Lawyers for the state of Texas have the ability to read the minds of voters:
A 3-judge panel will now decide whether to let Texas implement its controversial voter ID law.
In closing arguments at federal court, a lawyer for the state, John Hughes, insisted that even if non-white Texans lack an acceptable photo ID under the law, the “ultimate question” for the judges to consider is whether that disparity translates into people being turned away from the polls.
The requirement enacted by the Legislature in May 2011, Hughes argued, “deters almost no one,” and even people eligible to vote in Texas who lack one of the acceptable forms of photo ID – a drivers license, concealed gun permit, passport, or citizenship card – should be able to easily obtain an alternative voter ID card provided for by the law.
“People who want to vote already have an ID or can easily obtain it,” he insisted repeatedly. He noted that the Justice Department – which refused to let the state implement the law, prompting the state to turn to the federal courts – claims that 1.5 million Texas voters lack an acceptable photo ID.
“If that were remotely true, the courtroom would be filled with such people,” he said, citing survey evidence that black and Hispanic Texas voters say they have ID in rough proportion to whites.
The nail ladies and babysitters don’t want to vote, obviously, or they would be attending this hearing or have their concealed carry permit handy. He doesn’t know what all the fuss is about.
The judges seemed deeply skeptical. “The record does tell us that there is a substantial number of registered voters that lack photo ID,” said U.S. Circuit Court Judge David Tatel.
And District Court Judge Robert Wilkins noted that there was uncontested evidence that some Texans would have to travel 120 miles one way to the nearest state office where they could obtain a voter ID card – and that federal court rules bar subpoenas for anyone more than 100 miles from a courthouse on grounds that would be “unduly burdensome.”
Hughes argued that rural Texans are accustomed to such burdens when it comes to anything from grocery shopping to going to the doctor.
Under questioning from the judges, he sought to distinguish the voter ID law from a prohibited poll tax, noting that SB14 allows for a free alternative ID.
Federal authorities and minority advocates, however, dispute that. The ID card requires a birth certificate that costs $22, and a trip to a state office. Poor Texans are far more likely to be black or Hispanic, said Matthew Colangelo, deputy assistant Attorney General for Civil Rights, arguing that SB14 was “exactly the kind of law Congress had in mind” when it enacted the Voting Rights Act of 1965.
Even if Texas could show that the motive behind to eliminate fraud – and the evidence throughout the week showed that there is virtually no in-person voting fraud of the sort the law would deter – the disparate impact on minority Texans makes it impermissible.
Texas officials, he argued, never even tried to find out how many voters or would-be voters would be impacted by the law’s photo ID requirement. Given that the burden of proof rests with the state to show there is no discriminatory intent or effect, he argued, that’s a fatal flaw.
“Even if you have 200,000 people, and you don’t know that the race is, the only conclusion is there is an unlawful racial burden,” Colangelo argued, noting that blacks and Hispanics in Texas are three times more likely to live in poverty.
The new law, he said, is legally indistinguishable for a requirement for voters to reregister. That’s exactly the sort of obstacle the Voting Rights Act was enacted to prevent. And he urged the court to consider the political context in Texas when drawing judgments about the motives behind the push for tighter rules at the polls – demographic changes that threaten the GOP’s political control.
“It was enacted against the backdrop of huge, explosive Hispanic growth,” he said.
Looks good for democracy enthusiasts so far, but don’t get too excited:
The panel is expected to make its decision by late August, and a lot of people outside Texas are interested in the outcome. A number of states have passed voter ID laws, and several await Justice Department approval — or “preclearance.” That’s required under the Voting Rights Act of 1965 for states with a history of voter discrimination.
If Texas loses, it will almost certainly appeal to the Supreme Court, where the state hopes the preclearance requirement will be ruled unconstitutional.
Texas and other states argue that discrimination that occurred decades ago should no longer be used to require them to go through more hoops than other states to enact voting laws.
Texas is also challenging the preclearance requirement in the Voting Rights Act, and that could very well go down if it gets to the SCOTUS. It has to go because it hurts the feelings of conservatives in preclearance jurisdictions and may also be a job-killing regulation that should be opposed on general deregulatory dogma grounds. The DOJ could win this battle and lose the war.
Mino
If they already feel free to violate the VRA because Justice refuses to sue, then SCOTUS has effectively overturned the law without all the trouble of a court case. Lose, lose. Get it over with and regroup, if necessary.
PeakVT
So, would the current SCOTUS use a clearly discriminatory law to overturn a significant feature of the VRA? Let the speculation begin…
BBA
Texas may have a point on the VRA. Requiring some states and not others to go through preclearance may very well be a violation of equal protection.
If so, the remedy is to require all states to go through preclearance.
NonyNony
@PeakVT:
I’ll put money on a 5-4 decision.
I won’t put money on which way a 5-4 decision will go, but it’ll be a 5-4 decision.
Kay
@Mino:
The history there with conservatives is really interesting. They’re such cowards.
Elected Republicans renewed the law in Congress in 2006, along with a big, showy signing ceremony starring President Bush. Pure politics. They didn’t mean a word of it.
They lack the spine to vote against a really profound and historically important piece of civil rights legislation, so they renewed it, and immediately pursued gutting it in court.
Absolute cowards. Republicans have yet to be called out on this in any way, but that’s what happened. They sent the lawyers in to do what elected Republicans wouldn’t do publicly. I think every elected Republican should be asked repeatedly why they voted to renew the VRA, while at the same time planning to gut it in court. We need some political accountability here, particularly re: Latino voters in places like Texas.
Valdivia
As always Kay you do the work of the angels on this.
jenn
Ugh, thanks for the update, Kay. Though was it you saying this suit might be good (in a way) because it demonstrates there is still need for the VRA, if it does go before SCOTUS?
Constance Reader
As Texan may I say that, even though I believe the law should go down in flames, AG Greg Abbott doesn’t seem to have sent his varsity squad into this game. “Rural people are used to it”? WTF kind of argument is that. Just say well, they CHOSE to live in middle of nowhere (just as chose to be brown or poor or female, I guess).
Kay
@Mino:
Here’s President Bush proudly signing the renewal, surrounded by civil rights leaders:
They’re all frauds. They staged a dog and pony show to cover their ass politically and then quietly moved right to court to gut it. Apparently no one dare ask a single elected Republican what changed between voting for renewal under the “klieg lights” and then seeking to gut the law they had just voted for.
Jim C
People in Texas live 100 miles from the nearest grocery store? (If true, that sounds like the cue for a Sam Kinison line.)
Kay
@jenn:
That is just my personal take, so don’t rely in it. I’m guessing what the DOJ might be thinking. It makes sense to me that they could use the lawsuits against Texas and SC as justification to UPHOLD preclearance (“We rely on it all the time!” Look!”) but I haven’t read or heard that anywhere else.
Mino
@Constance Reader: Humm, maybe he wants a loss to fast track it through SCOTUS. Still, don’t see how they do it in time for this election.
Steve
@BBA: The equal protection argument is frivolous. The only jurisdictions subject to preclearance have a proven history of discrimination.
merl
There’s not much point in a poor person in Texas driving 120 miles to see a doctor when they can’t get healthcare so that example should be thrown out.
Zach
Here’s an interesting data point: the poll tax in Alabama in 1901 was $1.50. That’s $40 today. This is also about what you’d have to pay me to go to the DMV and stand in line for a couple hours (and my DMV is only a few mile away; and I have a car).
The fact that there’s even an argument in court as to whether it’s particularly difficult to acquire a complying ID is already a loss for voting rights. It’s not that hard to memorize the preamble to the constitution, get someone to come along while you vote and vouch for your residency/citizenship, pay a small amount of money, or have your name published in the paper when you register to vote, either. The only thing that these things have in common is that they existed to stop people from voting.