What Would A Complaint Look Like If We Moved Voting Rights Beyond Race or Party?

In my forthcoming essay (and related oped from this past weekend), I suggest a claim under the Equal Protection Clause against those states which have made voting harder for no good reason.  It is not a racially based claim, nor a partisan gerrymandering claim, nor a Bush v. Gore claim. Instead I am advocating something like Burdick-Anderson balancing with teeth, where the state must prove with actual evidence that there is a problem which a strict voting law is reasonably tailored to solve.

That claim is not at issue in the Justice Department’s cases against Texas or North Carolina, and it does not appear to be at issue in the Wisconsin voter id cases in federal court either.

But now it looks like the Texas League of Young Voters may have filed just such a complaint against the State of Texas—though I would claim it should be unnecessary to prove a “severe” burden for this claim to succeed.

Count 4
117. Plaintiff-Intervenors reallege the facts set forth above.
118. SB 14 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983, because it denies many Texas citizens, including Plaintiff-Intervenors, their constitutionally protected right to participate in elections on an equal basis with other Texas citizens.
119. SB 14 imposes severe, unconstitutional burdens on the right to vote of many Texas citizens, particularly those who are poor, who lack one of the required IDs under SB 14.
120. As a result of SB 14’s particular requirements and other factors (such as the
inaccessibility of many DPS offices), the amount of resources (including time and money) that many eligible voters will be forced to expend to obtain one of the required IDs will be substantial.
121. Thousands, potentially hundreds of thousands, of Texas voters currently lack one of the required IDs and, therefore, will be forced to bear the significant cost of obtaining the necessary ID.
122. Because the cost of complying with SB 14 will be prohibitive for many of these
voters, SB 14 will disfranchise a significant number of registered and otherwise eligible Texas voters.
123. Defendants have not demonstrated and cannot show an interest sufficient to justify the severe, unconstitutional burdens that SB 14 places on many Texas voters who lack the requisite IDs.
124. Though purportedly designed to protect against in-person voter fraud, there is no evidence that such voter fraud actually occurred in Texas before SB 14’s passage or that existing State and federal laws did not adequately deter in-person voting fraud.
125. SB 14 thus purportedly targets a problem that does not exist in fact. The law places a severe, unconstitutional burden on the fundamental right to vote of many Texas citizens, including Plaintiff-Intervenors, which is not justified by any legitimate countervailing state interest.

I’ll be watching this one closely, as well as watching whether anyone makes a similar claim against North Carolina’s new strict voting law.


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