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Ari Berman analyzes the effects of the Fifth Circuit’s March 9, 2016 order. This is bad news for the plaintiffs, and for Texas voters generally. The foot-dragging has been especially galling, given the airtight factual evidence in support of the plaintiffs’ arguments.
(Note to the non-attorneys out there: the linked article explains this, but not everyone knows what “en banc review” means. After five months of delay, the court has collectively decided that the previous decisions regarding the State’s unconstitutional voter I.D. law need to be reconsidered by the entire panel of all the Fifth Circuit appellate judges, the majority of whom happen to be conservative political appointees).
As an additional follow-up; the Fifth Circuit Court of Appeals has rebuffed arguments for stopping implementation of the unconstitutional law until after the whole body of judges hear additional oral argument later this year. The law will likely continue to be enforced through the November 2016 presidential election, despite the fact that it has been found to be unconstitutional.
Ah, Texas, sweet Texas. Badly-redistricted, voter-hostile Texas. Because the 2011 redistricting lawsuits still aren’t resolved, there is a general sense among election officials that one of two things will happen in the next two months:
- Either the Western District of Texas, San Antonio Division redistricting panel will be compelled to issue a new and more equitable redistricting plan for the State sometime prior to the candidate filing period, or
- Having failed to hold time in a bottle, the court will reluctantly apply the map used in the 2014 elections once again for 2016, notwithstanding the increasingly problematic and widening gap between that map and the actual state demographics.
The Republicans have a rather handy ace up their sleeve to shoot down the remedial application of any corrective court-ordered redistricting plan, and that ace is their faith in the misapplication of a little U.S. Supreme Court case called Purcell v. Gonzalez, 549 U.S. 1 (2006). The position of both the 5th Circuit and the conservative majority on the U.S. Supreme Court appears to be that because Purcell called for caution in the application of last-minute court orders that might affect election schedules, it therefore follows that court orders protecting voting rights must not be enforced if an election is right around the corner. And an election is always, always just around the corner.
Of course, that’s just stupid, as Justice Ginsberg more than adequately explained in her dissent in Veasey v. Perry on the eve of the November 2014 election. When actual harm is being done to voters through actual violations of the law, the violator should not be able to say, “Oh well. Sorry about breaking the law, but it’s so close to the election. We just don’t have time not to break the law.”
If the judicial redistricting panel is going to fix Texas districts, it needs to do so by no later than November of this year – owing to increasingly early candidate filing deadlines to accommodate the Texas primary elections, district boundaries need to be known by no later than … well … now, if you want to be precise about it. The first day to file for party precinct chair elections is Tuesday, September 15th. Yes, as in September 15th, 2015. As in two weeks. The first day for candidates to file is one month later, on November 14th. The deadline to file is December 14th. Yes, as in this year.
The Texas Tribune has a nice background piece on the looming problem. (Election Managers Partying Like It’s 2012). If I were king, I wouldn’t care whether the parties got to have primaries or not – primaries are private elections conducted by social clubs (i.e., political parties). Primaries are beauty pageants for candidate nominations, and there are all sorts of alternatives in place for picking party candidates – caucuses, nominating committees, etc. Could a court order disrupt the primaries? Well, such are the wages of sin; nobody asked the Legislature to do an illegal job of redistricting back in 2011.
On a related note, Rick Hasen nicely excoriates our fair state in this recent analysis for Slate Magazine. (Texas Two-Steps All Over Voting Rights).
As a number of news organizations have noted, Justice Ginsburg’s dissent in Veasey v. Perry contained a minor factual error – originally, the dissent contained a sentence stating that Texas did not accept veteran’s I.D.s as acceptable forms of photo I.D. in the polling place.
In fact, this statement was true when S.B. 14 was signed into law in 2011 – veteran’s i.d.s were not acceptable forms of identification, specifically because they were not subject to regular renewal, and were not regarded as the equivalent of active military i.d.s.
Really, the statement that the law doesn’t permit the use of veteran’s I.D.s is still true, or at least would be true, but for a clever bit of sophistic maneuvering by the State.
Nothing in the language of the law has changed between 2011 and now, and so Justice Ginsburg’s mistake is entirely understandable. In fact, to have not spoken in error, she would have had to know about the unwritten internal politics surrounding the implementation of the voter I.D. law.
When Section 63.0101 of the Texas Election Code was amended to impose the requirement for photo I.D., subsection (2) of that section defined one form of acceptable I.D. as being “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.”
Media sources and veterans groups castigated the law for what what veterans groups saw as a betrayal of their constituency. The outrage caught Governor Perry and the bill drafters by surprise, and came at an awkward time for Governor Perry (who was at that time campaigning for the Republican nomination in the 2012 Presidential election, and who was touting his support for a strong military).
The proponents and drafters of the Texas picture I.D. law had been so eager to disenfranchise minorities, the poor, the disabled, the elderly, and students, etc., that they had rushed headlong into accidentally disenfranchising a large, politically active, and vocal voting bloc with symbolic importance for conservatives.
The political reaction was swift. After delicate consultations (the rumblings of which are lightly hinted at within an October 17, 2013 memo issued by Keith Ingram, which among other things, urges county election officials to “discard” earlier materials regarding voter I.D.), the Secretary of State determined that the proper interpretation of the law was that veteran’s I.D.s were acceptable because they didn’t expire (glossing over the fact that technically, veteran’s I.D.s are not military I.D.s, and veterans are not members of the military). But things were briefly touch and go between groups touting veteran’s rights and the State of Texas.
Of course, what the episode illustrated in a more general way was the fundamental hypocrisy of the 2011 law – that the law was subject to ad hoc changes in its application and textual interpretation to benefit one group of voters over another, if those voters happened to be “the right kind of voters.”
As expected, the Federal District Court in Corpus Christi has found that the Texas voter I.D. law is an unconstitutional burden on the voting rights of minority voters and constitutes a poll tax.
As further expected, the court’s decision also finds that the State intentionally discriminated against minority voters. As a result, the court indicates that it will issue additional orders following a status conference.
I expect that the State will need to do preclearance submissions pursuant to the terms of a court order under Section 3(c) of the Voting Rights Act for at least the foreseeable future.
Gosh, I hope the Elections Division at the Texas Secretary of State kept all of its Section 5 paperwork, file cabinets, file shelves, and materials for preclearance submissions. It’d be a shame if they had to start up again from scratch.
And, as expected, Greg Abbott has invoked “voter confusion” as the impetus for seeking a quick suspension of the decision from the 5th Circuit Court of Appeals (also known as The Worst Circuit).
By the way, doesn’t it strike you as a bit … conflict of interest-ish … for an actively campaigning candidate for governor to ask a federal court for political favors on the eve of an election?
Notably, the U.S. Supreme Court (in reversing the 7th Circuit order that reinstated Wisconsin’s voter i.d. law) signals that at least a majority of the justices still adhere to the traditional common-law doctrine that courts should not impose last minute judicial orders affecting voting.
Rick Hasen and others refer to this as the “Purcell” doctrine, a shorthand reference to a 2006 Arizona voting case, Purcell v. Gonzalez, wherein the U.S. Supreme Court blocked a last-minute injunction against enforcement of an Arizona voter i.d. law.
Whether this cuts for or against Texas remains to be seen, although I tend to agree with Justin Levitt that the 147-page decision in Veasey v. Perry is “Purcell-proofed.” It isn’t a spur-of-the-moment injunction of the sort that was disapproved of in Purcell – (1) it’s a thoroughly vetted and fact-heavy decision on the merits following a lengthy trial, and (2) it does not impose any resource-intensive or difficult change to an existing process, but merely relieves the State of an existing administrative burden. At this point, a court order reimposing the Texas voter i.d. requirement would look more suspect from a Purcell-based analysis.
Here are the links, for those of you using web readers:
http://electionlawblog.org/?p=66613 (I cited Justin Levitt’s blog entry twice, because I liked it so much).
Rick Hasen was quoted in today’s Austin-American Statesman, giving his prognosis for the pending voter I.D. litigation in Corpus Christi. There aren’t any big revelations, although Prof. Hasen seems pretty pessimistic about how the 5th Circuit is likely to treat the case.
I’m terrible at future projections, because I can’t understand why everyone doesn’t think exactly the way I do – in my world, the 5th Circuit and Supreme Court would have to uphold the likely ruling by the trial court against the voter I.D. law, because any other outcome would be so intellectually bankrupt as to be embarrassing and damaging to the institutions of the court.
But, as people frequently remind me, the consequences of intellectual bankruptcy aren’t nearly so dire as to be a deterrent to bad decisionmaking, unfortunately.
The link in this case is http://electionlawblog.org/?p=65762
The deadline to register to vote for the November election is Monday, October 6, 2014. Keep that date in mind as you consider the obstacles faced by voters who lack the required picture I.D. to vote.
In the parlance of Regency dandies, the gross insult of ignoring an acquaintance is a “cut,” with various gradations and forms, including the cut direct (the explicit snub), the cut indirect (the “accidental” snub), the cut sublime (“missing” the snubbed party by staring intently at the sky), the cut infernal (opportunistically staring at one’s own feet), and so on.
In response to requests from the League of Women Voters, Dallas County Elections, the Texas Democratic Party, Battleground Texas, and others, all asking that the State make some gesture towards resolving the lack of picture I.D. for hundreds of thousands of Texas voters, Texas officials have answered with a particularly insulting snub.
Now, keep in mind that attorneys for the State of Texas have touted the outreach efforts of the State in order to blunt the argument that the 2011 picture I.D. requirements are intended to disproportionately disenfranchise the poor, the elderly, the disabled, and minority voters, and that the creation of “mobile EICs’ (mobile election I.D. centers) by the Department of Public Safety is a centerpiece of the State’s effort to mitigate the negative consequences of the voter I.D. law.
So Texas officials must have really put their heart into getting i.d.s into the hands of voters who otherwise will be ineligible to vote, right? Let’s take a look at the schedule:
1. Mobile EIC for Dallas County – Tuesday, September 23, 2014 (i.e., two days from today, or 13 days before the deadline to register to vote).
|Dallas County Elections Department 10:00 AM – 4:00 PM||2377 N. Stemmons Frwy., Suite 820, Dallas, Texas 75207|
Hmm. One location. One day. A Tuesday. Six hours. In the middle of the day on a weekday. In a county with a voting-age population of 1.7 million, of whom an estimated 220,000 lack sufficient I.D. to vote.
Well, that’s one way to address the problem of lack of I.D. for voters in Dallas County. A few more slaps across the face with a silk glove, and all of Dallas County’s issues will simply melt away.
Presumably, the State would argue in response that (1) in 2013, more extensive efforts by both the State and Dallas County to address the lack of I.D. prior to the November 2013 constitutional amendment election (a sleepy off-year election) netted the production of only 6 I.D. cards, indicating (2) a lack of public concern or need for picture I.D.s.
Unfortunately, the State’s argument is undercut by selection bias and self-serving justification, and (as demonstrated below) by the disparate treatment of populations in other parts of the State. I don’t doubt that this lone mobile EIC won’t see much business, because really, how could it see much business?
Here’s a sure-fire recipe for failure:
(1) Take a group of voters who lack mobility, funds, adequate I.D., or any direct awareness of their ineligibility to vote (given that the targeted voters are less likely to see or know about “votetexas.gov,” or have any access to a computer or the Internet).
(2) Fail to address any of the obstacles these voters face in knowing about or getting adequate I.D.,
(3) Host a mobile I.D. clinic that is designed as a symbol and proof of failure and corrupted endeavor, and then announce that all those forgotten voters don’t actually exist, arguing that obviously if they did exist, they would have shown up promptly at the Dallas County Elections Office on Stemmons Freeway. at 10:00 a.m. on a weekday, with their original birth certificates or unexpired passports in hand and ready to apply for their election I.D.s.
But (you might think) maybe the State is so overwhelmed and so limited in resources that it can’t do a better job even if it wanted to. Hmm.
2. Mobile EIC for Tom Green County – Tuesday, September 23, Wednesday, September 24, and Thursday, September 25th, 2014.
September 23, 2014
|Goodwill 10:00 A.M-4:00 P.M.||4216 College Hills Boulevard, San Angelo, Texas 76904|
September 24, 2014
|Lowe’s Food Store 10:00 AM – 4:00 PM||1926 North Bryant, San Angelo, Texas|
September 25, 2014
|Southside Recreation Center 10:00 AM – 4:00 PM||2750 Ben Ficklin, San Angelo, Texas|
Hmm. The times of day aren’t any better – and each location is available only on one of three weekdays. But that’s three locations over three days, serving a voting-age population of 84,000, of whom an estimated 15,000 lack sufficient I.D.
So … Tom Green County has a little less than 5% of the voting-age population of Dallas County, but gets three times the amount of mobile I.D. stations.
Here’s another way to look at this. If you are a voter without the required photo I.D. in Tom Green County, the State of Texas loves and cares about you about 60 times more than it loves and cares about a voter without I.D. in Dallas County. Civil rights litigators take note – that looks to me like a prima facie violation of the Voting Rights Act.
3. Mobile EIC for Upshur County – Thursday, September 25
|Upshur County Tax Office 9:00 – 4:00||P215 N Titus, Gilmer TX 75644|
Okay, Upshur County gets an hour more than Dallas County, albeit also on a weekday during business hours. For a voting population of 29,500.
Upshur County’s voting population is 1.7% of Dallas County’s voting population. So, if you’re a voter in Upshur County, and you’re competing for the State’s affections with a voter in Tom Green County, how do you fare? You don’t get three days of help at three locations, admittedly, but there are fewer of you.
Well, my back-of-the envelope math suggests that the State only loves and cherishes you 58 times more than a similarly situated voter in Dallas County. Time to outbid Tom Green County on sending flowers to the Secretary of State.
But (you ask) what about Harris County? I mean, that’s one of the most populous counties in the nation, with a correspondingly large number of voters who lack picture I.D. How does Harris County fare?
4. Mobile EIC for Harris County – Saturday, September 27
|Moody Community Center Houston Multipurpose Room 9:00 AM – 3:00 PM||3725 Fulton Houston, Texas 77009|
Saturday! For six hours! That’s a plus. But … that’s one location, one week prior to the deadline to register to vote. That’s for a countywide voting-age population of almost 2.95 million voters, of whom an estimated 529,000 lack sufficient I.D. to vote.
So, citizens of Harris County – the State is willing to give you six glorious hours of weekend access to a mobile EIC, offset somewhat by the fact that that sole mobile EIC is expected to serve a voting population that’s larger than the voting population of Dallas County by more than a third. So either the State cares slightly more for Dallas County voters, or slightly more for Harris County voters, depending on how one feels about not having to take time off on a weekday to get a picture I.D. Let’s call it a wash.
Now, I could keep on going – the State has scheduled mobile EICs to serve various towns and territories from now until October 15th, all holding generally to the pattern that the smaller, whiter, and more rural areas will get more opportunities than larger urban areas.
And my very rough summary doesn’t really capture the indignity of the schedule, because I’ve treated each mobile EIC as if it’s dedicated just to serving the voters in a single county. The disparate treatment of different populations is more pronounced when one engages in a more accurate analysis based on the total multi-county population served by each station. Because it’s not just that Dallas County only gets one mobile EIC between now and Election Day. It’s that the entire heavily urbanized and built up North Texas region gets one mobile EIC between now and Election Day – that spot at the Dallas County Offices will be the only mobile EIC offered to any voter without picture I.D. anywhere closer than halfway between the City of Dallas and the City of San Angelo. To put it in very rough geographic terms, one could say that the mobile EIC on Stemmons Freeway on Tuesday, September 23rd is serving all of the communities in Texas within about 100 miles of the City of Dallas. That includes all the cities and towns of the greater Dallas-Fort Worth area.
What is even more shocking than the poor service offered to Dallas County and Harris County residents is the complete snubbing (I guess we’d have to call it a “cut direct”) of Bexar County. There were a few locations in and around the San Antonio area that were manned leading up to the May elections, but the State currently plans to have no mobile EICs whatsoever for the greater San Antonio region between now and Election Day. Similarly, there will be no mobile EICs in the Austin area, but we already knew that the State hates Austin.
The handy thing about the schedule for mobile EICs that’s been posted by the State (http://votetexas.gov/election-identification-certificate-mobile-stations) is that by using it as a guide, you can get an excellent sense of just how much the State cares about you as a voter, and about how well-liked you are in the eyes of the State’s executive officers, based on how accommodating the State is of your needs between September 23 and November 4.
If you live in Amarillo, Waco, Tyler, Floresville, New Braunfels, Canyon Lake, San Angelo, or Gilmer, congratulations. The State likes you. If you live in or around Dallas, Fort Worth, Houston, or San Antonio and you lack sufficient I.D., please note that the State is only as concerned for your welfare as is absolutely necessary to keep from breaking out in spontaneous snickering while defending against Section 2 Voting Rights Act claims in Federal court.
ALL HOPE IS NOT LOST
Between now and Election Day, voters in the unloved areas of Texas still have a chance to push for additional mobile EICs – at least based on this statement by the Secretary of State that, “[m]ore locations will be added as they are scheduled and confirmed. Based on the mobile nature of the units, locations, dates and times are subject to change.”
It is certainly possible that this picture will improve, but only if we compel the State to improve it. As Emily Post noted regarding the archaic and boorish practice of openly and deliberately ignoring someone’s presence:
Anyone who is preoccupied is apt to pass others without being aware of them, and without the least want of friendly regard. Others who have bad memories forget even those by whom they were much attracted. This does not excuse the bad memory, but it explains the seeming rudeness. A “cut” is very different. It is a direct stare of blank refusal, and is not only insulting to its victim but embarrassing to every witness. Happily it is practically unknown in polite society.” -Emily Post, “The Cut Direct” in Etiquette (1922) (emphasis added).
A number of online media outlets have sent reporters to Corpus Christi to cover the opening of Veasey v. Perry (the consolidated federal lawsuit contesting implementation of the 2011 Texas voter I.D. law), but for my money, the most detailed and accurate day-to-day coverage of the trial is coming from the Brennan Center for Justice at NYU (available at http://www.brennancenter.org/texas-voter-id-trial.
I’m guessing that mainstream news coverage is likely to flag and falter a bit as the trial continues for the next three weeks or so, simply because the trial schedule is a little too languid and stretched-out to generate sustained interest across multiple news cycles. That’s a shame, because while there may not be showy rhetorical fireworks every day of the trial, the meat of the evidence lies in a series of expert reports that make for surprisingly good reading (at least for fans of public policy analysis and massive demographic surveys – and hey, that’s all of us here, right?) (Highlights include Dr. Gerald Webster’s report, here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey5162.pdf, Dr Barry Burden’s rebuttal of the State’s experts, here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey5152.pdf, and Drs. Barreto and Sanchez’s rebuttal of the State’s experts, here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey520.pdf).
It’s no secret why the Brennan Center is providing a constant twitter feed, daily recaps of testimony, detailed trial background stories, and profiles of the key witnesses and evidence as they are presented. The attorneys for the Brennan Center are insiders who have a dog in the hunt – they represent one of the plaintiffs in NAACP et al. v. Steen et al., which was consolidated with Veasey v. Perry for the sake of judicial economy, and so the Brennan Center staff are intimately aware of the ebb and flow of the trial, coordinating their legal arguments with the arguments being made by the other plaintiffs.
The Brennan Center’s coverage is by necessity biased strongly in favor of the plaintiffs’ arguments, and so in this respect its website coverage differs from an objectively neutral reporting of the trial. Normally, inherent bias would make me hesitate to recommend this sort of “press release” news coverage offered by a party to a lawsuit, and I would favor more neutral sources, such as the Moritz College of Law repository (which scrupulously offers all documents from both sides of a dispute, and never editorializes or favors one side or another) (the Veasey v. Perry documents are available at http://moritzlaw.osu.edu/electionlaw/litigation/VeaseyV.Perry.php).
However, party bias in reporting is less of a problem in Veasey v. Perry than it would be in most other lawsuits, given that the defendant State of Texas has more-or-less capitulated with respect to the evidentiary elements of the lawsuit. In other words, (and obviously with a few quibbles), the State apparently concedes that the plaintiffs’ descriptions of the facts are more-or-less accurate.
Rather than offering anything more than a token rebuttal of the plaintiffs’ evidence, the State apparently takes the position that as a matter of law, a photo I.D. requirement (even if such a requirement imposes a disproportionate financial burden on minority voters, or disproportionately discourages minority voters from voting) isn’t illegal per se, but is justified as long as there is public support for more restrictive voting procedures. In other words, it is irrelevant (in the State’s view) whether there actually is any danger of illegal voting or not – what is critical is whether or not the bulk of voters (i.e., the non-poor, non-minority voters) are in favor of imposing an additional burden on voting.
In other words, the State of Texas is arguing that while the 2011 picture I.D. law may be a discriminatory, ineffectual and badly-conceived law, and while the law may or may not be intentionally badly-conceived, it is not an intentionally discriminatory law.
The State has claimed (as an affirmative defense) that Texas is unfairly picked on by the Department of Justice, and that this lawsuit is being mean, and stuff. (at http://moritzlaw.osu.edu/electionlaw/litigation/documents/Veasey4481.pdf). For a stinging rebuttal of this argument, see: http://moritzlaw.osu.edu/electionlaw/litigation/documents/veasey4911.pdf. As any person who has presided over a child’s temper tantrum knows, the defensive rejoinder that someone is “being mean, and stuff” is rarely relevant or germane to the issue at hand, and that general observation holds true in this case.
Veasey v. Perry has gotten a fair bit of media attention (as it should, given the importance of this litigation), with some pull quotes from the opening statements, and a little bit of background on the purpose and effect of the 2011 voter I.D. law adopted by the Texas Legislature. (Rick Hasen at electionlawblog.org offers links to the the major news outlet coverage, here: http://electionlawblog.org/?p=64883, http://electionlawblog.org/?p=64861, http://electionlawblog.org/?p=64847, and here http://electionlawblog.org/?p=64859. I’m quoted here: http://www.bloomberg.com/news/2014-09-02/texas-voter-id-trial-seen-as-test-for-restoring-u-s-oversight.html
As with all stories involving voter I.D., the comments sections of online sources reflect the knee-jerk defenses of the adoption of picture i.d. requirements. Most of these defenses can be rejected out-of-hand as meaningless or irrelevant to the debate over restrictions on voting.
Internet Talking Points on Voter I.D.
1. Voter I.D. is no big deal – since everybody’s gotta have I.D. anyway.
This is the kind of argument made by someone who hasn’t actually read the 2011 Texas law, which excludes the use of many forms of I.D. that voters might actually be able to scrounge up. It’s also the kind of false generalization that one can easily fall into when one has sufficient means and resources to have a driver’s license, a commonplace-seeming sort of picture I.D. that is unavailable to a significant segment of the voting population.
2. Poor people must have I.D. because otherwise they couldn’t cash their welfare checks.
This fairly distasteful argument conflates a number of stereotypes (implying that the “poor” are a monolithic group of welfare recipients who are simply being obstructive, slyly hinting that Texas voter I.D. laws keep the riff-raff from voting, and ignoring the distinction between the broad range of acceptable I.D. for financial transactions and the narrow range of acceptable I.D. for participating in the democratic process in Texas).
3. We had to do something to make sure the illegals didn’t vote.
This quite inflammatory statement perpetuates the falsity that (1) illegal immigrants subvert elections, and (2) that voter impersonation and illegal voting would occur but for the protections offered by the Texas picture I.D. law. Of course, the statement also panders to bigots, and encourages the broad stereotyping of immigrants as threatening, seditious outsiders plotting our downfall.
The quality of online debate being what it is, one is justified in regarding supporters of the 2011 Texas voter I.D. law with weary resignation. A rejoinder with links to reputable sources isn’t likely to cause any committed bigots to go through a “road to Damascus” conversion experience, where the scales fall from their eyes and they renounce their prior ignorance.
But once in a great while, formerly ignorant persons will throw off their shackles and open their eyes, sometimes because of a personal experience that leads to an epiphany, and sometimes because a seed of doubt is nurtured by an inherent suspicion of appeals to authority.
In the hope that at least some supporters of the 2011 Texas law could imagine that they might be wrong, I offer the following links to reputable sources:
An Overview of Pending Voter I.D. Litigation
Goldfeder, Jerry, and Myna Perez, “Proving Who You Are: The Legal Battle Over Voter I.D. Laws” (N.Y. Law Journal, June 4, 2014) (available at http://www.stroock.com/SiteFiles/Pub1495.pdf).
The Incapacity of Voter I.D. Laws to Significantly Affect Actual Election Fraud
Gilbert, Michael, “The Problem of Voter Fraud” (SSRN draft, pending publication in Columbia Law Review, 2015) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2488645).
Pitts, Michael, “Empirically Measuring the Impact of Photo I.D. Over Time and It’s Impact on Women” (SSRN draft, pending publication in Indiana Law Review, 2015) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2479500).
The Lack of Evidence of Actual In-Person Illegal Voting
Levitt, Justin, “A comprehensive investigation of voter impersonation finds 31 credible cases out of one billion ballots cast” (Washington Post, August 8, 2014) (available at http://www.washingtonpost.com/blogs/wonkblog/wp/2014/08/06/a-comprehensive-investigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballots-cast/).
The Discriminatory Impact of Voter I.D. Laws
Bentele, Keith, and Erin O’Brien “Jim Crow 2.0? Why States Consider and Adopt Restrictive Voter Access Policies” (Perspective on Politics, Dec. 2013, pps. 1088-1116) (available in draft form at http://cdn.umb.edu/images/cla_p_z/Jim_Crow_2_0_-_Bentele.pdf).
Barreto, Matt, Steven Nuno, and Gabriel Sanchez, “The Disproportionate Impact of Voter I.D. Requirements On the Electorate – New Evidence From Indiana” (available at: http://faculty.washington.edu/mbarreto/papers/PS_VoterID.pdf).
As my high school history teacher liked to say, “Use your god-given brains, people!”
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.