Texas v. Holder and the Propriety of Voter ID Legislation

Posted by on Sep 12, 2012 in Updates

In Texas v. Holder, the federal district court in Washington unanimously struck down a Texas voter ID law (henceforth “SB 14”) requiring that prospective voters present photo IDs before casting their ballots. Judge Tatel, writing for the three-judge panel, deemed SB 14 to be “retrogressive” and “the most stringent in the nation” — “far more burdensome” than similar laws in Indiana and Georgia, the former of which the Supreme Court upheld in Crawford v. Marion County Election Board.

In arriving at its decision, the court first noted the high burden of proof Texas faced. It was the state, which bore the tough burden of showing that SB 14 would have not any retrogressive effect on racial minorities (or, to use the precise language of case law, a “retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise”), and not the federal government in showing that SB 14 would have some retrogressive effect. Next, the court then argued that Texas failed to carry its burden for the forgoing reasons: one, nothing in social science literature speaks conclusively to the effect of phone ID requirements on voter turnout, and two, no significant lessons can be drawn from the Indiana and Georgia laws, which the court believed to be less restrictive than SB-14. Finally, the court found that Texas failed to submit reliable evidence showing that the rate of ID possession is consistent across different racial groups, so that voter ID restrictions would not disproportionately affect racial minorities. In its packed opinion, the court additionally argued that Crawford does not control in this case (the issue here was effect of the voter ID law on minority voters specifically, while the issue in Crawford was the validity of the voter ID law as applied to all, not merely minority, voters in the state).

The court was correct to focus on the distinctions between Crawford and the instant case, and in subsequently concluding that Crawford should not be binding. It was additionally right to harp on the hodgepodge of contradictory evidence resulting from inconsistent studies offered by each side to the case. However, the court was too quick to dismiss the relevance of voter ID legislation in Indiana and Georgia; the differences between the Texas law and its analogs in Indiana and Georgia were much finer than the court purported them to be. For instance, among the many other fine-grained distinctions which the court seemed strained to draw, was the fact that voters may (but note: may, not must) have to incur at least $22 in out-of-pocket costs to obtain a voter ID (though the voter ID themselves would be free, voters would have to present secondary ID, such as a birth certificate, in order to obtain the voter ID). The court was worried that the $22 cost to obtaining a secondary ID, as well as the associated travel time and expense, would be too onerous for indigent voters to bear. In Indiana, by contrast, secondary ID can cost as little as $3-12.

However, is the extra $10 or $20 such a meaningful difference, as to break the bank for even very poor minorities? Should it help tip the scale towards invalidating a law that is otherwise similar to a law either upheld by the Supreme Court or implicitly accepted by the Justice Department? Sufficient to outweigh the myriad of benefits (e.g., increased legitimacy, reducing election fraud, preserving the integrity of the voting process) stemming from stricter ID laws? No, no, and no — especially as this expense: 1) is hypothetical, 2) may be easily avoided by a large subset of the population, even minorities, who already own secondary ID, 3) would, even if incurred, be incurred only once and not every election cycle, and 4) paltry when compared to debt arising from daily or otherwise necessary expenditures, such as food, rent, and medical bills? This is but one of the distinctions the court draws, but it nonetheless demonstrates how the court carves out superficial and far too fine-grained distinctions in order to dismiss the state’s reference to relevant voter ID laws.

Another problematic argument by the court is that the evidence clearly shows SB 14’s retrogressive effect on minority voters. Now, this argument would be valid had the court come out one way (against the state of Texas’ position) on the opposing sociological studies. But the court did not, having concluded (just before it launched into an argument on SB 14’s retrogressive effect) that trial evidence can neither conclusively map the effects of photo ID laws on voter participation, nor show the causal relationship between photo ID restrictions and widespread social ills. In fact, the indeterminacy of the evidence was a key rationale for the court’s conclusion that Texas cannot overcome its high burden of proof. Against this landscape of reasoning entertained by the court, its subsequent stance on SB 14’s retrogressive effect can only seem non sequitur.

Though the Texas law would have probably faltered anytime, given the high burden of proof and the veritable mess of statistical evidence that does not speak to each side, the court’s many missteps may cause the decision to be overturned on appeal. Texas Attorney General Greg Abbott has already vowed to take the case to the Supreme Court. Whether his confidence is warranted, only a cert grant (or denial) will tell.