Some thoughts on the eve of oral argument in Veasey v. Perry
As you may know, tomorrow (April 28), a three-judge panel of the 5th Circuit Court of Appeals in New Orleans will hear oral argument in Veasey v. Perry. Texas has appealed the trial court’s damning conclusion that the State had used its voter I.D. law to enact a deliberately racially discriminatory barrier to voting.
Back in March, as the April 1, 2015 deadline for its reply brief loomed, the State asserted that it would only need 11,500 words to successfully argue that its draconian picture I.D. law wasn’t targeting minorities. After all, it wouldn’t take much paper to say that Texas’ voter I.D. law is more universally and generally horrible than merely racist. It doesn’t just discriminate against protected racial and language minority groups – it also discriminates against elderly voters, student voters, the poor, voters with disabilities, and inconveniences or hinders voting in general for everyone.
And there’s the State’s argument on appeal – which I shall broadly and meanly paraphrase as follows. “This law is so bad, it can’t possibly have been motivated by mere racial animus. We just hate all voters.” (That’s actually the second part of the State’s argument. The first part is, “well … all the people who were disenfranchised should have just voted by mail.” Unfortunately for the State, that’s a terrible argument, in part because it violates equal-rights provisions of the 14th Amendment. In fact, it’s such a self-destructive “shot in the foot” argument that everyone else feels a little sorry for the State’s litigators for being forced to repeat it. I mean … they do know that equating voting by mail with in-person voting is sort-of cringe inducingly bad form in civil rights litigation, right?)
Embarrassingly, the powers-that-be at the Texas Solicitor-General’s office dawdled a bit over the crafting of their succinct brief, and accidentally filed it a few minutes after midnight on April 2nd. These things happen, and nobody (other than me) felt particularly inclined to capitalize on the minor technical error in order to gently ridicule the already hapless appellant.
On a more serious note, people interested in same-day coverage of tomorrow’s oral argument should contact Erik Opsal at the Brennan Center.
Erik Opsal
Communications Manager
646.292.8356
erik.opsal@nyu.edu
Finally, for a nice perspective on why the international reputation of the United States currently hangs in the balance over voting rights, here’s a nice paper by Patricia Broussard, published as part of a recent symposium on the Voting Rights Act conducted by the Journal of Race, Gender and Ethnicity. “Eviscerating the Voting Rights Act and Moral Authority: Freedom to Discriminate Comes With a Price” (Journal of Race, Gender and Ethnicity, Volume 7, No. 1, Fall 2015)
Historical Survey of Voting Discrimination Confirms the Disastrous Short-Sightedness of the Roberts Court
We all knew that Shelby County v. Holder was wrongly decided, and now we have more data to add to the mountain of statistical evidence of why preclearance under Section 5 of the Voting Rights Act was so important.
Check out today’s editorial in the New York Times: “Voting Rights: By the Numbers.” An October 2014 statistical survey by J. Morgan Koussler (available at Social Science Research Network or SSRN) confirms that discriminatory practices relating to voting are more common in the jurisdictions covered by Section 5 of the Voting Rights Act under the old formula, and that while voter turnout and minority participation might seem to be a fairly blunt instrument on which to base social engineering, it was a pretty good proxy for determining where actual racial exclusions from voting were being perpetrated.
Not for nothing, but I’d like to point out that just about anybody with an interest in the preservation of voting rights for minority voters should be pushing for a renewal of the preclearance process. Congress needs to legislate away the awful Shelby County v. Holder decision.
And … I’d point out with just a hint of impatience that there are lots of potential interim solutions that might serve at least as stopgap measures to limit the appalling current trespasses against our voting rights. My own suggestion is to bootstrap preclearance into the administration of the Civil Rights Act of 1964.
I get why my suggestion might not be one that the Justice Department is enthusiastic about – there are budget issues to be concerned about, and the physical staffing of the Voting Rights section of the Civil Rights division is a politically charged topic; any attempt to create modest election procedure reporting requirements for U.S. jurisdictions will doubtless draw howls of protest from the very jurisdictions that most desperately need to be scrutinized.
But the damage done by the Supreme Court isn’t going to magically fix itself – if Congress can’t pass a renewed Voting Rights Act (as it clearly can’t in its current status as the least functional branch of government), the only remaining avenue for reform is through administrative rule-making and executive action.
C’mon – you have to admit that some form of recordkeeping relating to changes in election procedures is better than what we have available right now, which is just a hodgepodge of piecemeal, bespoke civil rights lawsuits that are expensive and limited in effect.