The U.S. Justice Department wants Texas back.
A trial that began today in Corpus Christi over the legality of a voter ID statute may return the state to U.S. supervision of its treatment of minority voters, restoring what the Supreme Court took away last year.
The Republican-controlled Texas Legislature crafted a law requiring types of government-issued photo identification cards that black and Latino voters are less likely to have, Justice Department and civil-rights lawyers challenging the law contend.
Texas called the litigation an end-run around the high court and a political effort to boost potential Democratic votes. While the state insists the law thwarts fraud, the Obama administration rejects that as a veneer for discrimination. The government seeks to persuade U.S. District Judge Nelva Gonzales Ramos to throw out the rules and put the state’s elections back under federal oversight.
That’s what a three-judge panel in Washington did before the Supreme Court voided the ruling, setting aside part of the Voting Rights Act that imposed federal supervision on states and municipalities with records of discrimination. Under what’s left of the Civil Rights-era law, Ramos can restore federal oversight if she rules that Texas lawmakers intentionally discriminated against minority voters when writing the Photo ID law.
Texas’s law “is far more Draconian than any law needs to be to serve any legitimate state purpose,” Elizabeth Westfall, a Justice Department lawyer, told Ramos today in her opening statement. She asked the judge to “require Texas to obtain approval from this court or from the attorney general to any changes in its election law.”
In court today, other lawyers opposing the law attacked the state’s contention that voter ID rules won’t suppress votes.
Texas has issued just 266 election identification certificates since the law took effect last year, compared with at least 780,000 registered voters believed to lack proper ID to vote in November, they argued.
It’s “indisputable that more than a half-million Texans will lose their right to vote” under the new rules, said Chad Dunn, who represents Democratic Texas Congressman Marc Veasey. “That’s more than the voting-age population in six states.”
Minority voters may be reluctant to go to state offices to obtain free election ID cards, Dunn said, because rumors are circulating that state troopers require fingerprints or conduct background checks before they’ll supply them.
“Whether or not that’s true, the perception is there to scare people away from exercising their constitutional rights,” he told Ramos. “There’s no time to fix these issues” before the November election, he said.
Reed Clay, a lawyer for Texas, rejected that argument, adding that the effort needed to obtain a card is minimal.
“The inconvenience of a trip to the Department of Motor Vehicles” is no bigger burden than going to the polls to vote in person, Clay told Ramos, an appointee of President Barack Obama, a Democrat. The judge is hearing the case without a jury.
Voters without proper ID can cast provisional ballots that will be counted when they return with acceptable ID, he said.
Opponents of the law countered that about 90 percent of such ballots cast since the law took effect were never counted.
Rolando Rios, an attorney for a group of Hispanic county election officials, told Ramos that most of those voters didn’t follow up with supporting documents within a few days of the election.
The law “is having the intended effect,” Rios said. “It was intended to suppress the Hispanic vote in violation of the Constitution.”
In addition to minority voters, groups seeking to block the law said that it also suppresses the youth vote, which along with minorities and the elderly, make up what they contend are traditional Democratic constituencies.
Danielle Conley, a lawyer for the Texas League of Young Voters Education Fund, told Ramos student ID cards were “inexplicably” excluded from the list of acceptable documents even though they were used by young voters “for years without the slightest evidence of problem” before the new law took effect.
Young voters “feel like they’re now fighting the very same battles their parents and grandparents fought” during the Civil Rights era, when blacks battled laws restricting their access to the ballot box, Conley said.
The photo ID trial represents one of two chances for the Justice Department to wrest back oversight through a process known as pre-clearance, which requires federal approval for any changes in state election laws.
Until now, the Justice Department and voting-rights activists have focused their efforts on a higher-profile Texas voting-rights case over redistricting. Lawyers made their closing arguments in federal court in San Antonio last week in a phase of that trial affecting congressional districts drawn at least partly to help Republicans get elected.
“We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights,” U.S. Attorney General Eric Holder said when the government joined the voter ID case. “The department will take action against jurisdictions that attempt to hinder access to the ballot box, no matter where it occurs.”
The political stakes are high as the state’s population becomes increasingly younger, poorer and more ethnically diverse -- all groups that tend to vote Democratic over Republican. Latinos will overtake whites as the state’s largest racial category by 2015, according to state demographers. The 2010 census showed Texas gained 4.3 million new residents in the previous decade, with almost 90 percent of them being minorities.
While the redistricting case has dragged on since 2011, the voter ID case has moved from filing to trial in little more than a year. Ramos has given lawyers 14 days to present their entire case.
“It’s a race to the finish line,” said Jose Garza, a lead attorney for minority activists in both cases, saying that either case could push Texas back under pre-clearance first.
The voter ID rules take the state in the wrong direction by discouraging voters from going to the polls, Garza said. “We have dismal voter turnout in Texas.”
The state ranked 48 among the 50 U.S. states in voter turnout in 2012, according to a study by Nonprofit Vote, a nonpartisan organization.
Texas lawmakers, led by Republican Governor Rick Perry, contend the voter ID law protects “election integrity” and combats “overwhelming” voter fraud.
Perry, a possible candidate for the Republican presidential nomination in 2016, said the Obama administration’s decision to join the lawsuit, which was started by activist groups including the League of United Latin American Citizens and Texas branches of the NAACP, demonstrated “utter contempt” for the constitutional system of checks and balances.
“This end-run around the Supreme Court undermines the will of the people of Texas, and casts unfair aspersions on our state’s common-sense efforts to preserve the integrity of our elections process,” Perry said last year.
Republican State Senator Dan Patrick, who is running for lieutenant governor, has said Texas voters showed “overwhelming” support for the measure, “based on all the people I talked to over a period of time” and his review of unspecified polling results, according to a deposition excerpted in court filings.
“Voter fraud is a well-recognized problem in Texas,” the state’s lawyers said in court filings. Despite examining thousands of lawmakers’ e-mails, opponents of the law have been “unable to identify any statement made by any legislator or staff member that evinces a desire to harm racial minorities or that evinces a desire to suppress voter turnout in any political or demographic group,” those lawyers said.
The law has already been used in several elections without disenfranchising voters, Lauren Bean, a spokeswoman for the Texas Attorney General’s Office, said in a statement. “Most every Texan already has a valid ID, but if they don’t they can get one for free,” she said.
Critics argue in-person voter fraud is so rare that photo-ID laws are a solution to a problem that doesn’t exist.
“That’s important because the state has to show it had a compelling state interest that trumps the competing interest of inconveniencing voters in the polling place,” said Joseph Kulhavy, a former Voting Rights Act compliance attorney in the Texas Secretary of State’s elections office. In the past five years, Texas has detected about 60 cases of election fraud, with only one or two instances of in-person voter impersonation, the only fraud addressed by photo IDs, he said in an interview.
“When it’s discussed, there’s always the intimation of potential fraud and a link to the immigration issue,” Kulhavy said. “But across the country these in-person voter fraud cases can be counted on one hand. Texas won’t be able to find instances where the outcome of an election turned on illegally cast votes.”
The Texas law prevents citizens from voting if they can’t show polling officials one of seven kinds of government-issued photo identification. These include a driver’s license, passport, concealed handgun permit, military ID or election identification certificate. The last of these can be obtained for free by showing a birth certificate and supporting documents at any state driver’s license office.
Texas addressed criticism that some citizens had difficulty obtaining photo IDs by opening additional driver’s license offices and sending mobile units to areas without ready access to such facilities.
That wasn’t enough to “mitigate the burden” on poor and minority citizens who lack transportation or documents, Myrna Perez, a lawyer for the Brennan Center for Justice, which opposes the requirements, said in an interview. Studies by the center have found almost 1.2 million eligible Texas voters don’t have acceptable voter identification, including about 500,000 Latinos and 180,000 blacks.
“Low-income voters are less likely than whites to have these documents, and people of color are disproportionally likely to face an economic impact in trying to get them, like lost wages, no cars and no money for cab fare to get to those offices,” Perez said. “Texas’s law can prevent hundreds of thousands of votes and it hits minorities the hardest.”
“This trial will be a real test of what kinds of tools we have left after the Voting Rights Act was eviscerated by the U.S. Supreme Court,” she added.
Clay, one of Texas’s lawyers, attacked the activists’ studies as unreliable “estimates based on estimates” that likely overstate the percentage of minority voters lacking acceptable Texas voter ID. He also challenged their assertion that free election identification cards are hard to get.
“The plaintiffs, after years of searching are having immense difficulty producing a single voter who has a heavy burden getting a free” voter ID, Clay told Ramos.
At trial today, Harvard University political science professor Stephen Ansolabehere, who studies U.S. elections and voting habits, analyzed the impact of the voter ID law for the Justice Department.
Among registered Texas voters, “blacks are twice as likely to not have ID as Anglos, and Latinos are 40 percent to 50 percent as likely” as whites to lack proper identification, according to his research.
Texas Deputy Attorney General John Scott attacked the study, noting the professor couldn’t explain how 22,000, or 3 percent, of the Texans counted in his tally of registered voters without proper ID managed to vote this year in elections held after the ID rules took effect.
Ansolabehere acknowledged that he misclassified the races of six individual voters suing Texas in this case, including Congressman Veasey, who is black and was listed as “possibly Caucasian,” and wheelchair-bound veteran Floyd Carrier, who was listed as “highly likely” white when he is bi-racial.
“Even with misclassifications, there’s still evidence of racial disparity” in voters’ possession of acceptable photo ID, Ansolabehere testified.
Texas argues it has been unfairly singled out for selective enforcement by a partisan Justice Department seeking to boost minority-voter turnout at the expense of state sovereignty and election integrity.
“Federal intervention has been necessary to eliminate numerous devices intentionally used to restrict minority voting in Texas,” Justice Department lawyers said in a court filing. Without a court order blocking the voter ID law, it will “interact with social and historical conditions in Texas to deny equal opportunities for Hispanic and African-American voters to participate in the political process,” they said.
Kulhavy, who used to process the state’s pre-clearance paperwork, also disputed the state’s claim it has been singled out.
“Texas just provides such a target-rich environment for violations of the Voting Rights Act,” he said.
The case is Veasey v. Perry, 2:13-00193, U.S. District Court, Southern District of Texas (Corpus Christi).
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