A Pyrrhic Victory for Voter-ID Opponents?

by John Fund

Opponents of voter-ID laws were jubilant on Thursday after their first-ever federal-court victory blocking the implementation of such a measure. A three-judge panel in Washington, D.C., ruled that Texas’s new law fails to comply with Section 5 of the Voting Rights Act, holding that the law had a discriminatory racial effect, and therefore will not be implemented for November’s election.

But those celebrating today’s ruling might temper their joy, because for them, dark clouds loom on the horizon.

First, the federal court laid waste to one of the favorite talking points of election-integrity opponents, who contend that there is no proof of any in-person voter fraud that voter ID would fix. The court held that in-person voter fraud isn’t required for states to pass prophylactic laws such as voter ID.

This will come as bad news to the Brennan Center and other left-wing groups that demand high thresholds before states can legislate election-integrity measures. These voter-fraud deniers have demanded that “massive” or “widespread” or “pervasive” voter impersonation exist before states do anything about it.

Since when do Americans wait until criminality has reach epidemic proportions before we pass laws to proscribe crimes? Thus, the opinion celebrated by voter-ID opponents undercut one of their key arguments.

Second, voter ID opponents may have won the battle in Texas, but they may soon lose the war over the Voting Rights Act. Texas Attorney General Greg Abbott is challenging Section 5 of the Voting Rights Act itself, and vows to appeal to the United States Supreme Court. The 2006 amendments to the law made it particularly constitutionally shaky. States must now prove an absolute absence of any discriminatory effort or intent before a law can take effect in one of the 16 Section 5 states. Does the federal government have the power to demand a pure soul, an unblemished effect, before a state election-integrity law may take effect? Texas is betting that at least five Supreme Court justices disagree, and they are probably right to do so. So voter-ID opponents should enjoy today’s decision, but the wiser among them will realize the decision jeopardizes the long-term viability of Section 5.

Finally, the federal court held that voter ID will discriminate against the poor. One problem, however: The Voting Rights Act makes no mention of economic status. It protects against racial discrimination, not economic discrimination. Here, the decision is most vulnerable to reversal. The three judges, including Bush appointee Rosemary Collyer, ruled that poverty can be a proxy for race. Since voter ID falls harder on the poor, it must fall harder on blacks and Hispanics, who are disproportionately poor. Good luck. This bootstrap argument, equating poverty with race, is likely to end up in the crosshairs of Texas attorney general Abbott.

Voter-ID opponents have their first-ever court victory, but it is likely to be short-lived and come with a steep price they probably didn’t bargain for.

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