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.

Obama DOJ Questions South Carolina's New Voter Photo ID Law

In an Aug. 29, 2011 letter, T. Christian Herren, Jr., Chief of the Obama DOJ's Civil Rights Division, not only demanded that South Carolina, within 60 days, provide additional information about its recently enacted polling place photo ID restriction law, but stated that if SC failed to provide a timely "response...the [U.S.] Attorney General may object to the proposed changes consistent with the burden of proof placed upon the submitting authority."

Herren noted that SC has the "burden of demonstrating" that the new polling place photo ID law was neither enacted "for a discriminatory purpose nor will have a retrogressive effect."

SC's Republican Attorney General, Alan Wilson, in an apparent recognition that pre-clearance is likely to be denied, told those in attendance at a GOP fundraiser that he had "no faith" that the DOJ "will do the right thing." He vowed to litigate the matter "up to the U.S. Supreme Court if necessary."

The ACLU submitted a 15-page letter to the U.S. Department of Justice (DOJ) on August 5, 2011 asking that the DOJ to deny South Carolina’s request for pre-clearance of its new polling place photo ID law under Section 5 of the Voting Rights Act. The ACLU letter argues that proponents’ unsubstantiated claims of "voter fraud" were but a pretext for unlawful discrimination and that statistics suggest that the new law would operate as an illegal poll tax, especially for the disproportionate number of African Americans who live below the federal poverty level in the state.

South Carolina's history of voting rights violations require federal oversight of election law changes, including requiring voters to show photo ID.

Sen. Durbin To Chair Hearings On Voter ID Laws

Sen. Dick Durbin (D-IL) will chair a hearing next week examining the rash of voter ID laws passed by state legislatures this year amidst concerns that such laws could suppress Democratic turnout across the country.

Durbin, who chairs the Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Human Rights, announced Friday that the Sept. 8 hearing will feature testimony from Judith Brown Dianis, the co-director of the Advancement Project; Loyola Law School Professor Justin Levittl; and former Bush-era Justice Department official Hans van Spakovsky, who's now with the Heritage Foundation. It's titled "New State Voting Laws - Barriers to the Ballot?"

"These new laws significantly reduce the number of early voting days, require voters to show restrictive forms of photo identification before voting, and make it harder for volunteer organizations to register new voters," Durbin's office said in an announcement. "Supporters of these laws argue that they will reduce the risk of voter fraud. The overwhelming evidence, however, indicates that voter impersonation fraud is virtually non-existent and that these new laws will make it harder for hundreds of thousands of elderly, disabled, minority, young, rural, and low income Americans to exercise their right to vote."