After the three-day weekend, a major lawsuit against the Texas voter I.D. law will finally be heard in court. See, e.g., this backgrounder from NPR: http://www.npr.org/blogs/itsallpolitics/2014/08/29/344276585/texas-voter-id-law-goes-to-trial?utm_source=twitter.com&utm_campaign=politics&utm_medium=social&utm_term=nprnews
It’s useful at this point to look back at some of the arguments that the parties have made, and to consider what might happen next.
1. The fight over Rule 12(b)6 dismissal of the lawsuit
On October 25, 2013, the State of Texas filed its motion to dismiss this lawsuit, arguing that the plaintiffs had failed to state a claim or adequately demonstrate their legal justification for getting the suit into Federal court. (For those of you not versed on court procedural matters, a “Rule 12(b)6” motion like this gets its name from a particular rule of federal civil procedure – the rule itself basically requires that parties who file suit must give enough detail to show why they are entitled to file a lawsuit. Preemptive fights over the adequacy of a plaintiff’s pleadings are the traditional opening salvos fired by defendants in Federal court, and there isn’t anything particularly unusual or striking about the fact that the State filed such a motion).
Although the State was unsuccessful in its attempt to get a dismissal, we’re likely to see themes from this motion to dismiss reemerge throughout the current trial and appeal.
For those of you following along, the motion is available through the Moritz College of Law document repository, and can be found here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/VeaseyDfdntMot2Dismiss.pdf
The State’s position was that the plaintiffs had mischaracterized the 2011 addition of photo i.d. requirements as targeting racial and language minorities for exclusion from the voting process, when the law was racially neutral on its face (in other words, the Texas Legislature had not drafted a photo I.D. requirement that specifically applied only to members of protected minority groups), and that even if the application of the law disproportionately affected minority groups, such an effect was only incidental to the law’s design.
The State argued that Federal courts in other circuits have rejected the argument that voter registration restrictions have to be racially neutral in effect, pointing out that challenges to limitations on voting such as prohibitions against voting by convicted felons, voter registration list purges of non-voters, and other voter registration maintenance disproportionately impacts minority groups, but not illegally.
For instance, as a proportion of the whole population, minorities are overrepresented among the prison population, and as a result of their felony incarceration, this disproportionate group of minority felons are burdened with prohibitions against voting. But because the criminal laws aren’t explicitly shown to be enforced selectively against minorities, and because the disenfranchisement of felons isn’t predicated on the race of the felons, Federal courts have rejected arguments that felony disenfranchisement constitutes racial discrimination.
This argument is superficially appealing, but everyone knew that it was going to lose.
II. Why Texas lost the argument on the 12(b)6 motion, and why Texas will continue to lose throughout this trial
Although the argument in the Rule 12(b)6 motion contained a certain intuitive appeal, it was doomed to failure for one very obvious reason.
Suppose that you were a member of a state legislature, and you drafted a new proposed law regarding voting procedures. Further suppose that as you shopped your proposed law around, everyone you met told you that the sole effect your law would have would be to suppress voting by the poor and minority voters.
Suppose you asked for second and third opinions, but again kept hearing the same thing – that whatever your law was meant to accomplish, or claimed to combat, or was at least nominally supposed to resolve, it would simultaneously utterly and completely fail to achieve that stated objective, while at the same time limiting access to the polls for minority voters.
A law that punishes felony theft at least accomplishes the goal of punishing people who steal things. The people who are punished may be disproportionately likely to be members of a protected class, which could either be the result of social factors not considered in the drafting of the penal law, or the result of disproportionate poverty and incitements to crime that are not uniformly distributed throughout society. It could also be the result of intentional design in the penal law, but for the sake of argument, let’s assume that the law punishing theft wasn’t consciously written to disenfranchise minority groups.
In contrast, everyone who looked at the picture I.D. law before it was ever made into law said the same thing – the law addressed no actual need or concern on the part of the State, but solely accomplished one goal – limiting voting access by the poor (and disproportionately, by minorities, the elderly, and the young). That is not just an incidental consequence of the law, that is the law’s purpose, function and design. Additional picture I.D. requirements were added to the voting process in order to limit access to voting.
Everyone knows this. No one sincerely believes the alternative narrative that is offered (“voter I.D. protects against fraud”). No one on the defense believes that narrative, and (with the possible exception of some hypothetical population of credulous fools) no one in the general public believes it. The State’s attorneys have the unenviable task of dying on the hill of “electoral integrity” to salve the egos of Texas elected officials.
So if everyone (your friends, your enemies, your colleagues in the Legislature) told you the same thing, over and over again, and yet you persisted in promoting your draft law, ultimately getting it passed by a majority of like-minded self-interested legislators, wouldn’t any rational observer say that you had passed a law that was not merely accidentally or incidentally racist, but intentionally targeted at a group of voters you could not possibly hope to win over to your side?
This undead law should have been put in its grave three years ago.