It is starting to looking like Texas may be intentionally setting up the U.S. Department of Justice (USDOJ) to reject the state’s new voter photo identification law, by ignoring the USDOJ’s September request for information about Texas’ minority voters. The USDOJ said it needs that minority voter information to determine whether their new voter photo ID law would be discriminatory.
On November 16, USDOJ Civil Rights Division Voting Section Chief T. Christian Herren Jr. sent a letter to the Texas Secretary of State’s office reminding the state that it had not yet sent the minority voter information that the USDOJ requested in September. As of today, December 5th, Texas has still not sent the minority information the USDOJ requested in September.
If Texas does not send the requested minority voter information, the USDOJ likely will turndown Texas’ request to preclear its new voter photo ID law. Texas will then appeal the USDOJ’s decision to the Supreme Court of the United States, where the DOJ’s decision very well could be over turned.
The Supreme Court of the United States (SCOTUS) ruled 6-3 in its 2008 Indiana Democratic Party v. Rokita decision (findlaw) that Indiana’s 2005 strict voter photo ID law is constitutional. Texas’ voter photo ID law is nearly identical to Indiana’s voter photo ID law.
After hearing arguments of voter disenfranchisement, which were nearly identical to arguments that opponents of Texas’ 2011 photo ID law have made to the USDOJ over the last three months, Justices Stevens, Roberts, Kennedy, Scalia, Thomas and Alito said in their 2008 majority opinion that those arguments do not provide concrete proof that Indiana’s photo ID law constitutes either a burden to voting or an intentional discriminatory barrier to voting. The majority opinion further said that states have a “valid interest in protecting ‘the integrity and reliability of the electoral process.’” (AP story)
Whether Texas voter photo ID law, passed by the Republican-dominated Legislature and signed by Gov. Perry last spring, goes into effect on January 1, 2012 depends on whether the U.S. Department of Justice (USDOJ) gives its preclearance to implement the law, as required under Section 5 of the 1965 Voting Rights Act. If the SCOTUS were to overturn a DOJ decision to not preclear the Texas law, it could significantly weaken the DOJ’s leverage in future cases covered by Section 5 of the 1965 Voting Rights Act.
The Secretary of State filed its original request for preclearance in July, but the USDOJ determined in September that it needed more information. Specifically the USDOJ requested the racial breakdown and counties of residence of the estimated 605,576 registered voters who do not have a state-issued license or photo ID, and how many of them have Spanish surnames. It requested the same information for registered voters who do have valid IDs.
The Texas Secretary of State (TXSOS) had initially told the DOJ that 605,576 registered Texas voters do not appear to have a Texas driver’s license or personal ID card. The SOS report indicates that in 27 of Texas’ 254 counties, at least 10 percent of the registered voters might be unable to cast ballots. In Presidio County in Southwest Texas as many as 25.9% of registered voters might not have the required photo ID, which will block as many as 1,313 out of the 5,066 registered voters in that county from casting ballots in any election.
Last month, the Brennan Center for Justice issued a report on its research that shows as many as 11% of eligible voters nationwide do not hold a government issue photo ID. With 18.8 million voting age citizens in Texas, as counted by the 2010 U.S. census, as many as 2.1 million (11 percent) registered and unregistered voting age citizens in Texas possibly do not hold a Texas driver’s license, personal ID card or other government issued photo ID document.
On October 5 the state responded by saying it did not have the requested information because it does not collect race data on voter registration applications. So instead, it submitted a spreadsheet list of all the Hispanic surnames in Texas, as determined by the U.S. Census Bureau. The spreadsheet shows how many voters did not provide an ID when they registered to vote, how many voters did not provide an ID, but whose records matched an ID record in the Department of Public Safety database — meaning they have been issued an ID — and those who did not provide an ID and could not be matched with a DPS record.
The Texas Democratic Party followed up with its own letter and spreadsheet to the USDOJ showing that in at least 46 Texas counties, over half the voters who do not have one of the required photo ID’s are Hispanic. The Texas Democratic Party and various organizations staunchly opposed SB14 on the grounds it will disenfranchise elderly and minority voters.
Though the state subsequently said it would use DPS data to compile a breakdown of Hispanic, it had yet to submit the information to the USDOJ by mid-November. On November 16, USDOJ Civil Rights Division Voting Section Chief T. Christian Herren Jr. sent a letter to the Secretary of State’s office reminding the state that it provided “incomplete” information that does not enable USDOJ Civil Rights officials to determine whether their proposed voter ID law would be discriminatory. “Although you did not indicate a date when this information would be available, you noted that the state will provide the results of its analysis as expeditiously as possible,” the letter states.
Essentially, the USDOJ’s letter restarts the clock on when the Department has to make a decision about whether the law complies with the Voting Rights Act. The USDOJ has 60 days from November 16, if the Texas does not send the requested information, or 60 days from the date when Texas does send the requested information to OK or deny Texas’ preclearance request. As of December 2nd the Texas Secretary of State’s office apparently had not yet sent the requested information to the USDOJ.
Either way, it is now looking very doubtful that the state will be able to enforce the voter photo ID law in time for the March 6, 2012 primary election. At best, if Texas does not send the requested information, the USDOJ will likely deny Texas’ preclearance request on January 16, 2012. Or, if Texas does send the requested information some after today, the USDOJ would like not give its decision until after date when Texas’ 254 county election officials start election worker training for the primary election.
Regardless of whether the DOJ approves or denies Texas’ preclearance request, the matter will likely be appealed through the courts by the losing side — which means Texas taxpayers will pick up the tab for the ensuing courtroom showdowns on top of all the state’s redistricting litigation costs.
The pre-clearance rule, included in Section 5 of the VRA, which has been reviewed by the Supreme Court as recently as two years ago, mandates that certain state, county and municipal jurisdictions with a history of racial problems must obtain a review and pre-clearance by the federal Department of Justice (DOJ) on any proposed changes in voting laws. The main reason for the DOJ pre-clearance requirement is to insure that any proposed changes would not “deny or abridge the right to vote on account of race, color, or membership in a language minority group,” as guaranteed by the 14th and 15th Amendments to the U.S. Constitution.
President Lyndon Johnson signed the Voting Rights Act into law on August 6, 1965. In the wake of violence and civil rights protests, the Johnson Administration drafted the VRA to enforce the 14th and 15th Amendments, aiming to eliminate various Jim Crow election law strategies to prevent blacks and other minorities from voting. Congress amended Section 2 of the law during the Reagan administration in 1982. On July 27, 2006 President George W. Bush signed a bill extending the Voting Rights Act for another 25 years.
States that must request pre-clearance from the federal DOJ for any change to election laws or districts. More about the Voting Rights Act:
Before the VRA, many states had poll taxes, literacy tests and a whole array of so called “Jim Crow” schemes and gimmicks encoded in legal statutes to make sure that whites of a certain status were the only ones “qualified” to vote. Arizona was one of these.
The VRA not only forbids state laws that are intended to specifically target minority voters — it also forbids state laws that have a greater impact on minority voters than on others. Because voter ID laws disproportionately affect minority communities, it is difficult to see how many of the voter ID laws already passed or under consideration in GOP-controlled states could survive scrutiny under this law.
The Voting Rights Act of 1965 established federal Department of Justice oversight of election laws passed by certain southern states with a history of discrimination.