A federal three-judge panel, composed of D.C. Circuit Judge David Tatel, and District Court Judges Rosemary Collyer and Robert Wilkins, ruled today against a Texas Photo I.D. Law that would require voters to present photo I.D. to election officials before being allowed to cast ballots. The three-judge panel found that the law imposes "strict, unforgiving burdens on the poor" and noted that racial minorities in Texas are more likely to live in poverty.
Originally set to go into effect on January 1, 2012, the Texas Photo I.D. Law (SB 14) would require voters to present one of a limited selection of government issued photo I.D. to election Judges in order to qualify to vote. The accepted forms of currently dated photo identification are: Department of Public Safety issued Texas driver's license, Texas election I.D., or personal identification card; Texas concealed handgun license; U.S. military I.D. card; U.S. citizenship certificate; or U.S. passport.
Update August 30, 2012 @ 6:30pm - Texas had hoped to enforce the Photo I.D. law for the general election this November. While Texas Attorney General Greg Abbott said he will appeal the DC Court decision to the U.S. Supreme Court, the Associated Press reported late today that Abbott said the appeal process can not be complete in time for the law to be enforced for the election this November.
The issue is whether the 2011 law violates the federal Voting Rights Act by making it harder for minorities to cast ballots. Under Section 5 of the Voting Rights Act, the Justice Department or a federal court is required to pre-clear laws affecting voters before they go into effect in jurisdictions with a history of voting discrimination -- and that includes Texas. Texas has the burden at trial to prove that its voter photo ID law, signed into law by Gov. Perry last year, does not have the purpose or effect to deny a minority citizen the right to vote.
Here are key parts of the court's ruling:
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.” 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.
To the contrary, 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.
...According to undisputed U.S. Census data, the poverty rate in Texas is 25.8% for Hispanics and 23.3% for African Americans, compared to just 8.8% for whites. This means that the burdens of obtaining [voter ID] will almost certainly fall more heavily on minorities, a concern well recognized by those who work in minority communities.
…Undisputed census data shows that in Texas, 13.1% of African Americans and 7.3% of Hispanics live in households without access to a motor vehicle, compared with only 3.8% of whites.
…while a 200 to 250 mile trip to and from a DPS [Department of Public Safety] office would be a heavy burden for any prospective voter, such a journey would be especially daunting for the working poor. Poorer citizens, especially those working for hourly wages, will likely be less able to take time off work to travel to a DPS office—a problem exacerbated by the fact that wait times in DPS offices can be as long as three hours during busy months of the year. This concern is especially serious given that none of Texas’s DPS offices are open on weekends or past 6:00 PM, eliminating for many working people the option of obtaining an EIC [“election identification certificate”] on their own time. A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote. The same is true when a law imposes an implicit fee for the privilege of casting a ballot, like the $22 many would-be voters who lack the required underlying documentation will have to pay to obtain an EIC. “[W]ealth or fee paying has…no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.”
…Significantly, Texas disputes none of the facts underlying this conclusion—not the $22 cost for a birth certificate, not the distance between DPS offices, not the poverty rates for minorities in Texas, not the disproportionate vehicle access rates.
The ruling on Texas' law comes in the same week that South Carolina's strict photo ID law is on trial before another three-judge panel of the same federal court. A court ruling in the South Carolina case is expected before for the November election.
Texas Attorney General Greg Abbott announced he “will immediately” appeal the DC court decision to the U.S. Supreme Court - so the photo I.D. law is not yet dead for future elections. Abbott told the Associated Press late Thursday that there is now definitely not enough time to salvage the law for the November election.
In its 2008 Indiana Democratic Party v. Rokita (Crawford v. Marion County Election Board) decision (findlaw) the Supreme Court of the United States (SCOTUS) upheld Indiana’s strict voter photo identification law, which is very similar to Texas', South Carolina's and other states' new voter photo ID laws. (Todd Rokita was Indiana's Secretary of State)
The Voter ID Law was enacted in Indiana, as in other states, by a Republican-dominated legislature on a party line vote. The Democratic Party challenged the Indiana law, contending that it imposed an unconstitutional burden on the right to vote for poor and elderly voters.
The Democratic Party contended then as it does today that many poor and elderly have no driver's licenses and cannot afford the fees to obtain their birth certificates, nor can they afford transportation to the county seat before each election to file an affidavit of indigency, the only other way that they can vote.
In its decision the Court conceded that the law does pose burdens, and it conceded that there is no recorded case of voter fraud by impersonation in Indiana. But the justices still upheld the law on a 3-3-3 vote. Justice John Paul Stevens wrote the lead opinion for himself, Chief Justice Roberts and Justice Kennedy.
The three said that without concrete proof of the burden imposed and proof of the numbers of people affected, the law could not be invalidated because it represents a legitimate attempt to prevent fraud in the future and inspire voter confidence.
Justices Scalia, Thomas and Alito said any state law would be okay as long as it was not intentionally discriminatory.
Justices Souter, Ginsburg and Briar dissented. They noted, for instance, that the fees for obtaining your birth certificate alone are more even adjusted for inflation than the $1.50 poll tax the Court struck down 42 years ago.
While DC Circuit Court said today that the 2008 Supreme Court ruling did bear upon the general question of state power to pass such laws, it concluded the situation was different between the two states and between their two specific laws. The issue in the Indiana case was whether such a law was valid if applied to all voters in a state, while the issue in the Texas case is what impact such a law has on minority voters, the court said. (The question is whether the Supreme Court will agree with the DC Circuit Court's conclusion.)
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