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Analysis: Behind Voter ID, Federal Pre-Clearance

Woven into the recent federal ruling that found the state's voter photo ID law unconstitutional is a bigger question for Texas lawmakers — whether the state should have to seek federal permission when it changes election and voting laws.

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Strange things show up in the footnotes of federal court rulings.

Consider this one in a ruling by a federal judge in Corpus Christi, that the state’s voter photo ID law is unconstitutional: “The Texas Legislature did not vote to ratify the 24th Amendment’s abolition of the poll tax until the 2009 legislative session,” and “the process has not been completed and the measure last went to the Secretary of State.”

That came up early in an excoriating 147-page ruling from U.S. District Judge Nelva Gonzales Ramos that the state’s voter photo ID law, also known as Senate Bill 14, “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. The Court further holds that SB 14 constitutes an unconstitutional poll tax.”

Civil and voting rights history echoes throughout the ruling. The first footnote cites Lincoln’s Gettysburg Address. The poll tax prohibition, amended into the Constitution in 1964, shows up a few pages later in a discussion of the state’s history of blocking access to elections.

The court did not mention that the state’s ratification of the 24th Amendment was ceremonial. The amendment, proposed in 1962, was ratified two years later by 38 states —not including Texas. In the years since, Virginia, North Carolina, Alabama and Texas added their names to the roster.

Mississippi rejected the amendment in 1962, and seven other states — most in the South — have never ratified it.

The Texas resolution, passed by both houses of the Legislature in 2009 without any objections, said in part: “The Legislature of the State of Texas, as a symbolic gesture, hereby post-ratifies Amendment XXIV to the Constitution of the United States.”

It directed the secretary of state to send an official copy of the resolution to the federal government, and that was that.

But the judge’s footnote, taken with the rest of her opinion, illustrates the problem Texas faces with at least some of the federal courts when it comes to voters and elections.

It lacks credibility.

The litigation on the state’s voting district maps for legislative and congressional elections is still underway, and the treatment of minority voters and their ability to elect the candidates they choose is at the center of it. A federal court in Washington found that the state had intentionally discriminated in drawing its maps for Texas House districts. That finding has been set aside, but the lawyers suing the state have raised the same issues before another set of judges. The finding could come back.

The voter ID case is infused with some of the same arguments and conclusions that have marked past redistricting and election cases, each adding another brick to the wall of evidence that led the judge in this case to her conclusion.

“This history describes not only a penchant for discrimination in Texas with respect to voting,” she wrote, “but it exhibits a recalcitrance that has persisted over generations despite the repeated intervention of the federal government and its courts on behalf of minority citizens.”

“History” is worth your attention in that sentence. Last year, the U.S. Supreme Court struck down the part of the federal Voting Rights Act that put Texas and other jurisdictions with histories of discrimination under federal supervision. It required those places to get permission, or preclearance, from the Department of Justice for any changes in voting or election laws before putting those laws into effect.

With the Supreme Court’s 2013 ruling, those laws take effect after they are passed, and the Justice Department can come in with other defendants, as it has done in the voter ID case, to try to overturn those laws.

The Supreme Court decision left in place a provision of the Voting Rights Act that could put a state like Texas back under the preclearance provisions — not for historical discrimination, but for current discrimination.

If the voter ID ruling by Gonzales Ramos, an Obama appointee and a Hispanic, stands, it leads in that direction, saying the law’s proponents were motivated at least in part “because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.”

At the close, Gonzales Ramos said she would call a meeting of the lawyers, to consider whether minorities in Texas continue to need federal protection from their own state lawmakers.

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