Saturday, September 3, 2011

Texas Cites Bush-Era DOJ Approval Of Voter ID Law In Pre-Clearance Petition

Texas officials cited Pres. Bush's Justice Department's approval of Georgia's voter photo ID law as a reason for the Obama Administration's Department of Justice (DOJ) to pre-clear the state's new photo ID law.

Gov. Rick Perry, now in the running for the Republican presidential nomination, signed Texas' voter photo ID bill into law in May. Perry had designated the measure as an "emergency item," despite a lack of evidence that voter impersonation fraud, that the law purports to prevent, is a major problem. The new Texas law requires voters show one of five forms of unexpired ID when they go to vote: a drivers license, military ID, a passport, a concealed handgun license or a voter ID card the state provides for free.

The bipartisan National Conference of State Legislatures reports that altogether this year, 20 states which did not have voter ID laws and 14 states that already had non-photo ID laws have considered legislation requiring citizens have a photo ID to vote.

Of those 34 states which considered voter ID legislation, seven of them enacted laws prescribing a very limited selection of dated and unexpired government issues photo ID cards as acceptable for voting: Alabama, Georgia, Kansas, South Carolina, Tennessee, Texas and Wisconsin. All must receive pre-clearance from the Department of Justice's Civil Rights Division before the laws can be enforced. An estimated one million voting age U.S. citizens in Texas do not have any one of the prescribed unexpired government issues photo ID cards.

Texas Secretary of State Hope Andrade wrote a letter to the chief of the US Dept. of Justice Civil Rights Division's voting section in July seeking pre-clearance of the state's new voter photo ID law, as required by section 5 of the Voting Rights Act.

Andrade called the Texas law "remarkably similar" to Georgia's pre-cleared voter ID law. "In fact, DOJ pre-cleared Georgia's original photo-identification law even before Georgia enacted its free ID provision and its most recent extensive voter education mandate, which Georgia added in a subsequent legislative session."

But the approval of the Georgia voter ID law was done by political officials in the Bush Justice Department over the objection of career employees in the voting section, who had recommended that the law not be approved. Within a year of recommending that Georgia's voter ID law not be pre-cleared, three of the career employees who made the recommendation had either left or were transferred out of the voting section.

"They weren't really interested in investigating Georgia's submission," former DOJ lawyer Toby Moore told TPM back in 2007. "They were mainly interested in assembling evidence to support pre-clearance. Any attempt to bring up counter-evidence to suggest a discriminatory impact was ignored or critiqued. We were told it was our own bias.... Any evidence in support was embraced uncritically."

The Justice Department's Civil Rights Division alumni joke it is recovering from post traumatic stress disorder following the politicization of the section that took place during the Bush administration.

"It is evident that the Section, at times at the behest of DOJ's highest ranking officials, prioritized a voter fraud prevention and prosecution agenda designed to suppress minority voter turnout; and decisions on some Section 5 submissions were crafted to serve partisan ends," an Obama-Biden transition team report on the Civil Rights Division found.

The two of the states which passed voter photo ID laws during their 2011 legislative sessions - Texas and South Carolina have have file pre-clearance requests with the DOJ. Both states are trying to convince the Justice Department that their laws don't have the intent or effect of suppressing the minority vote.

"There's a lot of reason to think that voter ID laws, depending on how they're constructed, could have a harmful effect on minority voters," University of Michigan Law School Professor Samuel Bagenstos told TPM. Bagenstos was the number two official in the Civil Rights Division until he returned to Michigan this summer.

The VRA, Bagenstos said, "puts the burden on the state to prove that the change in voting isn't discriminatory in purpose and effect."

Even so, in a 2008 ruling the Supreme Court upheld Indiana’s voter photo identification law, which is very similar to Texas' new voter photo ID law, declaring that a requirement to produce photo identification is not unconstitutional and that the state has a “valid interest” in improving election procedures.

In a 6-to-3 ruling in one of the most awaited election-law cases in years, the court rejected arguments that Indiana’s law imposes unjustified burdens on people who are old, poor or members of minority groups and less likely to have driver’s licenses or other acceptable forms of identification.

So, even if the DOJ does not give its clearance for the new voter photo ID laws in Texas and the other states, the court will altimately give its clearance on appeal.

A Tea Party affiliated group True the Vote held a national convention in Houston last March to actively support restrictive voter photo ID measures.

Texas Voter Photo ID Summary

Effective Dates (Pending U.S. Dept. of Justice clearance)

Starting September 1, 2011 the Secretary of State, and the voter registrar of each county shall provide notice of the ID requirements for voting in each language in which voter registration materials are available. Required government issued photo identification must be presented to polling place election clerks for all elections occurring after January 1, 2012.

Photo IDs Permitted

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 to the person by the Department of Public Safety (i.e., 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 issued to the voter with their photograph;
  • U.S. passport; or
  • A license to carry a concealed handgun.

*Student IDs are not accepted in Texas for purposes of identification for voting.

Exceptions Available

A person may obtain an exemption from the ID requirement on the basis of disability if they produce a statement in a form determined by the SOS that the applicant does not have any of the prescribed forms of identification, and they have an:

  • U.S.S.S.A. determination of disability, or
  • U.S.V.A. disability rating of 50%.

Affidavit Alternative

A voter without a photo ID may cast a provisional ballot, which will count if she signs an affidavit attesting to the fact that she:

  • has a religious objection to being photographed, or
  • does not have an ID as a result of a natural disaster declared by the U.S. President or Texas’ Governor no earlier than 45 days before the election and that disaster caused the inability to access the voter’s ID.

The affidavit may be signed at the time the provisional ballot is cast or at the time the voter appears before the voter registrar within 6 days following the election to have the provisional ballot counted.

Early/Absentee Voting ID Requirements

The photo ID requirement does not apply to absentee voting, including early voting by mail. Photo ID requirements apply to all in-person or curbside early voting.

Free IDs

Texas will issue an Election Identification Certificate (EIC) to persons who do not have another qualifying ID for purposes of voting. The applicant must present a voter registration card or register to vote at the time of applying for an EIC. There is no fee for an initial or duplicate EIC.

Public Education Requirements

The Secretary of State, and the voter registrar of each county that maintains a website, shall provide notice of the ID requirements for voting in each language in which voter registration materials are available. The Secretary of State shall prescribe the wording of the notice to be included on the websites, and shall also conduct a statewide effort to educate voters regarding the identification requirements for voting. The county clerk of each county shall post in a prominent location at the clerk’s office a physical copy of ID information in each language in which voter registration materials are available.


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