Photograph by Eric Gay/AP

Early voting began on Monday in Texas and Wisconsin. As a result of recent rulings by the U.S. Supreme Court, Texas residents will need a particular form of identification to vote; Wisconsinites can vote without one.

On Saturday, the Supreme Court issued an order, in response to an emergency request from the Justice Department and various civil-rights groups, that permits Texas to enforce a voter-I.D. law that had been struck down twice by lower courts. The Texas law had previously been found to violate Section 2 of the Voting Rights Act, which prohibits racist discrimination, because it requires that voters in the state obtain one of seven types of identification that are not held by many African-Americans and Hispanics. Justice Ruth Bader Ginsburg wrote a dissent for the Court, which Justices Elena Kagan and Sonia Sotomayor signed. Ginsburg called the conditions under which elections in Texas will now take place “the strictest regime in the country.” She argued that the rigidity of Texas’s law distinguished it from Wisconsin’s law. “For example, Wisconsin’s law permits a photo ID from an in-state four-year college and one from a federally recognized Indian tribe,” Ginsburg wrote. “Texas, under Senate Bill 14, accepts neither.”

The Court’s tone was a contrast from earlier this month, when it stopped Wisconsin from implementing its voter-I.D. law because of the proximity of the upcoming election. The rationale had little, if anything, to do with the plaintiffs’ argument that certain communities of voters—the poor, the elderly, the African-Americans, the Latinos—were being disproportionately burdened in trying to obtain the proper form of identification.

There are at least two lines of logic that the Court is using to address the set of voting-rights cases that it has reviewed leading up to November’s election. One, as exhibited in Wisconsin, asserts that, just weeks out, it is too late to implement changes to voting permissions. The other is less straightforward, not least because the Court did not affirmatively defend its decision in the Texas case, and calls into question the way that the right to vote has been interpreted, as well as the role of the Supreme Court in offering clarity.

The right to vote, as defined by two constitutional amendments, actually defines the ways that Americans may not be legally discriminated against: not by “race, color, or previous condition of servitude” or by sex. Additionally, the Twenty-fourth Amendment protects us from poll taxes. The language in these amendments exhibits the difference between avoiding a particular suffering and providing an affirmative and undeniable right. As a result, there have been several movements throughout U.S. history to circumvent the spirit of these laws. More recently, in 2013, the Court’s decision in Shelby v. Holder stripped the Voting Rights Act of its pre-clearance provision (Section 5), which required that certain states obtain approval from the Justice Department before making any changes to electoral procedures. But, as James Garder, a constitutional-law professor at SUNY Buffalo Law School, told me, the Shelby decision was not an isolated one. “The Court has been moving in this direction for a while. They can’t find campaign-finance restrictions that they like. They want a completely unregulated political market. And they seem not to be too concerned when people get turned away from the polls.”

Ginsburg’s dissent argues that the Texas law “may prevent more than 600,000 registered Texas voters (4.5% of all registered voters) from voting in person for lack of compliant identification. . . . A sharply disproportionate percentage of those voters are African-American or Hispanic.” But the intent behind those numbers can be hard to prove, especially because judicial precedence, for the most part, requires plaintiffs in civil-rights cases to prove “discriminatory intent” rather than “disproportionate impact” in order to declare an action or policy unconstitutional. “For about almost thirty years, the Supreme Court has held that in order to make out a claim of infringement on the right to vote under the Constitution—under the Fourteenth Amendment or the Fifteenth Amendment—the plaintiff has to show intentional discrimination,” Gardner said. And, when the plaintiff is challenging a legislature’s action, he explained, “It’s awfully tough to get good evidence of what they’re really thinking unless somebody stands up and says something overtly racist, which everybody is too smart to do now.”

What’s troubling is that before the Supreme Court’s order, on Saturday, the plaintiffs in the Texas case had proven discriminatory intent—the Texas law had previously been blocked under Section 5 of the Voting Rights Act and, earlier this month, a federal judge blocked it again. Zeroing in on intent narrows the scope of equal protection; the net effect—of the voting-related constitutional amendments and the judicial precedence that’s followed—points to a subordination of individual rights in favor of states’ rights.

“It’s not that the Court itself is restricting voting rights,” Gardner said. “It’s that the Court is refusing to disturb decisions of state legislatures—mainly Republican-controlled state legislatures—that do have that effect of restricting people’s ability to vote.” (Of these two cases, the Supreme Court is more likely to hear Texas’s on the full merits of the case, because of its discriminatory findings, and that may account for its relative silence.) Nevertheless, this moment, of threatened voting rights and judicial obscurity, presents a paradox: the strongest tool that citizens possess is being made impotent by the government officials who are most immune to the power of the vote. The demands of political power are particularly ruthless, and it seems improbable that legislatures will pass laws that restrict their chances of reëlection. The Supreme Court has yet to offer any recourse.

Read more analysis and commentary at our 2014 midterms hub.