Court Quashes Texas Voter ID Law

(On the map above, the states in green require a photo ID to vote, the states in yellow request a photo ID, the states in blue require a non-photo ID, and the states in gray do not have a Voter ID law.)

In the last legislative session, the Texas Republicans passed one of the most restrictive Voter ID laws of any state. They claimed it was to prevent widespread voter fraud (like someone voting more than once or using the registration card of someone else to vote). The problem with that reason is that there is no widespread problem of voter fraud. In fact, many more people are struck by lightning each year than commit voter fraud -- in every state, including Texas. Voter fraud was just the excuse for the law -- the real reason was voter suppression (since the Republicans designed the law to affect many more Democratic votes than Republican votes).

Yesterday, a three-judge panel in Washington D.C. threw out the Texas Voter ID law, calling it "the most stringent in the nation" and saying it violated the Voting Rights Act by affecting minorities more than others. They also said it posed a burden on the poor by requiring they spend money to get the required ID.

Texas Attorney General vowed to appeal to the Supreme Court. He said, "Today's decision is wrong on the law and improperly prevents Texas from implementing the same type of ballot integrity safeguards that are employed by Georgia and Indiana -- and were upheld by the Supreme Court." That is a bit disingenuous though, and the court addressed the approval of both of the laws those states passed.

First, Indiana is not covered under section 5 of the Voter Rights Act (VRA), while Texas is covered (because of its long history of denying minority voting rights). Because of that, Texas was required to prove they did not inhibit the voting rights of minorities in passing the law -- and both the Justice Department and the court said that Texas was not only unable to prove that but that the law they passed did affect minorities more than whites. The court held that the cases of Indiana and Texas are not analogous because Texas is covered under section 5 of the VRA.

The court also addressed the Voter ID law in Georgia (which actually received pre-clearance by the Justice Department), and how the Texas law was different. They said:

Nothing in this opinion remotely suggests that section 5 bars all covered jurisdictions from implementing photo ID laws. To the contrary, under our reasoning today, such laws might well be precleared if they ensure (1) that all prospective voters can easily obtain free photo ID, and (2) that any underlying documents required to obtain that ID are truly free of charge. Indeed, Georgia’s voter ID law was precleared by the Attorney General—and probably for good reason. Unlike SB 14, the Georgia law requires each county to provide free election IDs, and further allows voters to present a wide range of documents to obtain those IDs. Ga. Code Ann. § 21-2- 417.1(a); Ga. Elec. Code 183-1-20-.01. The contrast with Senate Bill 14 could hardly be more stark.

Finally, during closing arguments, Texas’s counsel complained that they had been shouldered with an “impossible burden” in this litigation. Trial Tr. 7/13/2012 27:14. This may well be correct, but Texas’s lawyers have only their client to blame. The State of Texas enacted a voter ID law that—at least to our knowledge—is the most stringent in the country. That law will almost certainly have retrogressive effect: it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty. And crucially, the Texas legislature defeated several amendments that could have made this a far closer case.

Ignoring warnings that SB 14, as written, would disenfranchise minorities and the poor, see, e.g., JA 1300-03; 1329, the legislature tabled or defeated amendments that would have:

• waived all fees for indigent persons who needed the underlying documents to obtain an EIC, Trial Tr. 7/12/2012 (AM) 30:17-31:7, 33:23-24;

• reimbursed impoverished Texans for EIC-related travel costs, JA 2139-42; 

• expanded the range of identifications acceptable under SB 14 by allowing voters

to present student or Medicare ID cards at the polls, Trial Tr. 7/12/2012 (AM)

34:21-24; JA 1246-47; 

• required DPS offices to remain open in the evening and on weekends, JA 1337;

and

 • allowed indigent persons to cast provisional ballots without photo ID. Trial Tr.

7/12/2012 (AM) 35:3-37:1. Put another way, if counsel faced an “impossible burden,” it was because of the law Texas enacted—nothing more, nothing less.

Texas can pass a Voter ID law. But it cannot pass a law that restricts the voting rights of the poor or minorities. In other words, Texas Republicans cannot attempt to suppress the votes of those they fear will vote against them -- and that is exactly what they tried to do. This was a good court decision and a reasonable one. I think it has a very good chance of being upheld by the Supreme Court. But we'll just have to wait and see, because the conservative-leaning court has made some bad decisions in the past (like Citizens United vs. FEC).