Monday, January 23, 2012
Under the Texas voter identification law, voters must show a government-issued photo identification in order to vote at a polling place. Texans who do not already have a driver’s license, passport, military identification card, or other approved form of identification can get a state-issued voter identification card free of charge from the Texas Department of Public Safety. Additionally, anyone who is disabled or over the age of 65 can vote by mail, which allows them to use mail-in ballots without having to get a photo identification.
The Texas Legislature enacted the photo identification law in 2011 to help deter and detect election fraud. In a decision upholding a similar voter identification law in Indiana, the U.S. Supreme Court recognized that all states have an interest in deterring and detecting voter fraud. Justice John Paul Stevens wrote that there is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters and that states have justification for carefully identifying all voters participating in the election process.
The Supreme Court also ruled that the voter identification law was justified because flagrant examples of election fraud have been documented throughout U.S. history. According to the U.S. Department of Justice (DOJ) website, federal prosecutors have secured election fraud convictions against more than 100 defendants since 2002. During the same period, the Texas Attorney General’s Office has successfully prosecuted nearly 50 individuals for violating the Texas Election Code. Those convictions include a woman who submitted her deceased mother’s ballot, an activist who cast votes illegally for elderly voters and a city council member who unlawfully registered ineligible foreign nationals to vote so they could support her in a contested primary election.
The Supreme Court made clear that photo identification requirements are nondiscriminatory. The Court also said it is not too much to ask of voters to get a photo identification. The inconvenience of making a trip to the [Bureau of Motor Vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.
Before the current administration, the DOJ strongly supported voter identification. In fact, the DOJ filed a brief defending the Indiana voter identification law when it was challenged at the Supreme Court. At that time, the DOJ said, in-person voter fraud is difficult to detect without rigorous ID requirements. Now, the DOJ is adopting the opposite position on voter identification.
Although other stateslike Indianacan enforce their photo identification laws, Texas has been denied that authority because the federal Voting Rights Act prohibits changes to Texas election laws from being implemented until they are granted preclearance by either the DOJ or the federal courts. The Texas Secretary of State’s Office sought preclearance from the DOJ on July 25, 2011, but the Obama Administration has twice delayed the approval processand is still holding the matter under review. Despite the Supreme Court’s 2008 decision finding that state photo identification laws are constitutional, the DOJ recently refused to preclear South Carolina’s voter identification law in December 2011. Consequently, in an effort to ensure Texas’ photo identification law is implemented as quickly as possible, the State has begun the process of getting judicial preclearance from the federal courts.
In 2011 the same year Texas passed its voter identification law the States of Alabama, Kansas, Mississippi, South Carolina, Rhode Island, Tennessee, and Wisconsin also enacted photo identification laws. Those states are among the fifteen states that have enacted laws requiring voters to show photo identification at the polling place. However, because not all states are subject to Section 5’s preclearance requirements, recently enacted photo identification laws in Kansas, Tennessee and Wisconsin were allowed to take effect immediatelywhile Texas and South Carolina are unable to implement their voter identification laws until preclearance is granted.
In its letter denying preclearance to South Carolina, the DOJ claimed its decision was based upon the photo-identification requirement’s purported impact on minority voters. But the Justice Department’s claims ignore the Supreme Court’s decision rejecting similar legal claims in the Indiana case. The DOJ also failed to mention U.S. Census Bureau data indicating that African-American voter turnout increased by more than 10 percent in Georgiaand more than 5 percent in Indianaafter those states’ photo identification requirements were implemented.
Because the DOJ refused to preclear South Carolina’s voter identification lawand is delaying Texas’ ability to enforce its photo identification requirementthe State filed a lawsuit seeking judicial preclearance from the federal district court in Washington, DC. Given the Texas law’s similarity to the Indiana statute that was upheld by the Supreme Court, Texas argues that its photo identification requirement is lawful and should be precleared. Alternatively, the State argues that the Court must interpret Section 5 of the Voting Rights Act to permit preclearance of Texas’ voter identification law in order to avoid questions about the constitutionality of Section 5. As Justice Kennedy recently stated, Texas is at a tremendous disadvantage because section 5 applies only to some States and not others.
Although today’s legal action asks the federal court to approve its voter identification law, the State’s preclearance submission remains pending with the DOJ. The dual track approach is intended to facilitate the fastest possible resolution so that Texas can implement the new law as soon as possible. If the DOJ approves the law, the State will dismiss its lawsuit.