Did Hubris Kill Texas's Photo ID Law?

In a unanimous decision on Thursday, a panel of three federal judges knocked down the Texas voter-ID law, which would have required voters to show a form of government-issued photo identification. The state will undoubtedly appeal the decision, but the news is yet another blow to the law, which the Justice Department already determined would disproportionately affect nonwhite voters. The Department of Justice estimated that between 600,000 and 800,000 registered voters would be affected. Those with Hispanic surnames were far more likely than whites to not have the requisite identification.

While it's yet another rebuke to strict voter-ID laws, the court's decision also illustrates just how much the specifics of this law, and its particularly scary effects, were brought on by the arrogance of state lawmakers and (Republican) officials. Like right-wing Republicans in the many states that went whole-hog GOP in 2009 and 2010—Wisconsin, Michigan, Maine, Alabama, Virginia, and Louisiana come immediately to mind—Texas's lawmakers, who had added to an already-substantial majority, decided that they had a mandate to make massive changes, from public schools to reproductive rights to election law. "Overreach" seemed to be the rallying cry of the new state Republican majorities. And on voter ID, Texas Republicans overreached like crazy.

Texas Republicans had been trying to pass a voter-ID law for years, and three times in a row, the Democrats had foiled their plans. So when the GOP tsunami swept through the Lone Star State in 2010 and made the Democratic Party little more than a buzzing mosquito, occasionally annoying but hardly dangerous, the conservative lawmakers decided they'd go for the gold. The photo-ID requirement that they passed is likely the strictest in the country. (The laws are so complicated, all with their own particular twists and complications, that it's hard to say for sure.) Only five forms of ID were acceptable: driver's licenses, military IDs, passports, concealed handgun licenses, and special voter-ID cards. The latter would be provided free of charge, but that was basically the only accommodation the state would make for the hundreds of thousands of voters without those IDs. No student IDs were acceptable, as in other voter-ID states. No expired licenses, which other states allow. Those who lived in one of the 81 counties (out of 254) without a card-issuing Department of Public Safety office could face long drives to get the necessary identification. Many of those offices offered only limited hours, but lawmakers did not make them longer (another concession some states have made). During the debate, Democrats pointed to the hundreds of thousands who might lose their right to vote, bringing out maps to highlight how many voters in rural counties live more than 100 miles from a card-issuing office. They were routinely ignored. Texas Republicans were determined to get the maximum voter disenfranchisement out of their law.

Because of Texas's history of voter suppression, the Voting Rights Act requires the state to get approval from the feds before it can change election law. In such cases, the burden falls on the state to prove that the law will not, as Section Five of the VRA says, “lead to a retrogression in the position of racial minorities” with respect to voting. But  the state's conservatives approached even this with a certain smugness. Requests for information from the Department of Justice were met with delays or with claims that Texas didn't have the data the DOJ wanted. After the Justice Department knocked down South Carolina's strict photo-ID requirement, Texas renewed its request for preclearance—and ten days later filed suit, demanding to put the law in place. By March, the DOJ had denied Texas preclearance and the case began in earnest.

Texas's cavalier attitude certainly didn't benefit its side. The judges took the state to task for its "dilatory approach," writing, "Our efforts to accelerate this litigation were often undermined by Texas's failure to act with diligence or a proper sense of urgency." Specifically, the court cites the state's lacksidasical approach to subpoenaing databases from the Department of Homeland Security that would have shown how many Texans have passports. The state also missed deadlines getting data to the Justice Department and to groups intervening in the case.

The court expended considerable ink noting just how much stricter Texas's law is than versions in Georgia and Indiana. Texas tried to argue that the disproportionate impact on the poor wouldn’t really be so terrible. That line of logic didn’t go over particularly well with the judges, who dismissed the state's “hodgepodge of arguments.”

Interestingly, the court rejected the statistics both sides presented about how many voters needed ID. It found significant problems with almost all of the evidence. Instead, the panel used some simple logic to reach its conclusion that the law was retrogressive:

(1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty. Accordingly, SB 14 will likely “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise."

Pretty simple, really. Unless you're a bunch of overreaching lawmakers.

Earlier this week, the state's redistricting maps were rejected for having a discriminatory effect—after Republican lawmakers drew maps to displace significant numbers of Democrats. In the case of voter ID, there was no reason—other than flexing political muscle—for Texas to pass such a strict version of the law. Only two years before, Republican lawmakers had championed a more flexible version, closer to Georgia’s. Just two weeks ago, the Department of Justice approved Virginia’s voter-ID law, which requires voters to show some form of ID but offers many more options, like utility bills. The decision to pass what would be the country’s strictest voter-ID law, and rush it into effect for the 2012 election, left Texas Republicans—very much like Pennsylvania Republicans, who are fighting their own court battle to uphold a strict voter-ID law—playing for much higher stakes.

Two major decisions now loom. The judicial panel still must rule on the constitutionality of Section 5—in other words, whether certain states like Texas should have to submit to different requirements than others whose election laws aren't covered by the Voting Rights Act provisions. (Texas has already signed on to an amicus brief in a similar challenge to the provision from Alabama.) Meanwhile, the state will likely appeal the panel's decision to the Supreme Court, where the state will almost certainly ask for an emergency injunction to put the law in place.

It's only a little more than 60 days before Election Day. As I've written before, to be even remotely fair, strict voter-ID laws require a comprehensive voter-education campaign to make people aware of the law and facilitate those voters who need to obtain a new ID. There's little evidence that Texas has a plan for getting the word out. The longer the clock ticks, the more discriminatory the law would be—because the last people to learn about a voter-ID law are more likely to be poor folks and minorities, who might find themselves faced with an ugly surprise on Election Day.

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