or to increase public confidence in the electoral process,” Ginsburg wrote in her dissent. What follows are the 12 major points she wrote:

1. This was a dispute about facts not fears. Unlike many other voting rights lawsuits, civil rights attorneys in this case did not sue without showing that there were real victims and harm. Ginsburg noted that important distinction writing that there had been a “full trial and resting on an extensive record from which the District Court found ballot-access discrimination by the State.”

2. But the Fifth Circuit Appeals Court ignored that. That’s right, judges in the first tier in the federal appeals court process decided to ignore the factual record. “The Fifth Circuit’s refusal to home in on the facts found by the district court is precisely why this Could should vacate the stay.” (This case came to the Supeme Court because the Fifth Circuit ignored the district court and ruled that the voter ID law could take effect.)

3. Texas’ previous voter ID requirements are ample. Ginsburg noted that the state would not be left without any legal means to ensure eligible voters were getting ballots at polling places. “Texas need only reinstate the voter identification procedures it employed for 10 years (from 2003 to 2013) and in five federal elections.”

4. Texas officials have not informed the public about the new law. There has been a lack of public education about the new law, which will lead to confusion at the polls as it is implemented, Ginsburg noted. “The District Court found “woefully lacking” and “grossly” underfunded the State’s efforts to familiarize the public and poll workers regarding the new identification requirements.”

5. The state is to blame for confusion at the polls. Ginsburg said the state, which claims it needs the stricter photo ID laws to protect the process’ integrity, will instead be to blame for creating chaos and confusion. “In short, any voter confusion or lack of public confidence in Texas’ electoral process is in this case largely attributable to the State itself.”

6. The law concerns only polling place voting. This is an easily overlooked point, because the stricter voter ID laws do not effect people who vote by mail—which often is the way the Republican Party tries to turn out its base—but only people who show up at polling places. “The bill requires in-person voting to present one of a limited number of government-issued photo identification documents,” she wrote, noting that this list is narrower than what is accepted in other states, citing Wisconsin.

7. Hundreds of thousands of Texans will have a hard time getting the ID. The ID law says that Texans can get a state-issued photo ID from police, but only in certain locations. “Those who lack the approved forms of identification may obtain an “election identification certificate” from the Texas Department of Public Safety (DPS), but more than 400,000 eligible voters face round-trip travel times of three hours or more.”

8. The trial court found that impact racist and discriminatory. “On an extensive factual record developed in the course of a nine-day trial, the District Court found Senate Bill 14 [the voter ID law] irreconcilable with Section 2 of the [federal] Voting Rights Act of 1965 because it was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result.”       

9. Texas Republicans have a reason to stop minority voting. Ginsburg noted the motive behind the tougher ID law, which is that the state’s ruling class of mostly white Republicans is less and less representative of the state’s population as a whole.“In light of the “seismic demographic shift” in Texas between 2000 and 2010, making Texas a “majority-minority state,” the District Court observed that the Texas Legislature and Governor had an evident incentive to “gain partisan advantage by suppressing” the “votes of African-Americans and Latinos.”

10. Voter in-person fraud—the law’s rationale—is almost non-existent. The Republicans have been able to pass tougher voter ID laws because they cite a fear that people are showing up and the polls and voting more than once. Ginsburg noted that very claim was utterly exaggerated, saying, “Between 2002 and 2011, there were only two in-person voter fraud cases prosecuted to conviction in Texas.”

11. There is no reasonable basis for a tougher voter ID law. Ginsburg noted that the law is a solution for a problem that doesn’t exist, saying, “Texas did not begin to demonstrate that the Bill’s discriminatory features were necessary to prevent fraud or to increase public confidence in the electoral process.”

12. The law is correctly called a poll tax. That term is from the Jim Crow era, where white southerners imposed unreasonable hurdles and costs on minorities to prevent them from voting. “Under Senate Bill 14, a cost attends every form of qualified indentification available to the general public,” Ginsburg wrote. “Senate Bill 14 may prevent more than 600,000 registered Texas voters (about 4.5 percent of all registered voters) from voting in person for lack of compliant identification. A sharply disproportionate percentage of those voters are African-American or Hispanic.”