All in a night's work for Ruth Bader Ginsburg

You’re permitted to cast a ballot in Texas (where early voting began Monday) if you show a concealed-handgun license at the polling place, but not if you present a student, veteran, or federally recognized Indian tribe ID card. Of course, that eligible voters (in Texas and elsewhere) would suddenly need specific types of photo identification or meet any variety of strict new requirements was foreseeable when the Supreme Court last year struck down the preclearance provisions of the Voting Rights Act. As Justice Ruth Bader Ginsburg memorably dissented at the time: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” The umbrella discarded, Texas duly implemented measures making it indisputably harder for many people to vote—precisely the kind of maneuver the preclearance provision had many times since the civil rights era forestalled.

Just how hard was made clear by Ginsburg (who else?) in her quickly-becoming-famous, wee-hours dissent in the Court’s weekend decision allowing Texas’s voter identification law to stand—this despite an earlier federal ruling striking it down explicitly for its discriminatory intent. Ginsburg noted that more than 400,000 eligible voters face round-trip travel times of three hours or more to the nearest government office issuing the allowable forms of ID, where they will likely have to present a certified birth certificate. Those normally cost $22; though the state offers certificates for election purposes at $2 or $3, this information isn’t available on relevant websites or forms. Taken together, Ginsburg logically concluded, it amounts to a poll tax, and those were outlawed with ratification of the Twenty-Fourth Amendment.

Texas has justified its strict new requirements as a safeguard against voter fraud. Two instances of voter impersonation were confirmed in all of the elections held in Texas between 2001 and 2011, so clearly there is a problem—though fraud isn’t it.

Demographics could be, though, at least for the Republicans who hold most of the elected offices. Notes John B. Judis in the New Republic

From 2000 to 2010, 78 percent of Texas’s population increase consisted of African-Americans and Hispanics, who could be expected to support Democrats rather than Republicans. If those population trends were to continue, and if the new Hispanic voters (who made up the bulk of the population increase) were to flock to the polls, Republicans could be doomed.

But the main problem is the predictable behavior of Texas and states with similar histories of voter suppression: oversight lifted, they go right back to their old ways. Even if the Texas law is eventually found unconstitutional, Ian Millhiser says, the damage is done, since leaving it intact for this cycle alone encourages supporters to try, try again, as the past has amply demonstrated:

The lesson is that, if you allow a voter suppression law to go into effect for just one election, then the supporters of that law are likely to come up with a new way to suppress the vote if the first law is ultimately struck down. And even if the second voter suppression law is ultimately struck down, this cycle can continue forever so long as each law is allowed to be in effect for just one election. This is why, when President Lyndon Johnson proposed the Voting Rights Act to a joint session of Congress, he warned that “[e]very device of which human ingenuity is capable” was used to deny African Americans the right to vote in the Jim Crow South.

As reliable as the efforts of certain states to suppress voting are, so are those of Ginsburg to keep the real aim of those efforts front and center—along with the actual danger they pose: the threat to public confidence in elections “of enforcing a purposefully discriminatory law….”  They're also far more laudable. While many were sleeping, Ginsburg was at work on a dissent keeping us clear on what’s at stake should the Court, as seems possible, takes up the Texas law again next year. 

Dominic Preziosi is Commonweal’s editor. Follow him on Twitter.

Please email comments to [email protected] and join the conversation on our Facebook page.

Must Reads