SB 14 and the Integrity of Elections

Noah Potash, Class of 2015

Last week, an article (“Don’t Mess With Texas: Voter ID Law to Stand in Nov. 4 Election”) provided an enthusiastic defense of the Supreme Court’s recent decision to allow Texas to enforce its controversial voter identification law, SB 14, in the upcoming November elections. Disregarding for a moment the extensive cases against the morality and constitutionality of that law, the arguments that Ms. Loiacono advanced in favor of SB 14 are spurious and irrelevant.

Of particular concern is the claim that SB 14 is necessary to prevent voter fraud, one which echoes the purported aims of the lawmakers who proposed the bill. “Don’t Mess With Texas” cited an article published by “the Nation Review [sic],” which “found a 97 percent success rate when voter fraud was attempted.” Left unstated in last week’s piece was the fact that the article was based on a small undercover government operation in New York City in which 63 agents impersonated citizens who were not eligible to vote in that location. This was a single, small-scale experimental study. But to focus on the limited conclusions which can be drawn from the National Review piece would be to miss the point entirely. Regardless of how easy it may be to carry out voter fraud – and there is compelling evidence that it is more difficult than the National Review concluded – voter fraud almost never occurs.

Politifact found that the Texas attorney general’s office recorded 18 cases of confirmed voter fraud in Texas since 2002, a period in which over 20 million votes were cast in that state. That would suggest a confirmed voter fraud rate of 0.00009 percent. The counterargument is that there may be more cases of fraud which have slipped between the cracks. But as U.S. District Judge Nelva Ramos noted in her decision which initially struck down SB 14, “since the implementation of SB 14’s photo ID requirements over three elections, there has been no apparent change in the rate of voter fraud referrals and no higher rate of convictions.” Voter fraud appears to be almost nonexistent in Texas, and at any rate, SB 14 has not revealed a host of malicious political operatives seeking to undermine American democracy one vote at a time.

This undermines the idea that voter ID laws “stand to uphold the integrity of our elections.” While even a brief summary of Texas’ long, well-documented history of suppressing minority voters is beyond the scope of this article, it is worth pointing out that SB 14 is merely the latest in a series of measures, stretching back over decades, to disenfranchise minority voters in Texas under the banner of preventing voter fraud. All of these measures, including all-white primary elections, literacy requirements, poll taxes, voter re-registration, repeated violations of the Voting Rights Act and others were either struck down by courts, ruled unconstitutional or removed following political backlash. The measures have all had the same goals: to discourage Texas’ minority population, which favors Democratic candidates much more heavily that the state’s Caucasian population, from impacting elections. Initially, this was written explicitly in the legislation and announced by those lawmakers endorsing it; these justifications are no longer spoken out loud, but that does not mean they no longer exist.

The “Don’t Mess With Texas” article devotes a paragraph to rebutting the claim that District Judge Ramos’ decision should somehow trump the ruling of the Supreme Court. The problem with this line of reasoning is that no one has made a claim that the Supreme Court isn’t within its rights to allow SB 14 to stand. Ms. Loiacono also points out, correctly, that “[t]he finality of this decision sits with the Supreme Court.” However, as she hints at but never states outright, no final decision has been reached in the case of SB 14. National Public Radio (NPR) quotes a source as saying “[the] Justice Department has indicated that the case is likely to return to the Supreme Court.” From the information at hand, it is reasonable to conclude that the Supreme Court refused to block SB 14 because of “worries that changing election laws so close to Election Day would create chaos and hurt the elections.” It’s important to ignore the extraordinary speed with which the election laws were initially passed and how unclear it is how returning elections to their pre-2012 status would “hurt” them when voter fraud is negligible. But if this was the rationale behind the Court’s majority decision, then all discussion of the Supreme Court’s legitimacy in making the decision is entirely irrelevant to Ms. Loiacono’s argument, namely that voter ID laws are about curbing fraud and protecting electoral integrity rather than preventing minorities from voting because they tend to vote for Democrats.

Depending on what sources are consulted, between 200,000 and 600,000 eligible voters will find it substantially more difficult to vote this November because of SB 14. When considering whether or not American democracy is best served by Texas’ voter ID laws, the strictest in the nation, it’s not useful to offer diffuse and meaningless platitudes like “Texas is doing what Texas does: protecting its state” or “the United States is synonymous with our form of government.” Decades of suppression of minority voters cannot be dismissed as part of “a complicated history with prejudice.” In its essence, the only complicated thing about Texas’ policies towards minorities is that the desire to repress their votes has been expressed in increasingly subtle language, to the point where it is possible to miss that desire entirely in a cursory examination. But skating over facts doesn’t erase history. And disingenuous claims about voter fraud don’t protect the integrity of our elections – they enable the continuing erosion of that integrity.