The Texas Voter Photo I.D. case currently before the federal Washington D.C. Circuit Court will decide whether Texas can enforce its year-old voter photo I.D. law. That federal court five day trial started last Monday, before a three-judge panel composed of D.C. Circuit Judge David Tatel, and District Court Judges Rosemary Collyer and Robert Wilkins. The trial concluded with closing arguments last Friday.
During closing arguments Judge Robert L. Wilkins asked the lawyer for Texas if the state’s voter photo I.D. law would force some people to travel more than 100 miles to get the documents required for a photo identification. “How does that impact your argument?” asked Wilkins. “Isn’t that unduly burdensome?” John Hughes, the state’s attorney, said Texans in rural areas are used to driving long distances. “People who want to vote already have an ID or can easily get it,” he said. The exchange highlighted the key dispute in this federal court trial.
What a minute -- If you don't have currently dated driver's license (to vote) you probably don't own a car to drive. And, if you don't have a driver's license or car, you're not going to drive 100 miles to the state driver's license bureau, after first not driving someplace else to get your original (or notarized copy) birth certificate, to get a government-issued photo ID. Huh?
The issue is whether the 2011 law violates the federal Voting Rights Act by making it harder for minorities to cast ballots. Under Section 5 of the Voting Rights Act, the Justice Department or a federal court is required to pre-clear laws affecting voters before they go into effect in jurisdictions with a history of voting discrimination -- and that includes Texas. Texas has the burden at trial to prove that its voter photo ID law, signed into law by Gov. Perry last year, does not have the purpose or effect to deny a minority citizen the right to vote.
Much of the debate during the trial last week focused on the issue of exactly who would be affected by it. The burden is on Texas to convince the three judge panel that the voter ID law is not discriminatory. The State of Texas argues that there is no evidence, statistical or otherwise, that the voter photo I.D. law is discriminatory. Judge Tatel, of the U.S. Court of Appeals for the District of Columbia seemed skeptically of the argument that the law will not adversely impact voters. Particularly, poor rural minority voters.
“The record tells us there is a subset of registered voters who lack ID,” said Tatel, who was appointed in 1994 by President Bill Clinton. “We have to think about the economic burden and the fact that minorities are disproportionately poor.”
Tatel added that the record showed that minorities in Texas are more likely than whites not to have cars and to live up to 120 miles away from the closest place to get voter ID documents.
Under the Texas law, the minimum cost to obtain a voter ID for a state resident without a copy of his birth certificate is $22. While the “Election Identification Certificate” needed to vote is free, the state legislature voted down proposed legislation to allow people to get identification documents, needed to obtain the "free" voter I.D., free of charge.
In his closing argument, U.S. Department of Justice (USDOJ) lawyer Matthew Colangelo said that the Texas law will disenfranchise more than one million African American and Hispanic voters and “is exactly the type of law” that Congress had in mind when it passed the Voting Rights Act.
During the week long trial, the three judge panel heard testimony from lawmakers, professors, civil rights activists, election lawyers and statisticians over the estimated number of people who could be adversely affected. The expert testimony given by witnesses for state of Texas contended that few if any voters lack one of the required photo I.D. cards, while USDOJ witnesses testified that up to 40 percent of registered voters in some rural south Texas counties lacked photo I.D. Now, it is up to the three judge panel to decide.
The judges say they will decide the case by Labor Day. However the three judge panel rules, the losing party is expected to appeal — and that appeal will go straight to the Supreme Court of the United States, bypassing an appeals court.
In its 2008 Indiana Democratic Party v. Rokita decision (findlaw) the Supreme Court of the United States (SCOTUS) upheld Indiana’s strict voter photo identification law, which is very similar to Texas', South Carolina's and other states' new voter photo ID laws. (Todd Rokita was Indiana's Secretary of State)
The Voter ID Law was enacted in Indiana, as in other states, by a Republican-dominated legislature on a party line vote. The Democratic Party challenged the Indiana law, contending that it imposed an unconstitutional burden on the right to vote for poor and elderly voters.
The Democratic Party contended then as it does today that many poor and elderly have no driver's licenses and cannot afford the fees to obtain their birth certificates, nor can they afford transportation to the county seat before each election to file an affidavit of indigency, the only other way that they can vote.
In its decision the Court conceded that the law does pose burdens, and it conceded that there is no recorded case of voter fraud by impersonation in Indiana. But the justices still upheld the law on a 3-3-3 vote. Justice John Paul Stevens wrote the lead opinion for himself, Chief Justice Roberts and Justice Kennedy.
The three said that without concrete proof of the burden imposed and proof of the numbers of people affected, the law could not be invalidated because it represents a legitimate attempt to prevent fraud in the future and inspire voter confidence.
Justices Scalia, Thomas and Alito said any state law would be okay as long as it was not intentionally discriminatory.
Justices Souter, Ginsburg and Briar dissented. They noted, for instance, that the fees for obtaining your birth certificate alone are more even adjusted for inflation than the $1.50 poll tax the Court struck down 42 years ago.
The DC circuit court could clear Texas' photo I.D. law, following precedence set by the Supreme Court's 2008 Indiana Democratic Party v. Rokita decision. If the DC circuit court clears Texas' photo I.D. law, the Supreme Court could decline to hear an appeal, affirming its 2008 Indiana photo I.D. decision. If this chain of decisions occurs by early September, the Texas Secretary of State will undoubtably order enforcement of the new photo I.D. law for the General Election.