Holder’s Texas Two Step: voter ID challenge begins

U.S. Attorney General Eric Holder (adapted from British Foreign and Commonwealth Office Flickr photo) and Texas Gov. Rick Perry (adapted from photo by Jonathan Mallard)
U.S. Attorney General Eric Holder (adapted from British Foreign and Commonwealth Office Flickr photo) and Texas Gov. Rick Perry (adapted from photo by Jonathan Mallard)

It’s a battle on two fronts, necessitated by the Supreme Court’s decision, last year, to nullify the pre-clearance formula sections of the Voting Rights Act, in Shelby County v. Holder. That left Texas Attorney General Greg Abbott free to pursue what is alleged to be targeted, minority voter disenfranchisement.

On Tuesday, the United States Department of Justice joins other plaintiffs, including Texas voters and candidates, in Veasey v. Perry, challenging the Lone Star State’s quick-trigger, post-Shelby resumption of its previously struck voter ID law. Later this fall, DoJ will participate in another round of Perez v. Perry, the case which alleges the state’s 2011 redistricting plan is discriminatory, giving Texas’ rising Latino minority less representation in government than they are actually due.

A verdict for the plaintiffs in either case could allow Justice to place Texas back on the pre-clearance list for ten years, a “bail in” under Section 3 of the VRA, since, the DoJ maintains, it would demonstrate a persistent pattern of minority voter discrimination. It is their only recourse, since Congress won’t act on a new pre-clearance formula.

“If the federal courts in either the redistricting or voter identification cases find that the State of Texas should be covered by Section 3(c),” a 2013 DoJ press release stated, “then the State would be required to submit voting changes to the U.S. Attorney General or to the federal court for review prior to implementation to ensure that the changes do not have a discriminatory effect or a discriminatory purpose.”

Observers say this presents a real test to the remaining sections of the Voting Rights Act, since, as Michael Li of the Brennan Center for Justice writes, “Section 3 has not been widely used to date, and there is comparatively little guidance in case law on when and how to apply the ‘bail in’ provisions of section 3. The Texas case thus could be in a position to break new ground and will be closely watched for that reason.”

In Veasey, which is being tried in Federal District Court in Corpus Christi, the plaintiffs claim the voter ID law, known as SB 14, places an undue burden on voters because driver’s licenses and gun permits (another acceptable form of state ID – student IDs are no longer accepted) are “obtainable only from a limited number of sources or locations, often inconvenient and expensive.”

Further, they contend, Latin and African American minorities bear more of this burden than others, because when attempting to match names on voter rolls with state-issued ID holders, they found that “20.7% of black voters and 17.5% of Hispanic voters cannot be matched, while only 10.9% of Anglo voters cannot be matched.”

Texas claims SB 14 is supposed to prevent voter fraud, the law’s proponents argue. But according to one former attorney in the state’s Voting Rights Act compliance office, in-person fraud is very rare. “Across the country,” Joseph Kulhavy told Bloomberg Businessweek, “these in-person voter fraud cases can be counted on one hand. Texas won’t be able to find instances where the outcome of an election turned on illegally cast votes.”

Indeed, according to Business week, Kulhavy revealed that:

“In the past five years, Texas has detected about 60 cases of election fraud, with only one or two instances of in-person voter impersonation, the only fraud addressed by photo IDs.”

Perez is a little more complicated. It is the first of the two actions in which Attorney General Eric Holder announced the participation of the Justice Department, post-Shelby, but it was originally filed before the 2012 elections, challenging Texas’ 2011 redistricting map.

A panel of judges came up with changes to the redistricting map, which the state legislature adopted in 2013, with minor changes. The plaintiffs complain that even the new map does not address the way Texas lawmakers originally drew the lines, purposely supplanting minority voters who have a history of showing up at the polls with those who don’t vote. That way, the plaintiffs contend, a district will appear to have the correct number of potential minority voters, but they will have less chance of having minority representation.

One only has to look as far as the recent unrest in Ferguson, Missouri, to understand that when a majority-minority community doesn’t show up at the polls, it doesn’t get represented in government.

The San Antonio court where the case is being heard has split Perez into three to four separate hearings, which the parties agreed to “for the sake of not going crazy,” according to an August post in the Texas Election Law Blog.

The blogger explains:

“The first issue (the 2011 Texas House redistricting plan) was the subject of a six-day hearing that began on July 14th of this year. The second issue (the 2011 U.S. Congressional House district reapportionment) was the subject of a week-long hearing that began on August 11th. The third issue will be considered at an as-yet unscheduled hearing, followed by a possible fourth and final hearing to resolve the State’s liability, if any is found.”

The upcoming hearing, Phase III, if you will, addresses the redistricting map the legislature approved in 2013. By interfering with the court’s 2012 map, Texas Election Law Blog writes, the state’s lawmakers “allegedly ‘packed and cracked’ [House District 90, part of Fort Worth] in a manner similar to some of the objectionable 2011 districts.”

Whether or not Texas ends up back on pre-clearance would be the final phase of the trial. Meanwhile, for the upcoming midterms, the court ruled that the 2013 law would be in force during the election.

With two Section 2 lawsuits coming at Gov. Rick Perry, Texas may feel singled out, but DoJ has taken similar actions in North Carolina and, more recently, in Wisconsin and Ohio.

As far as Kulhavy is concerned, it’s no surprise that more than one action is being taken by the Justice Department to get Texas’ continuing pattern of discrimination recognized as a VRA violation. “Texas just provides such a target-rich environment for violations of the Voting Rights Act,” he told Businessweek.


Recommended reading:

Sky-high stakes in Texas voter ID trial (Zachary Roth, msnbc.com) Overview of Texas’ history with voter ID, going back to the 1970s

Eric Holder’s Suit Against Texas Gives the Supreme Court a Chance to Gut Even More of the Voting Rights Act (Jeffrey Rosen, New Republic) Given SCOTUS’ conservative majority, there’s a good chance DoJ will lose its Section 2 enforcement mechanism, and be at the mercy of Congress to re-work the formula for pre-clearance in Section 4.

New Report Shows Continued Pattern of Voting Rights Discrimination—African American, Latino, Asian American and Native American Voters More Vulnerable Than Ever (National Commission on Voting Rights) Report recognizes voter discrimination as an “ongoing problem in the United States.”

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