Is Texas still racist enough to warrant hand-holding by the federal government? That's the essence of where the voter ID debate stands now and where it's headed. Though it may seem like a straightforward question, and one that many politicos have reduced to a "yes" or "no" sound bite, the issue is actually extremely difficult to bottom-line. And because of that, it's not going away.
Before we get to the meat of our talk with Richard Pildes, an NYU law professor who has studied and written extensively about voting rights, here's a quick(ish) catch-up:
Governor Rick Perry signed a law in May requiring Texas voters to present a government-issued photo ID to vote. Activists on both sides of the issue bared their teeth and lunged. The Department of Justice hesitated, taking some time to decide whether the law disenfranchised minorities, and ultimately decided that "the state has failed to meet its burden of demonstrating that the proposed law will not have a retrogressive effect," and refused to allow the law.
Then the debate took a turn -- why does the DOJ have such strict control over a state law that other states have already implemented without a problem? And should the feds have such control?
The Dallas Morning News addressed some of these questions on Sunday. The debate is rooted in the 1965 Voting Rights Act, which implemented federal oversight for certain states with a history of outright racism. The constitutionality of the measure was hardly a question then because the justification was so strong.
Under Section 5 of the Voting Rights Act, the federal government must approve measures like the voter ID law for the singled-out states. While other states can require ID to vote, no questions asked, the fed had plenty of questions for Texas that lead to their answer: no.
Texas, like South Carolina and Arizona, sued the fed, challenging the constitutionality of the Voting Rights Act.
Pildes, the NYU law professor who was quoted briefly in the Morning News article, explained to Unfair Park why this issue is more complex than many politicians would lead people to believe, and how the Voting Rights Act (or "unique federal receivership," as he calls it), has been molded from its original purpose to fit the current situation.
"You had a very simple biracial dynamic [when the Voting Rights Act was put in place]," Pildes says. "Blacks were excluded; whites were doing the excluding, at least in the Southern states."
Now, however, the justification of the act has been expanded, as the DOJ and others opposed to the Texas law contend that minority voters, especially Hispanic voters, are adversely impacted by the Texas Voter ID law.
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"Are [these issues in Texas] significantly different from the problems that may exist in Boston or Chicago or in various other parts of the country?" Pildes asks. "It's a different kind of problem than the problem that existed in 1965 when people were being excluded from the polls," he says. "Back in 1965 the problem involved total exclusion from participation."
It's become an issue of social and economic disadvantage, more so than outright racism. And the question becomes whether this is still unique to the states singled out under the Voting Rights Act, and therefore whether the act remains constitutional as it is applied today.
"It may be that some parts of the country ... that there are good reasons that those areas ought to remain covered," Pildes says, adding that it might also be the case that other areas of the country should be covered. Racism no longer falls so clearly along state -- and legal -- lines. So the question becomes: How much of a disproportionate effect on minorities must a law have for Congress to rightfully adopt or maintain a measure like the Voting Rights Act?
"The legal system has only begun to touch the surface of those issues so far," Pildes says. And the Texas, Arizona, and South Carolina lawsuits are forcing these issues to finally be hashed out.