The Obama administration’s claim that Texas’s voter identification law will keep blacks and Hispanics away from the polls this November will be tested in a week-long federal trial that started today in Washington.
Texas, one of eight states that passed laws last year requiring photo identification in order to vote, is seeking court approval of the measure, arguing it’s needed to prevent electoral fraud. The Justice Department says Texas’s rules are harsher than any other state and place a “new and substantial burden” on minorities’ ability to cast a ballot.
“At least 1.4 million registered voters in Texas lack any state-issued voter identification,” Elizabeth Westfall, a lawyer in the Justice Department’s voting section, told a three- judge panel today in a four-minute opening statement. “These voters are disproportionately Hispanic and black.”
Since 2004, six elections for the Texas House of Representatives have been won by less than 50 votes, the state said in a July 1 filing. In the 2010 general election, the victor in a state house district west of Austin was decided by 12 votes, according to the state.
The case marks the first time a federal court will weigh in on the Obama administration’s effort to use the Voting Rights Act of 1965 to block a state from requiring photo ID to vote.
“Clearly there is a sense that the political stakes are high,” Christopher Elmendorf, a professor of election law at the University of California Davis School of Law, said in an interview. “There’s a belief that in close elections these laws could make a difference.”
Texas is one of 16 states or jurisdictions with a history of voting rights violations that need permission from the Justice Department or a federal court in Washington to change election procedures.
Texas opted to go to court on the photo ID rule, suing Attorney General Eric Holder on Jan. 24.
Under the law Republican Governor Rick Perry signed last year, voters who arrive at the polls lacking one of seven acceptable forms of photo IDs issued by the state or federal government, which include permits to carry a concealed handgun, would be given a provisional ballot, according to the Texas Secretary of State’s website. College or university IDs aren’t among the authorized documents.
Those ballots would count only if voters bring an approved ID to the registrar’s office within six days of the election.
The law exempts mail-in ballots and voters with significant disabilities or religious objections to being photographed.
The requirements “entail minor inconveniences on exercising the right to vote,” Texas Attorney General Greg Abbott said in his initial court filing.
The Justice Department, which in December stopped a similar statute in South Carolina, claims the law would increase the burden of casting a ballot in person for more than a million Texas voters.
Hispanic registered voters in Texas are from 47 percent to 120 percent more likely to lack the required identification than non-Hispanic voters, the Justice Department said in a letter to the state in March. Texas has 2.81 million Hispanics among the state’s 13 million registered voters.
“There were 13 million combined votes cast in all Texas elections in 2008 and 2010,” Trey Martinez Fischer, chairman of the Texas Legislature’s Mexican American Legislative Caucus, which opposed the law, said in an interview before the trial began. “There has been only one indictment for voter impersonation in that time, so what’s the big public policy issue that requires sacrificing 700,000 voters?”
In an hour-long presentation today, Adam Mortara, a lawyer for Texas, called the Justice Department’s number of affected voters “highly-inflated” and accused the department of relying on a database analysis that didn’t examine whether its list of voters without identification included people who were dead or had moved out of state.
He said the Justice Department never analyzed whether these potential voters had acceptable federally issued identification such as passports or military or citizenship records.
“The database analysis is so irretrievably flawed it doesn’t show anything,” said Mortara, a lawyer at Bartlit Beck Herman Palenchar & Scott LLP in Chicago.
Brian Ingram, director of the Texas Secretary of State’s election division, testified that he and his wife twice found themselves on the Justice Department’s list of voters without identification. Each of them has a valid driver’s license, he said.
Since 2002, Texas conducted 308 investigations of voter fraud, filing criminal charges against at least four people, according to a state filing. At least three cases involved alleged voting by noncitizens.
Ingram testified that 239 votes were cast in the state’s May 29 election by people suspected of using the identities of dead people. He said the allegations will be turned over to the Texas attorney general for investigation.
Texas Assistant Attorney General Patrick Sweeten said in a July 1 filing that the Justice Department hasn’t identified “a single eligible, registered Texas voter who lacks a required form of ID and will not be able to obtain an election identification certificate.”
Texas also points out that Stephen Ansolabehere, the Justice Department’s expert witness to assess the effect of the law, found in 2008 that 70 percent of Hispanics and blacks support identification requirements.
Groups that intervened in the case say they have found such would-be voters, including those who don’t have transportation, can’t locate documents, aren’t allowed to take time off from jobs or lack funds to pay for a new state ID.
Under Section 5 of the Voting Rights Act, the burden is on Texas to show that its law wouldn’t have a “retrogressive effect” on minorities or was enacted without a discriminatory purpose.
“It’s not clear the Justice Department has to show that the law will actually prevent anyone who is dead set on intending to vote from voting,” Elmendorf said. “All they have to show is the burden isn’t trivial to the cognitive process voters go through when they decide they should vote or not vote.”
The three judges hearing the case, Circuit Judge David Tatel and district judges Rosemary Collyer and Robert Wilkins, have said they’ll try to rule before the end of August.
The case is Texas v. Holder, 12-00128, U.S. District Court, District of Columbia (Washington).
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