Congressional Forum on Voting Rights Requests Statement of Legal Center Executive Director
Jul 30, 2012
Today, Legal Center Executive Director J. Gerald Hebert provided a statement to a Congressional Voting Rights Forum convened in Houston Texas at Texas Southern University’s Thurgood Marshall School of Law. Mr. Hebert’s statement was adapted from his closing argument earlier this month in State of Texas v. Holder (D.D.C.) — a case in which the State of Texas seeks Voting Rights Act approval of its controversial photo ID law. The forum, “The Right to Vote: Foundation of America” was convened by the Rep. Charles A. Gonzalez (D-TX), Ranking Member of the Subcommittee on Elections.
Mr. Hebert’s full statement follows below:
Statement of J. Gerald Hebert
Executive Director and Director of Litigation of the Campaign Legal Center
Regarding the Texas Voter ID Case
In May, 2011, Texas Governor Rick Perry signed S.B. 14, the most onerous, restrictive photo voter identification bill in the country. Not just any photo ID will do, or even any government-issued ID; voters must show a Texas driver’s license or state ID card, a passport, U.S. citizenship papers with a photograph, or a license to carry a concealed weapon. Yet hundreds of thousands of Texas registered voters lack one of these forms of identification, and they are disproportionately Black and Latino. Evidence shows that Hispanic and Black voters are nearly twice as likely as Anglo voters to lack the proper identification needed to cast a ballot in person under S.B. 14. Moreover, the anti-voter fraud justification Texas offered for the law was transparent pretext, hiding a racially discriminatory purpose behind the photo ID requirement. S.B. 14 was a solution in search of a problem.
The disparate impact S.B. 14 will have on minority voters, along with the clear evidence showing the law’s discriminatory purpose, run afoul of the Voting Rights Act of 1965 (VRA). Texas, like much of the South, is a “covered jurisdiction,” subject to special provisions of the VRA because of a long history of racial discrimination in voting laws. Section 5 of the VRA requires that Texas seek approval of any change to its voting practices or procedures from either the U.S. Attorney General or a federal court. This process, known as pre-clearance, requires that Texas prove the change is not for the purpose and will not have the effect of discriminating against minority voters. Most changes are approved speedily. However, in the case of S.B. 14, the Attorney General objected to the law. Texas filed a suit seeking preclearance and the case went to trial last month in the District Court for the District of Columbia before a three-judge panel.
The issues of voter fraud and voter ID in Texas have been tinged with race since day one. Major Forest Mitchell, an employee with the Special Investigations Unit of the Texas Attorney General’s Office, testified at the recent trial that the Attorney General of Texas traveled around the state and spent hundreds of thousands of dollars educating local district attorneys on how best to combat voter fraud. Excerpts of the Texas Attorney General’s training materials are included in the attached PowerPoint presentation slides. Not a single slide in the presentation addressed the need for a photo ID, but it certainly addressed mail-in fraud. Attorney General Abbott told local DAs to look for “unique” postage stamps as a sign of possible fraud. His example? A stamp commemorating sickle cell anemia patients that reads “Test early for sickle cell” and pictures an African-American woman holding an African-American child. One need not be a rocket scientist to figure out whether that queues race. Then when he warned about in-person voter fraud, Texas Attorney General Greg Abbott showed another slide that contained a photograph of Black people lined up at the polls.
Throughout the legislative debate on S.B. 14 and the recent trial, Texas legislators claimed that requiring a photo ID to vote does not impose a legally significant burden because proving one’s identity with a photo ID is a routine feature of modern life. This conclusory statement, however, is inaccurate, incomplete, and misleading. As the Carter-Baker Commission Report noted, photo voter ID requirements “may present a barrier to voting, particularly by traditionally marginalized groups.” The Commission also worried that states might not have enough locations issuing IDs. Testimony at trial showed this will be a major problem in Texas if the photo ID receives Voting Rights Act approval by the DC court. Despite claims to contrary, social science research estimates that a strict requirement depresses turnout by up to 10%, with a modal estimate among studies of 2-3%. Applying national data to Texas suggests that implementation of S.B. 14 could result in up to a 5% reduction in voter turnout.
Texas also frequently cited to Crawford v. Marion County Election Board, in which the Supreme Court upheld Indiana’s voter ID law, as support for their position that preventing voter fraud could justify S.B. 14. However, that case addressed a specific, facial challenge under the Equal Protection Clause of the Fourteenth Amendment and did not look at the intent of the Indiana legislature in the way the recent case has looked at the intent of the Texas legislature. Even though combating voter fraud is a legitimate state goal, it was uncontested at the trial that to the extent voter fraud exists in Texas, it almost never happens in person and usually happens by mail or by election officials.
S.B. 14, however, addresses only the virtually non-existent threat of in-person voter impersonation and does nothing to strengthen mail-in ballot laws. Texas’ claim that the goal of S.B. 14 was to prevent voter fraud was merely a pretext for discrimination and a cloak for voter suppression.
Texas employed a litany of unusual legislative procedures to enact S.B. 14, which is one of the factors the Supreme Court has found shows evidence of purposeful discrimination. In prior sessions, the Democrats in the Senate, who comprised just a little over a third of the body, had the benefit of the two-thirds rule to prevent the majority from ramming through legislation. Every Democrat in the Senate, it should be noted, represents a district that’s majority minority. So we’re talking about the folks who are really trying to protect minority voting rights. But because they could stop legislation in this way, Senate Republicans did away with the two-thirds rule through unusual procedures just to jam the law through in 2011. And they did away with the two-thirds rule only for the photo ID, which speaks volumes about their intent.
Texas also failed to prove that the law will not have a discriminatory effect on racial and ethnic minorities. In the recent trial, expert witnesses Dr. Stephen Ansolabehere of Harvard University and Dr. Thomas Sager of the University of Texas at Austin presented analyses that established that Blacks and Hispanics are substantially overrepresented among registered voters who cannot be matched to a valid state photo ID required under S.B. 14. The only way this racially discriminatory effect could be rectified is if most of the group of minority registered voters who lack a state photo ID in fact possess a valid federal photo ID, such as a passport. No evidence, however, was presented by any expert in the trial regarding that particular group of registered voters. Additionally, trial testimony by Texas State Senator Wendy Davis demonstrated that obtaining a federal ID requires first having a state ID.
Regardless of the rate at which Latinos and other minority groups possess valid photo IDs, it is undisputed by Texas that Latinos will still disproportionately face the problem of a mismatch between their names as they are in the voter database and the names as they appear on their photo IDs. Given the discretion that is afforded local election officials under S.B. 14, both Blacks and Latinos are sure to face an insuperable additional barrier of discriminatory application of photo ID laws at the polls. This problem was highlighted by expert witness and national voting rights expert Dr. Allan Lichtman at the recent trial, and Texas never rebutted his testimony. Texas lawmakers showed a gross lack of sensitivity to this special problem that minority voters will face. In fact, Betty Brown, a Republican who was in the Texas legislature in 2009 when a voter ID bill was being pushed, was informed of the data base name mismatch problem faced by Asian Americans. Rep. Brown said that voters of Asian descent with easily mismatched names should adopt names that are “easier for Americans to deal with.”
The fact of the matter is that minority voters are disproportionately poor, and so the costs associated with obtaining a photo ID will have a disparate impact on their effective exercise of the electoral franchise. Latinos in Texas are often among the working poor and are relatively younger than the general population. For working class voters, it is difficult to obtain ID at a Department of Public Safety (DPS) office because DPS offices are open during regular business hours and work hours often are not flexible. Currently, 81 Texas counties have no DPS office, and 34 additional counties have offices open two days per week or less. Some Texas voters must travel more than 60 miles one way to reach an office. Lower-income voters struggling to afford groceries, rent, and child care may not be able to afford the gas money to travel to a DPS office or to obtain the underlying documents needed to get the so-called “free” election ID card the state will make available.
There are many people who are not going to be affected by this law. But those who are going to be affected are overwhelmingly Black and Latino, whom the Census data show are disproportionately poor, according to every socioeconomic indicator. S.B. 14 will harm the poor and it will harm the downtrodden, those who are already suffering the debilitating effects of their poverty. Texas rejected amendment after amendment that would have given the poor some relief from this unjust law. Texas could have kept its photo ID law but still given the indigent, poor, and the homeless some relief. But the State of Texas did no such thing.
One of the Intervenors in the Texas voter ID case was Eric Kennie, who testified that he doesn’t have a birth certificate. Mr. Kennie was born in a car, is indigent, and has been homeless. Yet he still votes. He doesn’t have an ID and he cannot afford to spend the required $22.00 to buy a birth certificate needed for the so-called “free” ID. Even if he could scrape together $22.00, he would not be able to obtain an ID and vote, because no such birth certificate was ever issued. Even if a birth certificate did exist, he would either have to pay more money to have the certificate mailed to him somewhere, or travel to Austin to obtain a birth certificate in person. Acquiring other forms of photo identification, such as a driver’s license or passport, can be costly as well. The fee for an original Texas Driver’s License is $25.00 for ages 18 and up and $9 for ages 85 and up. It is undeniably discriminatory to deny Mr. Kennie the most sacred right we have as Americans: the right to vote.
There has been a recent effort to have Section 5 of the Voting Rights Act declared unconstitutional. The Texas redistricting case and the Texas voter ID case give us Exhibits A and B for why Section 5 is still needed. Texas’ redistricting plans and their recently adopted photo ID law were infected with discriminatory intent and effect, and they would have gone into effect and harmed minority voters, but for Section 5.
A U.S. House of Representatives Report on the extension of the VRA to the southwest in 1975 noted that “Texas has a long history of discriminating” against minorities using “myriad forms of discrimination.” Since the early 1900s, various devices have been used to restrict and suppress minority voting, including poll taxes, gerrymandering, conditioning work on votes, English-only ballots, and limiting interpreters at the polls. As the recent trial showed, the onerous and discriminatory photo voter ID requirement enacted through S.B. 14 is no different. Texas’ ongoing war waged against minority voters continues, and the VRA remains the most important weapon minority voters have available to fight back.
To view the excerpts of the Texas Attorney General’s training materials in PowerPoint presentation slides, click here.
 This statement is adapted from J. Gerald Hebert’s closing argument in State of Texas v. Holder (D.D.C.)—a case in which the State of Texas seeks Voting Rights Act approval of its photo ID law.