This week the NAACP Texas State Conference and the Mexican American Legislative Caucus of Texas state lawmakers filed a legal challenge to the state's photo voter ID law. NAACP and MALC join the U.S. Department of Justice, the Texas League of Young Voters Education Fund, the NAACP Legal and Educational Defense Fund, and U.S. Rep. Marc Veasey, a Democrat representing the Fort Worth area, who've collectively filed three other suits challenging the Texas law.
As with the other challenges, NAACP and MALC claim the law violates Section Two of the Voting Rights Act, which forbids denying voting rights to people of color. All of the challenges want Texas "bailed in" under the VRA's Section Three preclearance provision, which requires states or counties found to have engaged in intentional discrimination to get federal permission for new election laws before they take effect.
The NAACP/MALC suit differs from most of the other cases in that it also argues that the photo voter ID law violates the U.S. Constitution's 14th Amendment equal protection clause banning racial discrimination. In addition, it claims the Texas law violates the 15th Amendment, which prohibits governments from denying a citizen the right to vote based on race.
Federal Judge Nelva Gonzales Ramos is expected to consolidate the cases during a scheduling conference on Oct. 25. But whether these legal missiles get fired separately or as one mega-strike, Texas is still going to have a lot of explaining to do about why it plans to enforce a law that it can't prove won't end up disenfranchising hundreds of thousands of voters.
"As we all know, Texas has a voter identification law that has already been ruled to be discriminatory by a bipartisan three-judge panel in Washington, D.C.," said NAACP Texas State Conference president Gary Bledsoe.
He and the MALC co-plaintiffs are arguing that the voter ID law, Senate Bill 14, was passed at least partially to intentionally discourage or stop Texans of color from voting. The law, which significantly limits the types of identification that can be used for voting, was blocked by a federal court when Texas was subject to Section Five of the VRA because of the state's history of discrimination against Spanish-speaking and -reading voters. But when the U.S. Supreme Court stripped Section Five of its coverage formula in June, Texas Attorney General Greg Abbott (R) announced immediately afterward that he was reinstating the law.
State Rep. and MALC Chairman Trey Martinez Fischer said that Abbott -- who is running for governor since Rick Perry will not seek re-election -- "should be working with minority communities, not against us, to ensure that the voting process is straightforward and non-partisan. Instead … he's trying to do everything in his power to prevent minorities from voting in the first place."
It's not like Texas needs help in discouraging voter participation. According to the U.S. Election Assistance Commission's 2012 election survey, Texas ranked at the very bottom of all states in terms of voter turnout, with just 41.9 percent of its voting-age population participating last November. Only Mississippi and Hawaii ranked worse. Mississippi, which also passed a voter ID law, saw less than 39 percent of its voters turn out in November 2012.
It's important to note that Texas already had a voter ID mechanism in place before the legislature passed SB 14 in 2011. Texans were expected to show up at polls with a state-issued voter certificate that contained their name, address and other identifying information. If they didn't have this, they could sign an affidavit swearing to their identity under penalty of law, or they could supply a driver's license, an employee ID (with photograph), a passport, a utility bill, bank statement or paycheck. SB 14 stripped that list down to a driver's license, state ID, passport or concealed weapon gun permit.
Under the new law, Texans can apply for a free state-issued voter ID card, but the documents needed to qualify for it -- birth certificates, naturalization papers, Social Security cards -- are not free.
South Carolina and Pennsylvania also passed photo voter ID laws in the past few years and went far out of their way to modify the rules around issuing free state-issued voter ID cards to eliminate or defray the costs associated with obtaining the documents needed to get it. In both states, those modifications happened amidst court battles, literally during the court trial periods. In Pennsylvania, modifications would happen minutes before a court hearing in anticipation of objections.
The last-minute free ID rule changes vindicated civil rights attorneys' arguments that the rules were changing so fast and frequently that state staff weren't getting adequate training to comply. Indeed, there were people across the state who were denied free ID or who were charged for documents that should have been free because the staff hadn't been updated on the new and ever-changing rules in time.
During South Carolina's voter ID trial, rules had been changed so often in response to disenfranchisement charges that by the time the judges ruled the law had been turned into a far more relaxed version than the original uber-restrictive one. A federal judge credited VRA's Section Five for that.
Texas took a different course, pro-actively suing the Department of Justice under the suspicion that its law would not pass VRA Section Five muster. Texas refused to provide the Justice Department with the demographics information the federal attorneys requested so it could do a thorough review of the law.
Texas's obstinance didn't help its case: A federal court ruled that SB 14 "imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty."
It's not like Texas lawmakers didn't know this before they passed the law. Republicans in the state had been trying to pass photo voter ID legislation since 2005, with little initial success. At each point, black and Latino state legislators provided facts and figures about the racially discriminatory effects if a voter ID bill were passed. Instead of acting more cautiously, Republican legislators added more restrictions to the voter ID legislation that eventually became law in 2011.
During debates, legislators proposed amendments that would have potentially ameliorated the disenfranchisement, but Republicans rejected them.
The NAACP/MALC lawsuit notes that Texas lawmakers were bombarded with letters from constituents about "wetbacks" and "criminal aliens" voting illegally.
That was the era when President George W. Bush was attempting to pass moderate comprehensive immigration reform laws but was beat back by extreme nativists who presaged the Tea Party. The Tea Party took over the Texas legislature in 2011 and made a photo voter ID law possible, with special help from the pollwatching group True the Vote, which is based in Texas and has been involved in voter suppression efforts.
True the Vote had been drumming up worries about "illegal aliens" voting but without clear proof other than its members' suspicions. In 2010, the Texas House Committee on Elections convened a hearing on voter fraud at which the director of the state's Elections Division testified that he referred 24 potential violations of the election code to the Attorney General's office in the prior two years, of which only two involved allegations of in-person voter impersonation.
Texas' voter ID law "is designed and intended not to counteract nearly non-existent voter fraud, but instead to disenfranchise minority voters in order to continue anti-minority voter dominance by drastically reducing the number of minority votes cast in each election," said the NAACP's Bledsoe.
The fight over Texas's voter ID fight is expected to land the Voting Rights Act back in the U.S. Supreme Court. There, the validity of the seldom-used Section Three "bail in" provision will be put to the ultimate test. Since Section Two hasn't been used for voter ID laws, the strength of that provision will be put to the test as well. States with recently passed voter ID laws like North Carolina and Mississippi will no doubt be watching closely.