by Caitlin Naidoff

I spent Election Day 2012 in Pennsylvania, which was aptly described by media coverage as “ground zero for problems.” Reports recently submitted to the Senate Judiciary Committee accurately reflect what I observed in my own experience: signs and individuals falsely indicating that photo identification would be required, phone messages from unidentified callers directing voters to the incorrect polling locations, and the inexplicable absence of long-time voters from the rolls at polling sites where they had voted for the past 20 years. I also received reports that voters who had registered to vote through their welfare office were never added to the rolls.

It was clear that one major source of confusion was the state’s contested Voter ID law, which had been passed by the state legislature over the summer but was pre-empted by a preliminary injunction just weeks before the election. Judge Robert Simpson of the Commonwealth Court of Pennsylvania found that there was not enough time remaining to close the “gap between the photo IDs issued and the estimated need” and postponed further consideration or enforcement of the law until after the election. However, the court’s decision still allowed poll workers to ask for identification. As a result, I received calls from confused voters who, under the impression that they would not be allowed to vote, turned around and went home.

What impressed me most about my experience was the anger and shame expressed by rightful voters who were impeded by these practices. One of the plaintiffs in a class action suit challenging the Pennsylvania Voter ID law, Gloria Cuttino, explained “I’ve campaigned…I volunteer to do whatever I can to help because I think it’s important…I would really like to cast my opinion to make a difference, you know?…Why can’t I vote anymore? Why now?” Her comments illustrate the way in which identification requirements that effectively deny the right to vote are not just logistically problematic, but fundamentally offensive to dignity.

Proponents of identification requirements contend that the ease of obtaining identification should mitigate any concerns. This argument underestimates the diversity inherent in the American experience. Several of the plaintiffs in the Pennsylvania suit, for example, were delivered by midwives rather than in hospitals and were never able to obtain state identification because they did not have birth certificates. Additionally, for people who live in rural areas or have demanding work schedules, obtaining a so-called free identification card could be prohibitively costly.

A federal court highlighted these concerns when it struck down a similar law in Texas last summer, finding that the law would discriminate against minority voters, particularly those who are poor. The court heard the case as part of a preclearance procedure required by §5 of the Voting Rights Act, which requires jurisdictions with a history of discrimination to get approval from the federal government before amending their election procedures. Currently, nine states as a whole are subject to these restrictions, as are select counties and townships in seven other states.[1] The panel reviewing the Texas voter ID law denied preclearance because it found that “racial minorities in Texas are disproportionally likely to live in poverty” and the proposed law would “weigh more heavily on the poor.” The resulting retrogressive effect on minority voting, the court held, would impermissibly contravene the purposes of the Voting Rights Act.  If Texas were not required, by § 5, to go through this preclearance procedure, then it would have been able to enact this law without federal approval.

This February, the Supreme Court will reexamine the constitutionality of §5 of the Voting Rights Act. The plaintiff in the case, Shelby County, Alabama, argues that Congress exceeded its enforcement authority under the 14^th and 15^th Amendments when it reauthorized the Act in 2006. Primarily at-issue is the imposition of preclearance requirements on areas where fewer than 50 percent of minorities were registered to vote in 1972. It is important to note, however, that a jurisdiction subject to preclearance procedures under §5 is permitted to “bail out” of its requirements if it is able to demonstrate in front of a three-judge panel in the District Court for the District of Columbia that “for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under § 5, and has not been found liable for other voting rights violations.”[2]  Additionally, the jurisdiction must show that it has engaged in efforts to eliminate intimidation of voters and present evidence of minority electoral participation.

Shelby County contends that its minority registration rates are currently above this threshold, and that the law is unconstitutionally arbitrary due to its reliance on outdated information. The District Court for Washington D.C. rejected the suggestion that Congress lacked sufficient evidence when it reauthorized the Act. In fact, the House Judiciary Committee developed “one of the most extensive legislative records” in its history, including 12,000 pages of testimony, documentary evidence, and statistical analyses. The court concluded that Congress responded to what it reasonably perceived to be a continuing history and pattern of unconstitutional conduct by covered jurisdictions, and that the reauthorization conformed to constitutional standards.

Still, the Supreme Court has indicated it may be sympathetic to Shelby County’s argument. In 2009, the Court heard a similar case and, while it declined to decide the merits of the constitutional issue, stated: “the evil that § 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by § 5 than it is nationwide.” Paradoxically, the effectiveness of the Voting Rights Act is being used to advocate for its demise.

The Court’s decision could have grave implications for the future of Voter ID laws in states, like Texas, that have been unable to demonstrate during preclearance procedures that identification requirements would not have a retrogressive effect on the “blight of racial discrimination in voting.”  In contrast, the Court’s decision would not directly impact the viability of voter ID laws in states like Pennsylvania, which is not a jurisdiction covered by the special provisions of the Voting Rights Act.

Based on my experience in Pennsylvania on Election Day, I would agree with Shelby County that that the legislature might benefit from ongoing data collection and analysis regarding current efforts to disenfranchise minority voters.  However, unlike Shelby County, I believe that a comprehensive analysis would suggest states should be subject to more rather than less restrictive oversight.  I do not mean to suggest that areas with longstanding history of racism should not be viewed with particularly close skepticism, or that current statistics should be prioritized over anecdotal evidence or documentation of historical trends. But the problems that I witnessed made clear to me that discriminatory voting practices take many forms and are not limited to the American south. Voter identification requirements are no less degrading to Gloria Cuttino simply because she sits in Pennsylvania.

The Supreme Court should uphold the protections offered by the Voting Rights Act, and leave to Congress the policy questions raised by new methods of disenfranchisement and discrimination.

Caitlin is a 2L at NYU, where she is a Staff Editor for the Review of Law and Social Change.