President Obama’s 2008 election, with an unprecedented turnout and 69 percent of the 15 million new voters casting their ballot for him, rattled the Republicans.
Even more unsettling was the demographic make-up of these new voters; this was not the group—African Americans, Asians, Latinos—who comprised the GOP, which was 92 percent white. Equally troubling was that for the first time, blacks had voted at a rate virtually equal to whites.
Caught between the right-wing hardening of the party’s ideology and the massive influx of new voters, who were repulsed by key planks in the GOP’s platform, the Republicans chose disfranchisement as the only tool to “put the white back in the White House.”
Republican-controlled state legislatures, claiming that there was widespread (but still yet to be documented) voter fraud, crafted a series of laws designed to curtail access to the ballot box. The U.S. Supreme Court, in Shelby County v. Holder (2013), followed up in a 5-4 decision by gutting the Voting Rights Act and removing the ability of the Justice Department to review changes in voting requirements prior to enactment by a state, county, or municipality that had a proven history of discrimination at the polls.
Texas is a case in point. Almost the moment Shelby County v. Holder was announced, that state’s Republican-dominated legislature put through a highly restrictive voter ID law, S.B. 14. A phalanx of civil rights organizations, including the NAACP and the League of United Latin American Citizens, minority voters, and Mexican American legislative and Hispanic judges associations, immediately sued the state of Texas. During the two-week trial in the fall of 2014, the attorney general of Texas, Greg Abbott, argued that the law was necessary to stop and prevent rampant voter-identification fraud. Yet, out of ten million votes, he could produce only two documented cases of voter impersonation. On the other hand, it became clear that nearly 600,000 Texans, mainly poor, black, and Hispanic, didn’t have the newly required IDs and often faced financial and bureaucratic obstacles in obtaining them.
Thus, in September 2014, in a stinging dressing-down of the state, district court judge Nelva Gonzales Ramos ruled that Texas’s voter-ID law “creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African- Americans, and was imposed with an unconstitutional discriminatory purpose.” Texas, she emphasized, had levied “an unconstitutional poll tax” on its citizens.
Ramos’s ruling, which declared that Texas had deliberately created discriminatory voting requirements, was a trip wire to reinstate the Voting Rights Act’s Section 5 preclearance statute in Texas. The state, therefore, intended to fight the decision. The first order of business, though, was to seek immediately a judicial delay to allow the voter ID law to remain in place during the upcoming midterm election. Chaos would reign at the polls, argued Texas attorney general Abbott before the Fifth Circuit Court of Appeals, were the law changed this close to an election. He also assured the court that keeping the voter ID law in place would not “substantially injure” the plaintiffs.
On October 14, 2014, the Fifth Circuit judges agreed and granted Texas’s request to allow a deliberately discriminatory law to operate during the all-important midterm election. As the judges saw it, “This is not a run-of- the-mill case” and Ramos’s ruling “substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts.”
The U.S. Department of Justice, civil rights groups, and individual voters then joined together and raced to the U.S. Supreme Court, seeking to overturn the Fifth Circuit’s ruling. While the U.S. Supreme Court, led by Justice Antonin Scalia, ruled in favor of the state without any comment on the merits of S.B. 14, Justice Ruth Bader Ginsburg’s dissent was incisive, tearing away at the supposed chaos that might occur in the election if the discredited voter-ID law was suddenly jettisoned. There “is little risk,” she wrote, of disrupting the election process. All Texas needed to do was “reinstate the voter identification process it employed for ten years (from 2003 to 2013) and in five federal general elections.” After all, she observed, the new requirements for voter ID had only been used in three state elections where the voter turnout ranged from 1.48 percent to 9.98 percent. While those Texas primaries were relatively low stakes, Ginsburg noted, the November 2014 election “would be the very first federal general election conducted” under the new voter-ID regime. And that was the problem. The Supreme Court, she wrote, could not allow a “purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters” to be used in a federal election. But that is precisely what the U.S. Supreme Court did.
Excerpted from White Rage by Carol Anderson. Copyright © Carol Anderson 2016. Published by Bloomsbury USA. Reprinted with permission.
Carol Anderson is professor of African American studies at Emory University. She is the author of many books and articles, including Bourgeois Radicals: The NAACP and the Struggle for Colonial Liberation, 1941-1960 and Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights: 1944-1955. She lives in Atlanta, Georgia.