Friday, September 23, 2011

DOJ v. SCOTUS On Texas' Voter Photo ID Law

All IDs must be unexpired or expired no earlier than 60 days before the election. Acceptable identification includes:
  • A driver’s license, election ID certificate, or personal ID card issued by the Department of Public Safety (an election certificate issued to a person 70 years or older does not expire);
  • U.S. military ID card that contains the person's photograph;
  • U.S. citizenship certificate with a photograph;
  • U.S. passport; or
  • A license to carry a concealed handgun.
Student IDs and Military Veteran IDs are not accepted in Texas for purposes of identification for voting.
Updated Friday, September 23, 2011 @ 6:45 PM

The status of Texas' new voter photo identification law remains unresolved. In response to Texas' request for pre-clearance from the U.S. Department of Justice (USDOJ) voting section, the head of the Department's voting section today wrote Ann McGeehan, Texas Director of Elections, asking for more details on how the state will implement the stricter voting law signed by Republican presidential candidate and Texas Gov. Rick Perry (R) last May.

"The information sent is insufficient to enable us to determine that the proposed changes have neither the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group," wrote T. Christian Herren Jr. , chief of the Justice Department's voting section.

Herren wrote McGeehan saying that the DOJ needs to know specifics on how the state will alert voters about the new government issued voter photo ID requirement. Texas officials have said that 605,576 residents do not have a Texas drivers license, photo ID card [, or likely any one of the other required government issued photo ID documents]. USDOJ officials also want to know how many of those residents without IDs have Spanish surnames and an explanation of when and where the state will make free voter photo identification certificates available, as well as specifics on how they will educate the public about how to obtain such certificates.

The state must now re-submit the pre-clearance request to the USDOJ with the additional information requested that includes, among others things, how election officials will be trained to correctly implement the voter photo ID law. The USDOJ will have 60 additional days to review the state’s revised request.

Acceptable forms of ID include: a Texas driver's license; a personal ID issued by the Texas Department of Public Safety; an election certificate, which is a new form of state photo identification created by the legislation; a U.S. military ID card; a U.S. passport; or a Texas concealed handgun permit. State university IDs and veteran's IDs are not acceptable. (Herren's letter to McGeehan at the bottom of this article)

Original Post Wednesday, September 14, 2011 @ 8:56 PM

Because Texas and South Carolina have a history of voting rights discrimination, the states are required to have changes to their election laws pre-cleared by the U.S. Department of Justice or the courts under Section 5 of the Voting Rights Act.

A broad coalition of civil and minority rights groups are urging the U.S. Department of Justice (USDOJ) to reject Texas’ and South Carolina's petitions to the USDOJ for "pre-clearance" approval, as mandated by section 5 of the 1965 Voting Rights Act, of the new strict voter photo ID laws passed this year by their state legislatures.

“This will adversely and disproportionately affect citizens of color who do not have the financial wherewithal as their White counterparts to secure the documentation necessary to meet the Act’s strict requirement,” states a letter submitted as public comment by the Advancement Project, the American Civil Liberties Union, the Asian American Justice Center and the Southwest Workers Union. (PDF)

The Young Voters Education Fund, The Brennan Center for Justice, the Lawyers’ Committee for Civil Rights Under Law, and the Texas State Conference of the NAACP have also joined in objecting to Texas’ Voter ID law.

The objections assert that Texas has not met its obligation under Section 5 of the Voting Rights Act to demonstrate the law was not motivated by a discriminatory purpose and does not have discriminatory effects, and urges the Department of Justice to deny Texas’ request for pre-clearance of the law.

States that must seek the USDOJ approval for any changes to election law. Under the Voting Rights Act, changes to Texas’ election laws must be “pre-cleared” by the United States Department of Justice or a federal court.
Voter ID Requirement By State
National Conference of State Legislatures

In July, 16 senators sent a letter to Attorney General Eric Holder calling for the DOJ to examine whether the strict voter photo ID laws violate the Voting Rights Act. Rep. Debbie Wasserman Schultz (D-Fla.), chair of the Democratic National Committee, has also been sounding the alarm on the new voting laws since she became Chair of Democratic National Committee in May.

Before 2011, there were just two states with strict photo ID laws: Georgia, which received USDOJ clearance for its strict voter ID law under the Bush administration, and Indiana which won U.S. Supreme Court approval for its law in 2008. Three other states -- Kansas, Tennessee and Wisconsin -- also passed new strict voter photo identification laws in 2011, but those states are not covered under the Voting Rights Act and therefore do not need the USDOJ's clearance to enforce their new voting law.

Under the strict voter photo identification laws in those seven states (Georgia, Indiana, Kansas, Tennessee, Wisconsin, Texas and South Carolina) voters must show one of a very limited selection of government issued photo ID documents in order to vote. Voters who are unable to show a photo ID at the polls are permitted to vote a provisional ballot, which is counted only if the voter returns to election officials within several days after the election to show a photo ID.

An estimated one million U.S. citizens living in Texas and millions of Americans living in other states may not have a drivers license or other form of non-expired government-issued photo identification, including disproportionate numbers of African-American, elderly, disabled and student voters. People in these groups of voters have historically voted in higher proportions for Democratic candidates.

Listen to NPR's report on the Supreme Court's
decision on Indiana's Voter ID Law

In its 2008 Indiana Democratic Party v. Rokita 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.

For the USDOJ to reject Texas’ and South Carolina's petitions for pre-clearance of their new strict voter photo ID laws, attorneys in the DOJ's Civil Rights Division will likely consider SCOTUS' 2008 Indiana Democratic Party v. Rokita precedent setting decision. USDOJ lawyers likely will reject the state petitions only if they can find "concrete proof of the burden imposed" by the photo ID requirement, or that the laws are definitively and intentionally discriminatory.

The Brennan Center for Justice at the NYU School of Law found in a 2006 study that more than 20 million individuals or 11% of voting-age American citizens — and an even greater percentage of African American, low-income, and older citizens — do not have current and valid government-issued photo IDs. Twenty-five percent of African American voters do not have a valid government-issued photo ID, compared with 8 percent of whites, according to the Brennan Center's research. The research also found that 15 percent of voters earning less than $35,000 per year do not have such an ID. Further, many citizens find it hard to get government photo IDs, because the underlying documentation like birth certificates (the ID one needs to get ID) is often difficult or expensive to obtain. These findings have been confirmed by multiple independent studies.

But after hearing these facts in the 2008 Indiana Democratic Party v. Rokita case Justices Stevens, Roberts, Kennedy, Scalia, Thomas and Alito said in their majority decision that those numbers alone do not provide concrete proof that Indiana's photo ID law constitutes either a burden to voting or an intentional discriminatory barrier to voting.

Further, in the 2009 NAMUDNO v. Holder decision, the Supreme Court’s conservatives strongly hinted that they may strike down Section 5 of the VRA requiring Texas and several other states to pre-clear new voting laws.

So, as a practical matter, DOJ's reach is limited. Officials with DOJ's Civil Rights Division are reviewing voter ID laws passed in South Carolina and Texas because both states have a history of discrimination and are covered by Section 5 of the VRA. If the DOJ rejects the voter ID laws in those states, the states will appeal to the Supreme Court, where the DOJ runs the risk of seeing the court strike down Section 5 altogether. And for all the other states that passed voter ID laws this year, that aren't subject to Section 5 of the Voting Rights Act, DOJ intervention will not happen - at least not until after the 2012 election.

Section 2 of the Voting Rights Act also forbids states from enacting voting restrictions that have a greater impact on minority voters than on others. There is, however, a catch. Samuel Bagenstos, who was until recently the number two official in the Civil Rights Division, has said that the DOJ can't bring a Section 2 lawsuit claiming voter disenfranchisement, until after voters have been disenfranchised:

“In order to bring a Section 2 case, you’d have to as a practical matter show two things. One, that there’s a significant racial disparity and two, that the burden of getting an ID is significant enough for us to care about.

Any Section 2 case would almost certainly have to wait until after the 2012 election, since the evidence that the laws were discriminatory “can only be gathered during an election that takes place when the law is enacted.”

The Supreme Court’s 2008 decision in the Indiana voter ID case suggests the court would be skeptical of a Section 2 case, unless there is conclusive evidence of widespread and significant voter disenfranchisement. Evidence that large numbers of people without any of the prescribed photo ID documents tried and failed to obtain those documents before election day and that their their provisional votes were not counted, after they went to the effort of going to a polling place to vote knowing they could only cast provisional ballot that would not be counted.

The broad coalition of civil and minority rights groups, Democratic Party officials and Democratic law makers who are urging the U.S. Department of Justice Civil Rights Division to reject Texas’ and South Carolina's pre-clearance petitions, so far, continue to only site facts a majority of Supreme Court Justices already found unconvincing in the 2008 court case. What one knows and what one can prove in court are, as the saying goes, two entirely different things!

Will DOJ Civil Rights Division lawyers ignore SCOTUS' precedent setting 2008 decision to deny the pre-clearance petitions - lacking other concrete evidence of burden or discrimination?

If the DOJ does deny the pre-clearance petitions, then Texas and South Carolina will appeal the decision to the U.S. District and Supreme Courts. Will those courts reverse the Supreme Court's 2008 decision?

Should we really hold any expectation that Texas' voter photo ID law will not be enforced at some point in 2012?

Texas submitted its pre-clearance petition to the USDOJ on July 25, meaning the DOJ has until September 23, 2011 to object.

Related: (list updated Nov 17, 2011)

Texas Voter ID Letter - Sept. 23, 2011

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