By Jim Malewitz, The Texas Tribune, texastribune.org
Texas’ five-year-old voter identification law — among the nation’s strictest — will face a fresh round of probing Tuesday in a long-winding lawsuit that may ultimately end up at the U.S. Supreme Court.
The 15-judge U.S. 5th Circuit Court of Appeals in New Orleans will hear arguments from both Texas Solicitor General Scott Keller and attorneys for opponents of the law, which include minority and voting rights groups. The case asks whether the state discriminated against Hispanics, African-Americans and low-income Texans in passing the law, which stipulates which types of photo identification election officials can and cannot accept at the polls.
Voting rights experts are watching closely, saying this is one of two such battles, alongside one in North Carolina, that could determine at what point states that assert that they are protecting the integrity of elections cross over into disenfranchisement.
So far, both a federal district court and a panel of 5th Circuit judges have ruled that the Texas requirements violate the U.S. Voting Rights Act. Nonetheless, the law has been enforced at polling locations around the state since 2013.
The outcome in New Orleans could determine whether the rules remain in effect for the presidential election in November. The U.S. Supreme Court set a July 20 timetable for the appeals court to rule.
A narrow list
Across the country, 34 states have passed laws requiring voters to show some form of identification, according to the National Conference of State Legislatures. Texas is among nine states categorized as requiring “strict photo ID,” and its list of acceptable forms is the shortest.
The law requires most citizens (some, like people with disabilities, can be exempt) to show one of a handful of types of identification before their ballots can be counted. Those include: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card or a U.S citizenship certificate with a photo.
Experts have testified that more than 600,000 Texans lack such identification, though not all of them have necessarily tried to vote. Those citizens can obtain “election identification certificates” free of charge, but only if they are able to produce a copy of their birth certificate.
The state argues that the law bolsters ballot security and that there is no evidence that it prevents legitimate voters from casting ballots.
“Texas enacted a common-sense voter ID law to prevent voter fraud and preserve the public’s confidence in the electoral process,” Teresa Farfan, a spokeswoman for Texas Attorney General Ken Paxton, said in an email to the Tribune. “Requiring photo voter ID is a reasonable, effective, and legal way to accomplish that goal.”
She added that her office feels “very optimistic” going into Tuesday’s arguments.
Opponents say the Texas law violates the federal Voting Rights Act and is a veiled attempt to cut into the electoral strength of the state’s growing minority population — people less likely to have photo identification or the means to obtain an election certificate.
“The tide has turned against these laws. The jig is up. Nobody really believes anymore, if they ever did, that this law actually has something to do with voter protection,” said Chad Dunn, an attorney for the plaintiffs. “They’re really designed to shape an election to the outcome they want.”
A convoluted journey
Gov. Rick Perry signed the state’s Voter ID law in 2011, kickstarting its convoluted journey through the federal court system.
An immediate legal challenge placed the rules on hold until 2013, when the U.S. Supreme Court struck down part of the Voting Rights Act, ruling that Texas and other states with a history of racial discrimination no longer automatically needed federal pre-clearance when changing election laws.
In August 2015, three 5th Circuit judges ruled that the law did have a “discriminatory effect,” in violation of the Voting Rights Act, although it did not constitute a poll tax as a lower court had ruled. In court filings, Paxton’s team called that decision flawed.
Rick Hasen, an elections expert at the University of California, Irvine, School of Law, called it a “significant holding” in the national landscape of voting rights challenges, and said the case could ultimately land in the Supreme Court, where a 4-4 split remains a possibility following the death of Justice Antonin Scalia.
With the litigation still unfolding this election season, plaintiffs in the Texas case had petitioned the U.S. Supreme Court to halt the law until it is resolved. In an April order, the justices declined to do so, but they also wrote that if the appeals court doesn’t rule by July 20, plaintiffs could again petition the high court for a stay.
“I think the justices agree that this issue should be resolved in time before the election,” Hasen told the Tribune.
Critics suggest that the state’s law is a solution in search of a problem in a state that perennially registers some of the nation’s lowest voter turnout figures.
“The tide has turned against these laws. The jig is up. Nobody really believes anymore, if they ever did, that this law actually has something to do with voter protection.”— Chad Dunn, attorney for plaintiffs in Texas voter ID challenge
A study by News21, an investigative journalism project at Arizona State University, looked at open records from Texas and other states for the years 2000-2011 and found 104 cases of alleged election fraud in Texas among tens of millions of votes cast. But not all of those fraud cases were confirmed and many of the allegations were unrelated to votes cast in person, the process Texas’ voter ID regulations specifically address.
Dunn called Abbott’s assertion of “rampant” fraud “demonstrably false,” and he questioned whether the Texas law would protect against it anyway.
He pointed out that noncitizens could still obtain some forms of identification under the state’s list of what’s acceptable — a military ID, for instance.
To support Abbott’s assertion that voter fraud was “rampant,” the governor’s office pointed to a list of election code referrals to the attorney general’s office, which Paxton released in March.
The document listed nearly 700 complaints since August of 2002, roughly half of them referencing “illegal voting.” The list did not include the results of any of the investigations, nor did it specify which allegations involved in-person voting.
Last August, PolitiFact Texas reported that just 85 election prosecutions had been resolved since 2002, resulting in 60 guilty or no-contest pleas or convictions. Experts who analyzed that data concluded that few of those instances would have been prevented by the voter ID law.