Thursday, August 30, 2012
In State of Texas v. Holder, a well-reasoned opinion today from a three judge court denied Texas' motion for declaratory judgment that its new voter identification law, SB 14, satisfied section 5 of the Voting Rights Act, 42 U.S.C. §§ 1973 et seq. Although the court ordered the parties to provide a proposed schedule to the court on the constitutional issue, the Voting Rights Act (VRA) issue was intertwined with constitutional ones, as is so often the case in VRA cases.
For example, the parties disagreed about the import of Crawford v. Marion County, (2008), in which the Court upheld Indiana's voter ID law against a facial equal protection challenge. Texas contended that Crawford controlled, while the United States argued Crawford was "largely irrelevant." For the three-judge court, "the correct answer lies somewhere between these two positions." Contrary to Texas’s argument, in Crawford itself, the Court noted that it was “consider[ing] only the statute’s broad application to all Indiana voters," and the Texas' SB14 poses different questions - - - "does SB 14 have discriminatory purpose or retrogressive effect?" - - - and requires focus "on the limited subset of voters who are racial and language minorities." And, perhaps most importantly, unlike Indiana in Crawford involving a constitutional challenge, Texas bears the burden of proof under the VRA. Contrary to the position taken by the United States, however, Crawford informs the analysis of SB 14 in two important ways: purpose and effect.
Much of the 56 page opinion discussed the evidence, with the court including this summary:
We pause to summarize the evidentiary findings we have made so far. Contrary to Texas’s contentions, nothing in existing social science literature speaks conclusively to the effect of photo ID requirements on voter turnout. Moreover, scant lessons, if any, can be drawn from Indiana and Georgia, largely because SB 14 is more restrictive than the photo ID laws adopted by either of those states. Finally, no party has submitted reliable evidence as to the number of Texas voters who lack photo ID, much less the rate of ID possession among different racial groups. Given this, we could end our inquiry here. Texas bears the burden of proving that nothing in SB 14 “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" [citation omitted]. Because all of Texas’s evidence on retrogression is some combination of invalid, irrelevant, and unreliable, we have little trouble concluding that Texas has failed to carry its burden.
But the court went further, stating that the "record evidence suggests that SB 14, if implemented, would in fact have a retrogressive effect on Hispanic and African American voters."
This conclusion flows from three basic facts: (1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty. Accordingly, SB 14 will likely “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”
The three judge court carefully considered Texas and distinguished SB14, as well as other laws and conditions, from other states. One distinguishing feature was Texas' size. The court's opinion attempts to strike a note of humor when discussing the requirement that would-be voters lacking photo identification would have to apply for a "election identification certificate" (EIC) at a Texas Department of Public Safety (DPS) office, and "almost one-third of Texas’s counties (81 of 254) lack" such an office:
This means that many would-be voters who need to obtain an EIC—individuals who by definition have no valid driver’s license—will have to find some way to travel long distances to obtain one. This is hardly an insignificant concern, especially given that “everything is bigger in Texas.” See, e.g., Rick Perry, Amid a Dim National Economy Texas Remains in the Spotlight, October 31, 2008, available at http://www.tradeandindustrydev.com/region/texas/amid-a-dim-national- economy-texas-remains-spotlight-554 (last visited August 28, 2012).
The opinion then resorts to another interesting citation:
Even the most committed citizen, we think, would agree that a 200 to 250 mile round trip— especially for would-be voters having no driver’s license—constitutes a “substantial burden” on the right to vote. Our own Federal Rules of Civil Procedure support this conclusion, specifying that witnesses are unavailable to testify if they must travel more than 100 miles to do so. See Fed. R. Civ. P. 45(c)(3).
The court found tremendous deficiencies in the United States' evidence and arguments, but Texas' deficiencies were ultimately much more serious, even without the burden of proof. The court found it worth detailing some of these problems:
during closing arguments, Texas’s counsel complained that they had been shouldered with an “impossible burden” in this litigation. 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, the legislature tabled or defeated amendments that would have:
- waived all fees for indigent persons who needed the underlying documents to obtain an EIC,
- reimbursed impoverished Texans for EIC-related travel costs,
- expanded the range of identifications acceptable under SB 14 by allowing voters to present student or Medicare ID cards at the polls,
- required DPS offices to remain open in the evening and on weekends,
- and allowed indigent persons to cast provisional ballots without photo ID.
Put another way, if counsel faced an “impossible burden,” it was because of the law Texas enacted—nothing more, nothing less.