01 Apr 2012 Justice Department Plays Fast and Loose with Facts and Constitution in Challenging Texas Voter ID Law

Summary

The civil rights division of the Department of Justice has formally objected to Texas’ new voter identification law. The state of Texas has rightly appealed this decision. Unfortunately for taxpayers in Texas, they will have to cover the costs for an unnecessary extended appeal, the outcome of which is wholly predictable.

Background

Texas enacted Senate Bill 14 last year in an effort to reduce election fraud. The new law requires most voters to present a government-issued photo ID when they vote in-person at the polls.¹ 31 states already require voters to present some form of identification when voting at the polls, and at least 15 states make in-person voters present a valid government-issued photo ID. But Texas is one of twelve states subject to the requirements of Section 5 of the Voting Rights Act of 1965, a federal statute designed to remedy flagrant attempts to disenfranchise minority voters, and the State must therefore seek “preclearance” from the U.S. Attorney General, from or a three-judge panel in Washington, D.C., before any change in its election law can take effect.

Section 5 pre-clearance for a proposed change in a state’s election laws is granted only if the State can demonstrate that the proposed change does not have “the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.”²

Any serious examination of the facts reveals that Texas has more than met its obligations not to abridge minority voter rights.

After months of inaction, the Department of Justice (DOJ) denied the State of Texas’ request for preclearance, and Texas has now asked the U.S. District Court for the District of Columbia to rule that Senate Bill 14 satisfies the requirements of Section 5. In other words, Texas has asked the court to declare that its voter ID law has neither the purpose nor effect of denying or abridging the right to vote on account of race or color. In the alternative, the State has also challenged the constitutionality of Section 5 itself, arguing that it exceeds the enumerated powers of Congress and violates Article IV of the Constitution and the Tenth Amendment.

In its March 12, 2012 letter to the State of Texas, the DOJ concluded that Texas had not “sustained its burden under Section 5 of the Voting Rights Act” of showing that the new law would not have a “retrogressive effect” on voters in minority communities. In particular, DOJ indicated that the Texas law would significantly impair the ability of Latinos to cast a vote. To reach this conclusion, however, the DOJ made two significant and telling mistakes, and, as a result, its objections to the Texas law and denial of pre-clearance should be reversed.

First, after waiting until the last possible day to respond to Texas’s preclearance request, the Justice Department replied that it could not determine whether the new law would “deny or abridge the right to vote on account of race” because the State had not provided “the number of registered voters in Texas, by race and Spanish surname by county of residence, who currently possess a Texas driver’s license or other form of photo identification…” Neither had Texas indicated how many of its registered voters who claimed to lack a photo ID also happened to have a Spanish surname. Without these little statistical nuggets, DOJ could not say whether the State’s Hispanic voters would be disproportionately affected by the photo ID requirement.

Does holding a Spanish surname necessarily mean that one is Hispanic? Does the white woman who marries a Hispanic man and takes his surname in marriage become “Hispanic” for the Justice Department’s race-counters? Or how about the Hispanic woman who marries a white man and takes his Anglo surname – is she no longer counted among “Hispanic voters”? What of their voting-age children? Not Hispanic? And what qualifies as a “Spanish surname” anyway?

Basing the pre-clearance decision on an imprecise racial proxy may not be “fast and furious,” but it sure is fast and loose.³

Texas responded to DOJ’s request with the data it had available, but cautioned that the State does not record the race of voters when they register to vote, and it was, therefore, unable to quantify the racial makeup of registered voters who lack state-issued ID. Of course, as the State explained in its appeal to the court, “the very reason Texas refuses to maintain racial and ethnic data on its list of registered voters is to facilitate a colorblind electoral process” – a policy it adopted shortly after the Voting Rights Act was enacted in 1965. Furthermore, Texas did not maintain a Hispanic category on driver’s licenses until 2009, making it even more difficult to calculate the race or ethnicity of those who have or don’t have state-issued ID cards.

Not satisfied with Texas’s data and explanation, DOJ then demanded a far more nonsensical request: the racial breakdown of voters that possess state-issued Driver’s Licenses in each county, which would then be used to extrapolate the racial makeup of that group as compared to the general population. Texas met the request, but expressed its concern about the relevance of that data to the question at hand—the law’s impact on minority voters.

Denying preclearance for Senate Bill 14, the Justice Department indicated that the State’s data showed that registered voters with Spanish surnames are more likely to currently lack a driver’s license than voters without Spanish surnames, and this disparity meant that Hispanic voters would be more negatively affected by the new law than non-Hispanic voters. Using its proxy-ridden yet practically useless statistics, the DOJ concluded that 6.3% of “Hispanic” registered voters lacked a valid photo ID, while only 4.3% of voters with non-Spanish-sounding surnames were without the same ID. That 2% discrepancy – so carefully tabulated – was enough for Uncle Sam to withhold his federal blessing.

But the DOJ didn’t just get the math wrong; it didn’t get the law right, either.

The Justice Department ignored recent, relevant Supreme Court precedent already holding that States may require virtually all voters to present photo-ID in order to vote and that such a requirement does not infringe upon – “deny or abridge” – the right to vote, particularly when the State provides photo identification cards free of charge.

In 2008, the Supreme Court decided Crawford v. Marion County Election Board, a significant case involving a voter ID law enacted by Indiana that is very similar to the one enacted in Texas. Indiana is not subject to Section 5’s preclearance protocols, so its law was implemented and then challenged by various arms of the state’s Democratic Party. These complaints in Crawford alleged that Indiana’s photo ID requirement “substantially burdened the right to vote in violation of the Fourteenth Amendment,” claimed it was not an appropriate method for avoiding election fraud because Indiana had enacted other fraud-prevention statutes, and argued it arbitrarily disenfranchised qualified voters who did not possess the required identification.⁴ The complaints were unsuccessful in the district court, the court of appeals, and ultimately in the U.S. Supreme Court.

The DOJ has made essentially the same arguments in objecting to Texas’ Senate Bill 14 – without ever addressing the Court’s Crawford ruling. The controlling plurality opinion in Crawford was written by Justice Stevens, a lion of the Left, who made perfectly clear that “the inconvenience of making a trip to the DMV, gather the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”⁵ Justice Scalia echoed that point and was joined by Justice Thomas and Justice Alito in concurring: “The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not ‘even represent a significant increase over the usual burdens of voting.'”⁶

It is difficult to see after Crawford on what grounds the Justice Department believes that Texas’ nearly identical requirements can “deny or abridge the right to vote” when the Court has already concluded that those same requirements are not a “substantial burden” or even a “significant increase over the usual burdens of voting.”

The DOJ’s preclearance denial in the Texas case also was based on its flimsy observation that in-person voter impersonation is “already addressed by the state’s existing laws.” Notwithstanding that it is not the responsibility of the Department of Justice under Section 5 authority to offer guidance on which laws are more effective at achieving a state’s goals, this explanation is yet another example of how the DOJ has willfully ignored Supreme Court precedent. The Crawford plaintiffs also tried this line of attack – unsuccessfully.

In Crawford, “The record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future.”⁷ The Court discounted this argument, citing studies demonstrating that “not only is the risk of voter fraud real but that it could affect the outcome of a close election.”⁸ Thus, whether states have other anti-fraud election laws was essentially irrelevant to the Crawford Court in light of the “importance of the State’s interest in counting only the votes of eligible voters”—an interest providing “a sufficient justification for carefully identifying all voters participating in the election process.”⁹

Conclusion

The actions of the Department of Justice are wholly unjustified. The foot-dragging, the shoddy statistical analysis and the decision to ignore U.S. Supreme Court precedent reveal either a beleaguered Justice Department incapable of maintaining a professional level of operation or a rogue agency willfully placing its weight on one side of the scale of justice.

Texas has effectively appealed the DOJ’s preclearance denial to the three-judge panel in Washington, D.C., and has presented a number of other arguments for the court to consider – even going so far as to question the constitutionality of Section 5 itself. But at bottom lies the question of whether Senate Bill 14 and the photo ID requirement can fairly be said to “deny or abridge the right to vote on account of race.”

The U.S. Supreme Court answered that question in 2008’s Crawford decision. The Department of Justice is pretending it wasn’t listening. Rather than discuss Crawford or distinguish Texas’ law from Indiana’s, the DOJ elected to ignore the Court’s instruction in that case and to proceed as if photo ID requirements were an election law novelty that the State of Texas had just invented. Justice Department attorneys know better.

Then again, their superiors also know it’s an election year.

Horace Cooper is a legal commentator and an adjunct fellow at the National Center for Public Policy Research.

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Footnotes:

¹ Voters who suffer from a documented disability are exempt from the requirement. Any voter who lacks government-issued photo identification may obtain an “election identification certificate” from the Texas Department of Public Safety. These are issued free of charge and satisfy the law’s requirements. Voters who fail to bring the proper identification to the polls may still cast a provisional ballot that will be accepted if the voter presents proper identification within six days after the election.

² 42 U.S.C. § 1973c(a).

³ See, Rodriguez v. Bexar County, 385 F.3d 853, 866 n. 18 (5th Cir. 2004) (criticizing Spanish-surname data as a “highly problematic” and “disfavored” method of measuring Hispanic ethnicity).

⁴ See, Crawford v. Marion County Election Bd., 553 U.S. 181 (2008).

⁵ Id.

⁶ Id. (Scalia, J. concurring).

⁷ Crawford v. Marion County Election Bd., 553 U.S. 181 (2008).

⁸ Id.

⁹ Id.