Messing in Court With Texas' Voter Photo ID Law

      How many Texans will be unable to vote in November if the state is allowed to put its new photo ID law into effect? The Justice Department, opposing the law, estimates about 1.4 million Texans lack the kind of identification required under the law. Texas, seeking court permission to put the law into effect, says the number at risk of being denied at the polls is much smaller: 167,724.
      That’s right: Texas acknowledges that its voter ID law could prevent 167,724 people from casting ballots in November — which, the Dallas Morning News notes in an editorial, is roughly the entire population of Brownsville. “That is plainly unacceptable,” the newspaper says.
      The law is all the more difficult to justify given the paltry evidence that the state’s lawyers introduced in federal court in Washington, D.C., last week (July 9-13) on the supposed need for this new requirement. Maj. Forrest Mitchell, the election fraud investigator for the state attorney general’s office, testified that for all of the state’s effort at catching voter fraud, only five people have been prosecuted for voter impersonation – the only fraud that a photo ID law might catch.
      Texas is one of 16 states that have recently enacted laws requiring voters to show a government-issued photo ID, typically a driver’s license, in order to cast ballots. Unlike most of the others, Texas needs court permission to put its law into effect. Like six other southern states with histories of racial discrimination in voting, Texas is subject to a requirement in the federal Voting Rights Act to obtain “preclearance” for any change in election law or voting procedure.
      The fate of the preclearance requirement — section 5 in the act — may lie with the Supreme Court if the justices decide to hear one of the new round of lawsuits challenging the constitutionality of the provision. So far, lower federal courts have upheld the law. Roberts Court conservatives voiced grave doubts about the law, however, in a 2009 decision, Northwest Austin Municipal Utility District No. 1 v. Holder. The Court ruled on a narrower issue, however, and left the law largely intact for the time being.
      With the law on the books, Texas is held to its proof to show that the law does not have the purpose or effect of racial discrimination. Texas asked the Justice Department for clearance to put the law into effect, but the Justice Department said no last year. Texas then took the alternate route prescribed in the law: a suit before a special three-judge federal court in Washington.
      The week-long trial that ended with three hours of opposing arguments on Friday (July 13) seems from news accounts to have gone not so well for the state. Lawyers for the state got an earful from the presiding judge when they complained that the Justice Department had been slow to provide needed information. Judge Rosemary Collyer, a Republican appointee, barked that the state had “a horrendous record” in the case for failing to produce records on time.
      As recounted by the Morning News’s reporter Todd J. Gillman, the state’s statistical expert, Thomas Sager of the University of Texas-Austin, jumped through hoops to whittle the Justice Department’s estimate of 1.4 million disenfranchised voters down to size. Sager followed instruction from state officials to delete from the Justice Department’s calculation anyone over age 65 — on the assumption that the law, known as SB 14, makes it easier for older people to vote by mail.
      That tenuous assumption accounted for 140,666 deletions from the DOJ list, Gillman reported. Another 261,887 people were removed from the “No ID” list because they said they had some sort of Texas ID even though, as Gillman noted, a would-be voter’s say-so will not be enough on Election Day if the law takes effect.
      Even with all the generous statistical assumptions, the prospects of turning away 167,724 would-be voters is in astounding contrast to the exhortations typically heard in advance of elections on the importance of every single vote. Given the scant evidence of voter impersonation — and the utter impracticality of swaying an election that way — one is naturally drawn to the conclusion that photo ID advocates actually want fewer people to go to the polls.
      African American and Latino legislators testified that was exactly the motivation the Republican-controlled Texas legislature had in enacting the law, using special procedures to ease passage. Arguing for the government, Matthew Coangelo, deputy assistant attorney general in the civil rights division, emphasized that the law was enacted against the backdrop of a huge increase in the state’s Hispanic population. Harvard University statistician Stephen Ansolabehere testified that the “No ID” list is disproportionately African American and Hispanic. Those populations are important Democratic constituencies.
      Even if GOP legislators were not deliberately engaged in voter suppression, the state’s lawyers had no concern during the trial with the difficulty would-be voters might face in securing the needed photo ID. When State Rep. Trey Martinez Fischer noted that people in West Texas might have a 200-mile round trip to get to a state office for the needed ID, the state’s lawyer, John Hughes, replied cavalierly that Texans are accustomed to long-distance driving.
      Hughes drew more and harder questions from the judges than Coangelo did during closing arguments. The judges promised to try to decide the case quickly. South Carolina will go to trial before a different panel next month to try to get clearance for its photo ID law.