Thursday, January 5, 2012

Will USDOJ Approve Or Reject Texas' Voter Photo ID Law?

Within the next ten days we should know whether the U.S. Department of Justice will approve or reject Texas' new voter photo ID law.

On November 16, 2011 Christian Herren Jr., the U.S. Department of Justice (USDOJ) Civil Rights Division Voting Section Chief, informed the Texas Secretary of State’s office by letter that the state has yet to provide the voter photo ID related information the USDOJ requested at the end of September.

In the letter, Herren informed the Texas Director of Elections, Ann McGeehan, that without the requested information the USDOJ is unable to determine if the voter photo ID law will “have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group.” The USDOJ must make that determination before the law may be implemented.

Texas has 60 days from the date of Herren's Nov. 16th letter to respond. If Texas does not return the requested information to the USDOJ by Jan. 16, 2012, the USDOJ will likely reject Texas application for preclearance of SB14 - Texas' voter photo ID legislation. The USDOJ will likely state roughly the same objections it stated to reject South Carolina's photo ID law on Friday, December 23, 2011. Texas, then, would likely appeal the rejection through the courts.

In early December, this blog published an article asking, "Does Texas Want the USDOJ To Reject Its Voter Photo ID Law?" Given Texas still has not replied to Herrin's letter of Nov. 16th, it is becoming ever clearer that Texas wants to the USDOJ to reject its voter photo ID law, so the state can appeal the USDOJ's rejection to the Supreme Court of the United States (SCOTUS) challenging the constitutionally of the preclearance rule, included in Section 5 of the VRA. Texas and South Carolina undoubtedly will jointly take their "constitutionally" arguments to the SCOTUS.

"Now the REAL Debate Can Begin: How DOJ's SC Voter ID Objection FINALLY Brings Data to the Discussion" - by Doug Chapin, Humphrey School of Public Affair - Program for Excellence in Election Administration:

Way back in late August, I blogged about the Voting Rights Act review by the U.S. Department of Justice (DOJ) of South Carolina's new voter ID law. In that post, I said:

Regardless of the outcome, DOJ's review of SC's photo ID laws will give us something we haven't much of in the debate to date: hard data. While this data will only describe one state's experience, the lessons learned may finally enable the field to approach voter ID - indeed, all election policy - from an empirical rather than a rhetorical perspective.

Fortunately, I was right; DOJ's December 23 objection letter avoids the familiar (I would say tired) rhetoric about the impact of voter ID and jumps right into the data. In objecting to South Carolina's ID requirement, DOJ makes the following observations:

  • + The State provides no evidence of the fraud that ID is designed to prevent;
  • + Nearly 240,000 (almost 9%) of South Carolina's registered voters lack ID;
  • + Minority ("non-white") voters are 20% more likely to lack ID;
  • + county-to-county figures for lack of ID range from 6.3% to 14.2% - and encompass several of the state's largest minority populations; and
  • + all of these figures suggest that 81,938 minority registered voters lack required ID.

While the objection has set off the predictable partisan firestorm about the wisdom and courage (or lack thereof) of the DOJ, it has also elicited some empirical resistance that could be important if and when the objection is reconsidered, either by DOJ or a federal court.

First, as I noted just before the holiday break, the data on which DOJ based its analysis may not be reliable. Specifically, the state DMV announced on December 22 - the day before the objection came down - that the 240,000 figure provided to DOJ by the State Election Commission was incorrect because of matching problems and should be closer to 30,000. [The 30k number has been erroneously report in the media. The actual number is just over 90k.] This number would shrink the percentage of registered voters without ID to a little more than 1%. That number may still be too high for DOJ - especially when county or racial disparities are taken into account - but it's a significant drop from 9%.

Second, in a portion of the letter which (unsurprisingly) didn't get media coverage, DOJ notes that several mitigating factors advanced by the state - free IDs, public education and outreach to citizens lacking ID - weren't considered because the procedures to accomplish these programs weren't final at the time of the submission. DOJ explicitly notes that such measure could "potentially mitigate" the discriminatory effects of the ID requirement - as Louisiana did with its own ID requirement in 1997 after an initial 1994 objection.

Strip away all of the rhetoric, then, and this is where we stand on an empirical debate about SC's voter ID law:

  1. DOJ says that the data the state provided suggest that voter ID would disenfranchise 81,938 minority voters;
  2. DMV is saying that its data proves that number is almost certainly too high; and
  3. The state has yet to finalize or submit mitigating measures that could drive the number down even further.

These are important facts; yet even as I decry the rhetoric, I have to admit that these decisions will not be made in a partisan vacuum. Still, I think the debate is better off for the numbers, as I noted in an introduction to Pew's Data for Democracy report in 2008:

We also need to understand that data merely illuminates problems. It does not solve them. Disagreements over values are resolved in the political arena -- but data helps put flesh on the bones of what is often a skeletal debate over values.

A new law that will enfranchise hundreds of new voters but also opens the door to dozens of fraudulent votes will be acceptable to some and an anathema to others. Conversely, measures preventing fraud but also preventing otherwise eligible voters from casting ballots will spark similar disagreement. Data helps put these discussions on an empirical level, but the decisions themselves will go far beyond the data. Still, these disagreements are better, not worse, for the availability of data.

We've reached that moment in the analysis of South Carolina's voter ID requirement. DOJ has put the data in the spotlight - now let the REAL debate begin.


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