Judging by the tone of oral arguments in Northwest Austin Municipal Utility District No. 1 v. Holder last week, the Supreme Court appears poised to strike down a key provision of the Voting Rights Act.
It couldn't come at a worse time.
Several justices gave the impression during questioning on April 29 that they regard discriminatory election practices as ancient history. In fact, a wave of restrictive voter ID and citizenship requirements, both pending and enacted at the state level, threaten to erect a new generation of barriers to minority voters.
Polls show that a majority of voters favor voter ID laws, but it's not the mainstream majority of voters who are at risk.
Controversial voter ID laws have been taken up in nine states this year, including Alabama, Mississippi, South Carolina and Texas -- all states covered by the section of the Voting Rights Act now facing constitutional challenge. Some state legislatures are also considering laws requiring voters to show proof of citizenship before registering and/or voting.
Section 5 of the Voting Rights Act, enacted in 1965 during the era of poll taxes and other discriminatory barriers to voting, requires certain states and regions to win approval, or pre-clearance, from the Justice Department before changing their election practices. That means that states now covered by the law may not enforce new voter ID or citizenship rules without Justice Department clearance. The current case, known as NAMUDNO for short, was filed three years ago by a small Texas utility district that wanted access to an exemption that allows states to "bail out" of the rules if they can show sustained nondiscrimination.
But if the Supreme Court strikes the Section 5 pre-clearance provisions, as many analysts now predict, the burden will be on minority voters to prove that they were unfairly barred from voting. That's a significant reversal, say civil rights lawyers.
"We could be hit with a double whammy," warned Jon Greenbaum, director of the voting rights project for the Lawyers' Committee for Civil Rights Under Law. "You could have the Supreme Court making a negative finding on Section 5 at the very same time that Section 5's protections are very needed."
State legislators pushing for the restrictive ID and citizenship requirements -- all of them Republicans -- ostensibly want to fight voter fraud. But research shows that in-person voter impersonation -- the only type of fraud that voter ID laws could possibly block -- is virtually nonexistent. The real reason that GOP-controlled legislatures want to throw up new barriers to voting, say civil rights lawyers, is to depress turnout in Democrat-friendly voting blocs.
"I think Republicans understand that it was the increased registration and turnout in 2008 that seriously damaged them in the polls," said Laughlin McDonald, director of the American Civil Liberties Union Voting Rights Project. "And this is a way to try and reverse that."
To be fair, polls show that a majority of voters favor voter ID laws. A recent survey by the University of Missouri's Institute of Public Policy, done as part of the 2008 Cooperative Congressional Election Study, found that 55 percent of respondents strongly approve of photo ID.
But it's not the mainstream majority of voters who are at risk here. It's the smaller percentage of Americans who are on the electorate's margins -- students, the elderly, low-income voters, African Americans, non-English-speaking residents -- who disproportionately tend to lack photo IDs. The same group is more likely to lack proof of citizenship such as passports and birth certificates.
These barriers are not quaint relics of a forgotten era. At the risk of repeating ourselves, let's look again at the landmark 2008 Survey of the Performance of American Elections, the first empirical, post-election analysis of its kind. Conducted by the Massachusetts Institute of Technology, that survey found that in category after category -- voter registration, wait times, mail/absentee ballots -- African Americans and Hispanics encountered more problems at the polls than whites.
The statistics on ID requirements were particularly disturbing. A full 70 percent of African Americans and 65 percent of Hispanics were asked to show "picture ID," compared with only 51 percent of whites -- even in states where no such ID is required.
It's too early to say, of course, how the Supreme Court will finally decide in its NAMUDNO ruling, which is expected at the end of June. "Arguments are not a perfect predictor for how a judge will behave," noted Myrna Pérez, counsel at New York University's Brennan Center for Justice.
Still, Pérez and other lawyers arguing in defense of Section 5 were discouraged by the direction oral arguments seemed to take.
Most observers agree that Justice Anthony Kennedy will cast the deciding vote, since the remaining justices appear evenly divided. Yet Kennedy's questions on April 29 reflected distaste at the fact that voting rights laws apply to some states and not others, and concern over the cost of compliance and the bailout provisions, which he called "simply impracticable." To Pérez -- and other defenders of voting rights -- the implications are nothing short of dire:
"Given the tolerance that we are seeing of laws that lock out certain voters and stifle certain voices, I would be deeply concerned about a decision which eliminated some very, very important and effective protections."