A Supreme Court decision earlier this week held states may set their legislative districts on the basis of total population, rather than just the number of registered voters. Constitutional commentators properly hailed the decision as a major affirmation of the principle of “one person, one vote.”
But all is not as rosy on the voting rights front as those news reports suggest.
First, there’s the fact that plaintiffs sued in Evenwel v. Abbott and pursued their case all the way to the Supreme Court. Sue Evenwel and Edward Pfenninger weren’t folks who were refused a right to vote. Nor were they crammed into a district with way more people than other districts. Instead, they argued that the state acted wrongly by drawing state legislative district lines based on the total number of people, versus the number of registered voters. Because rural areas tend to have higher percentages of registered voters, the plaintiffs argued that their votes were somehow diluted.
Put aside the fact that urban areas also tend to have higher proportions of minorities. Don’t think about the fact that minorities are often underrepresented on the lists of voters. And forget the fact that there has been a history of discrimination against minority voters in the United States. Nope, these plaintiffs claimed that they were the ones who somehow had their voting rights infringed.
The Supreme Court’s ruling rejected that claim and held that the state had acted properly in using total population as the basis for setting its voting districts. In her opinion for the majority, Justice Ruth Bader Ginsburg’s majority opinion even quoted Alexander Hamilton—subject of Broadway’s top musical hit right now:
There can be no truer principle than this—that every individual of the community at large has an equal right to the protection of government.
Significantly, however, the Supreme Court did not decide whether a state could decide to use the total number of registered voters instead of population. That leaves the door open in case a state legislature decides to try that approach.
Unfortunately, some state officials apparently still take actions that limit voting rights, and that’s easier to do after the Supreme Court’s 2013 decision in Shelby v. Holder.
In fact, Texas — the same state where the Evenwel case was brought — seems to have a particularly poor record when it comes to protecting the voting rights of minority groups. This point was hammered home last week at a voting rights training program for lawyers presented by the Northeast Ohio chapter of the American Constitution Society for Law and Policy.
Speaking to a group of about 70 lawyers, attorney Gerry Herbert outlined a particularly egregious case in Texas that deals with photo ID requirements for voters. Significantly, the state law excludes things like state university photo IDs, but allows driver’s licenses and gun permits — even though one doesn’t need to be a citizen to get a gun permit in Texas. And while a state photo ID could be obtained free of charge, people would need to pay money and might have to travel long distances to get documents required to apply for that photo ID. Perhaps most damning were comments made by various state officials, applauding their departments for periods when they went without having to issue any of those “free” photo IDs.
Herbert outlined some of Texas’s other efforts to prevent so-called “voter fraud.” Forget the fact that there isn’t evidence of any widespread voter fraud. Among other things, the Texas state government wants its bureaucrats to be especially vigilant and watch for tell-tale signs. One criterion listed was suspicious or exotic-looking stamps. And an actual example from a state official’s actual presentation was a U.S. stamp highlighting awareness of sickle-cell anemia — a devastating disease that especially afflicts black people.
Plaintiffs actually won a challenge to the Texas photo ID law, but the case is currently on appeal. In the meantime, the law remains in effect. “Texas has been allowed to use this law even though it was found racially discriminatory,” Herbert said.
Other worrisome cases include the debacle in Arizona last month, where Arizona’s Maricopa County drastically reduced the number of voting places. While people across all groups had long waits, those in minority groups would have felt a disproportionate burden, speakers at the ACS training program noted. That’s because those voters were more likely to have had to get back to work.
Before the Supreme Court’s decision in the Shelby case, the government would have had to get pre-approval for the change in the number of voting places. And it would have had to show the absence of a disproportionate effect.
Now most changes probably won’t be reviewed until after the fact — and that’s a problem. It calls for diligence on the part of state and local governments and the electorate. And it calls for attorneys and society at-large to support efforts to enforce voting rights.
Find out what’s going on in your community. And do your part to encourage everyone to register and then get out to vote. Consider supporting efforts by groups such as the American Constitution Society as well.
We may not always agree with what other voters do at the polls. But if we let government curtail the legitimate rights of any voters, we all will ultimately suffer for it.