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Messing with voting rights in Texas

If there was evidence that voter fraud was prevalent — or even a serious possibility — then perhaps the Supreme Court's ruling early Saturday allowing Texas to impose one of the strictest voter photo identification laws in the country would make sense. Instead what the evidence shows, as a federal trial judge in Texas originally found, is that the unconstitutional law will have only one significant effect and that is to discourage minorities from voting.

The notion that suspending the law so close to an election would only disrupt the electoral process is laughable given that imposing it amounts to court-authorized racial discrimination. Minorities are simply less likely to have the government-approved form of ID if only because of the cost involved in obtaining a copy of one's birth certificate and the failure of state government to adequately publicize more affordable alternatives. Thus, the voter ID requirement is simply a kind of poll tax, a Jim Crow law for the 21st century.

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What's the worst thing that might have happened had the court barred the law from applying to this year's election? Poll workers would have to be told to follow past practices. That's not much of a burden compared to potentially shutting out 600,000 registered voters, a disproportionate percentage of them African-Americans and Latinos, in a state that has recently evolved from majority white to a "minority-majority" population.

In the decade leading up to the photo ID law's passage, Texas convicted all of two individuals for in-person voter fraud (the only kind of fraud a photo ID requirement might prevent). And as Justice Ruth Bader Ginsburg noted in her seven-page dissent this weekend, the GOP-controlled Texas legislature refused all efforts to make it easier under the law for voters to obtain ID or otherwise lessen the measure's discriminatory effects.

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"The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters," Ms. Ginsburg wrote.

But wait, might that simply be a liberal's biased view of the evidence? Might voter fraud actually be rampant despite the lack of evidence to support that contention? To answer that, ladies and gentlemen of the public opinion jury, we would turn to Judge Richard Posner of the 7th Circuit Court of Appeals, the often-quoted Ronald Reagan appointee who wrote on that very subject last week.

In a dissent written after the Chicago-based court failed to take up a similarly strict Wisconsin voter ID law, Judge Posner observed that the rationale behind the voter ID law was a solid, 24-carat load of hokum and bunk. "There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud," he wrote, "and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens."

The evidence for voter fraud? Judge Posner says it's weak and "downright goofy, if not paranoid." He notes that just because the Republican legislature in Wisconsin believes such fraud exists doesn't make it so. "If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?"

Mr. Posner's views are notable not only because he's been such an influential voice in the judiciary but because he once supported one of the first voter ID laws (in Indiana) but has obviously had a change of heart. Math will do that, specifically, the analysis that shows voter fraud is a 1 in 14 million chance compared to the much more serious problem of disenfranchising millions of Americans who lack government-issued photo ID, primarily poor, elderly and minority citizens who are more likely to vote Democratic.

Of course, neither dissent represents the last word on the subject, and the decisions they involved were largely procedural. The heart of the matter — whether such voter ID laws are constitutional or not — must still be decided by the federal bench and ultimately, the Supreme Court. Like same-sex marriage bans now being tossed out by the courts, the best hope is that the evidence will eventually sink in that these laws serve only to discriminate. To that end, Mr. Posner and Ms. Ginsburg have produced two convincing, fact-based arguments.

To respond to this editorial, send an email to talkback@baltimoresun.com. Please include your name and contact information.

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