By Maria Recio, McClatchy Newspapers –
WASHINGTON — The Texas voter ID law came under heavy fire Friday from the three-judge panel charged with determining its legality under the Voting Rights Act.
After a week-long trial, courtroom 8 in the U.S. federal courthouse was packed by 9 a.m. EDT Friday as the final arguments were made before the judges in the high-stakes Texas voter ID case.
For the state of Texas — and state Attorney General Greg Abbott, in particular — it was the final pitch in an aggressive move to secure pre-clearance, as required under the Voting Rights Act, of its photo ID requirement for voters in time for Election Day.
For the federal government — and U.S. Attorney General Eric Holder, in particular — it was the chance to make the Texas voter ID law the test case against what a Justice Department lawyer said was a return to an era of discrimination against minorities, with numerous states enacting what Holder sees as restrictive laws. In a speech to the NAACP this week in Houston, Holder called the laws “poll taxes,” the voting fees aimed at minorities struck down by the courts during the Civil Rights era.
And for the interveners, the groups representing minorities and interest groups, the case came down, they said, to their right to vote and the 1.5 million eligible Texas voters who do not have the requisite photo ID, which the Texas law limits to such forms of identification as a driver’s license, passport and license-to-carry gun permit.
The three judges sharply questioned John Hughes, the attorney representing Texas when he began his argument by saying “photo ID laws have no effect on turnout.”
District Judge Rosemary Collyer, who is presiding, and who is also the lead judge in the pending Texas redistricting case, immediately said that there had to be “an uneven influence” on voters who did not have a driver’s license or economic means to obtain an ID — a birth certificate can cost $22 and an $8 mailing fee. “An uneven impact would be felt, wouldn’t it?”
Hughes responded that evidence in states such as Indiana and Georgia with similar laws indicated that “no one is prevented from voting.” But that only set off U.S. Court of Appeals Court Judge David Tatel who kept up a relentless line of questioning on whether the state’s photo ID law worked as “a deterrent” for minorities to go to the polls and therefore amounted to “retrogression.”
The judges must determine whether the law creates retrogression, effectively reducing the access to vote for minorities, and whether there was an intent to do so by the legislature under section 5 of the Voting Rights Act.
And Tatel reminded the courtroom that it was the state’s burden of proof under the law to prove that the law was not retrogressive. “Technically, the government doesn’t have to do anything,” said Tatel of the Justice Department. “There is a subset of people who do not have ID,” he said. “The economic burden of obtaining it for people in Texas who are disproportionately poor creates the retrogression.”
The Texas position, said Hughes, was “There is no ID disparity.”
District Judge Robert Wilkins, who is African American, also was pointed in his questioning, asking if the poll tax and literacy tests — which are now illegal — would stand up under the state’s approach.
Hughes said since the tax was unconstitutional and the questions were hypothetical, that it would depend on the evidence of what impact it would have on people of color.
Much of the final arguments — and the entire case — turned on expert testimony and studies, with the Justice Department and interveners scoffing at a study promoted by Texas that showed a high satisfaction rate from voters questioned about photo ID but that only had a 2 percent response rate.
But the state skewered the Justice Department’s “no identification” list, which showed thousands of Texans with no ID who turned out to have different names spelled on their voter registration and drivers’ licenses, including Sen. Kay Bailey Hutchison, R-Texas, and former Sen. Phil Gramm, R-Texas.
Minority groups, especially Latinos, the state’s fastest growing population, have taken a strong line in the case and expressed confidence after the trial ended.
“This is a proposed solution in search of a problem,” said Texas state Rep. Trey Martinez Fischer, D-San Antonio, who is chairman of the Mexican American Legislative Caucus of the Texas House of Representatives. “Minorities are not objecting to voter ID, this is just not it.”
“We really are confident that pre-clearance is not going to be granted in this case,” said Jose Garza, counsel for the caucus.
After Holder’s Justice Department blocked the law from taking effect by refusing to pre-clear it in March, Abbott pushed for an expedited hearing before a three judge panel and also said he would challenge the constitutionality of section 5.
In a detailed fact sheet issued late Thursday, Abbott’s office said “that the U.S. Department of Justice relied on flawed data, inaccurate information and unreliable expert conclusions” in making its case.
The state would like a ruling by the end of August — pre-clearance would give them time to implement the law before the Nov. 6 elections.
Judge Collyer indicated that a quick turnaround was likely, saying at the end of the trial, “The court will try to issue a decision in quick order.”
