Lies, Damned Lies, and Databases – The Fight over Discovery in the Texas Voter I.D. Lawsuit

The ongoing lawsuit over Texas picture I.D. requirements has generated a dispute between the State of Texas and the various plaintiffs over how to figure out how many people have been disenfranchised by the new voter I.D. law.

The Department of Justice envisions being able to say with some level of statistical confidence that the Texas law has caused ___________ (insert as precise a number as possible) qualified voters to be disenfranchised, and that of that number, ___________ (insert another precise number) are members of a protected class of minority voters, who otherwise would have been able to vote, but for the state’s legislative action.

This is an oversimplification, of course. With sufficiently accurate information, DOJ could do things like track precinct-by-precinct racial discrimination at the polls, identify specific households targeted for removal from the voter rolls and compare race, identify discrimination against voters with disabilities, create massive cross-referenced charts and enormous four-color maps, pie charts, bar graphs, histograms, computer animation, and so on, all with the aim of overwhelmingly and conclusively demonstrating that the Texas Legislature enacted a blatantly discriminatory law intending to and succeeding at denying the vote to people based on race, minority status, or disability.

The State of Texas, meanwhile, has briefed a number of legal defenses to the DOJ’s requests, including “legislative privilege” (for internal documents relating to the legislative policy-making process), the defense of “we don’t have that,” and the defense of “we can’t get that for you.”

As things currently stand, the judge has issued a series of discovery orders that reflect a perfect compromise, in that the orders leave all sides equally unhappy. DOJ didn’t get the trial delay (to 2015) that it needed to do sophisticated data gathering and technical analysis of the information it hopes to get, and didn’t get an order making Texas give up the data that Texas says it doesn’t have.

The defendant, on the other hand, has one day to turn over all the drivers license, concealed-carry handgun license, and personal i.d. license information to DOJ. The link to the agreement and background information is helpfully provided by the Texas Redistricting blog.

I speculate that DOJ and Texas are so far apart in their discussions of raw data in part because of differences in bureaucratic culture.

Assume for the sake of argument that members of the Texas Legislature collectively and intentionally planned to engage in the wholesale disenfranchisement of minority voters. In so doing, the lawmakers and their staff didn’t need any particular precision or careful data-based legal engineering. It was enough for them to intuit that any increase in the transaction costs associated with elections disproportionately affect the poor and minorities, as well as elderly and first-time voters. They didn’t actually need or want any data about the effect in detail, because the political purpose of the voter I.D. law isn’t to disenfranchise based on careful targeting. It’s to disenfranchise over the long haul.

It’s to put the thumb on the roulette wheel; to count cards at the blackjack table; to nudge the pinball machine without causing it to record a tilt. No subtlety or particular mathematical accuracy is needed or desirable (as any such accuracy would carry with it a discoverable paper trail, but more importantly, would actually cost money to create).

I don’t think the State of Texas is lying to hide its secret stash of high-level sociological evidence of voter disenfranchisement. It doesn’t have any secret stash of high-level sociological evidence of anything, because that would cost money.

Meanwhile, DOJ could argue to Texas with some despair, “you mean you passed a law without knowing what it would actually do?” To which the answer is “Yes. Of course. Have you actually been to our state lately?”