The Texas law has been challenged by the Justice Department as discriminatory, and a federal court heard the case earlier this month. The panel seemed skeptical that the law was fair, but a similar law in Indiana was upheld 6-3 by the Supreme Court four years ago, ruling that requiring photo identification is not unconstitutional and that the state has a “valid interest” in deterring fraud.
But even if the DOJ loses, cases filed against new state laws are likely to block their implementation, which could help Holder’s boss in November.
Texas is one of several states that come under the preclearance provisions of the Voting Rights Act — but the Supreme Court barely upheld Section V of the VRA in recent years, and it is likely to hear another case in the fall term. Do not be surprised if the court, on a 5-4 vote, demolishes preclearance once and for all, in the heat of the presidential campaign.
What to do? I believe it is time for a Voting Rights Act of 2012, a new federal law to make federal elections free and fair, with the goal of enhancing the ability of eligible voters to vote, not the opposite. A new VRA would include provisions such as:
• Mandating that any IDs and supporting documents required for voting must be obtainable free, and must be widely available at sites reasonably accessible to all voters, including using mobile vans if there are no offices close to eligible voters.
• Requiring that valid student IDs be accepted on equal terms with any other government-issued ID.
• Mandating that any identification requirement contain a provision to permit any voter who lacks an approved ID to confirm his or her identity, and have his or her vote counted, not as provisional, by signing an affidavit that matches the signature on file with his or her voter registration. Fraudulent signatures would be felony offenses.
• Rewarding states that adopt best voting practices or enact policies that result in voter turnout gains generally, as well as specifically among minorities, young, older and disabled voters. That includes giving states the ability to experiment with incentives such as lotteries to encourage citizens to vote.
• Creating a separate federal ballot. The 2000 presidential contest’s infamous “butterfly ballot” in Palm Beach County, Fla., and other disastrous disputes over vote intentions and totals, including the 2008 House vote across the state in Sarasota, flowed from too many local and state contests crammed into one ballot, along with ballot initiatives and presidential and Congressional elections. A separate federal ballot, using a nationally acceptable format, would have at most three contests (president, Senate, House) and would eliminate costly sideshows such as the 2000 dispute, which add to our partisan division and high levels of voter distrust.
• Changing Election Day to the weekend. Voting on a workday is not written into the Constitution or written in stone; it was adopted in 1845 for practical reasons having to do with Market Day. We no longer have 19th-century economics or transportation, and having weekend voting, combined with early voting on the three weekdays before the weekend, would make it much easier for working people to vote.