By Ernest A. Canning on 9/4/2013, 6:05am PT  

With Brad Friedman

Greg Abbott, the Lone Star State's Attorney General, made a fool out of himself recently when he issued his public response to a U.S. Dept. of Justice lawsuit challenging the Texas Republicans' new polling place Photo ID law as a violation of the Voting Rights Act (VRA) and of the U.S. Constitution.

The "facts" he publicly offered in the law's defense were wholly misleading and, worse, plainly inaccurate. But if Abbott thought that was embarrassing, he may have no idea what he's in store for when he actually shows up in a court of law, seeking to defend the Photo ID law which Texas Republicans enacted in 2011 as part of a desperate attempt to cling to power.

Rapidly shifting voter demographics are quickly working against the Lone Star Republican Party. The numbers are leading them into a panic over an ever-increasing minority population and rising voting rates to go with it. So they have been, since 2005, attempting to squelch the inevitable by trying to tamp down minority turnout any way possible. But Texas Republicans are not only in a battle with demographics. The key facts about the Lone Star State's Photo ID restrictions --- as already determined in a court of law --- are not on their side either.

In both United States v. Texas, the DoJ's newly filed legal challenge to the Texas Photo ID restriction law, and in Veasey v. Perry, a separate federal lawsuit filed by Rep. Marc Veasey (D-TX) and later joined by Dallas County, the plaintiffs not only set forth allegations but facts already found to be true last year by a unanimous three-judge U.S. District Court panel.

Those already established facts reveal that the state's Photo ID law (SB 14) violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution because it imposes unreasonable, and often impossible, burdens upon the right of the poor to vote that would likely result in disenfranchisement. The three judge panel further found, via "undisputed record evidence", as they described it, that a disproportionate percentage of poor Texans who would be subject to such disenfranchisement are Hispanic and African-American.

At the time, however, despite establishing those uncontested facts, those Constitutional concerns were not the basis of the case in front of the federal court in question. But they are now.

Given the Lone Star State's acknowledgment during the previous litigation that it could not contest the facts already on record, the Texas Republicans' gambit to try and turn back time at the polls, or, at least, slow it down as the demographic clock continues to tick against them, is exceedingly unlikely to work. Here's why...

Tick, Tick, Tick...

While both of the newly filed federal lawsuits point to the previous judicial finding that the law had a discriminatory purpose and effect, the DoJ provides an especially compelling context in its complaint. It argues that the Lone Star State's Photo ID Law, SB 14, is part of a desperate, racially motivated attempt by state Republicans to cling to power in the face of demographic changes that will --- if accompanied by unobstructed, small-"d" democratic access to the polls --- reduce white voters in Texas, and with them, the TX GOP, to (ironically enough) minority status.

Keep in mind that in the 2012 election, nationally, 71% of Latino voters and 93% of African-American voters reportedly supported President Barack Obama. Republican Mitt Romney, on the other hand, was said to have won 59% of the white vote.

As of 2010, 37.6% of all Texans were Hispanic, according to the DoJ complaint. African-Americans accounted for 11.5%. While the combined total (49.1%) still meant that, in 2010, a majority of the voting population were non-Hispanic whites, as Bob Dylan put it, "the times [here, the demographics], they are a changin'." Hispanics accounted for 65% of the Lone Star State's population growth between 2000 and 2010. African-Americans accounted for 11.5% of that growth. Put another way, during the first decade of the 21st Century, Texas' Hispanic/African-American populations grew at a rate that was more than three times as fast as the growth of the non-Hispanic white population.

The DoJ alleges that, commencing in 2005, smack dab in the middle of this dramatic demographic sea-change, "the Texas legislature advanced increasingly stringent and burdensome voter ID bills over several legislative sessions," culminating in the 2011 passage of what, last year, a three-judge U.S. District Court in D.C. found to be the strictest Photo ID law in the nation.

In its lawsuit, the DoJ points to case law establishing that, in determining whether discriminatory intent is present, a court should examine whether a state relied upon "unusual procedures" that would suggest that the nondiscriminatory reasons given for the passage of a law are mere pretext designed to mask invidious discrimination.

Such "unusual procedures" in this case, according to the DoJ, include the fact that SB 14 was passed on an "emergency" basis.

If there was an "emergency" need to pass SB 14, it certainly cannot be found in an epidemic of voter fraud --- not when one considers that the only type of voter fraud that can be prevented by polling place Photo ID laws is in-person impersonation.

In-person impersonation is a phantom menace, in Texas and elsewhere. According to sworn congressional testimony by Loyola Law Prof. Justin Levitt in September of 2011, for instance, there had been just nine (9) possible cases of in-person impersonation out of more than 400 million votes cast at the polls nationwide between 2000 and the time of his testimony before a Senate sub-commitee that year.

Last, year, while trying to defend a similar Photo ID law in Pennsylvania --- a law they claimed was needed to prevent voter fraud --- Republicans entered an in-court admission that they were "not aware of any incidents of in-person voter fraud in Pennsylvania and do not have direct personal knowledge of in person voter fraud elsewhere."

The only related "emergency" faced by TX Gov. Rick Perry and his fellow Republicans in the state legislature, since the time they began their years-long efforts at disenfranchisement in 2005, was the inevitable elimination of the ability of the TX GOP to cling to power if every legal voter who wants to vote actually gets to vote in an increasingly adverse demographic landscape for Republicans.

'Retrogressive Effect'

Under Section 5 of the VRA, covered jurisdictions were barred from enforcing changes to election law unless they obtained preclearance from either the DoJ or a three-judge panel in the U.S. District Court in Washington D.C. To obtain that preclearance, the covered jurisdiction bore the burden of demonstrating that any change to its voting law "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color or [membership in a language minority group]."

While it was still available, before being all but dismantled by the U.S. Supreme Court earlier this Summer, Section 5 provided an efficient remedy to new, discriminatory laws. Other than in cases where a state exercised its right to file a preclearance request in a federal court (instead of with the DoJ), Section 5 allowed the DoJ to simply submit a letter to a covered jurisdiction, informing them of its denial of preclearance. That occurred in Texas' case when Assistant Attorney General Thomas Perez submitted a March 12, 2012 letter informing the Texas Director of Elections that the DoJ, based on statistics supplied to them by the state, had found SB 14 to be discriminatory, and denied preclearance for the new law.

That letter, however, was submitted more than one month after Texas filed --- likely, and correctly anticipating an adverse response from the DoJ --- a Jan. 24, 2012 complaint in Texas v. Holder, seeking preclearance instead from the U.S. District Court. In their Aug. 30, 2012 decision in the case, a unanimous three-judge panel denied the preclearance request as well, expressly finding "that SB 14 is likely to lead to 'retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.'"

It is unfortunate that the only issue that could be placed before the three-judge panel at the time was Section 5 preclearance, since the D.C. court expressly noted in their decision:

This case does not hinge solely on the burden of proof. Undisputed record evidence demonstrates that racial minorities in Texas are disproportionately likely to live in poverty and, because SB 14 will weigh more heavily on the poor, the law will likely have retrogressive effect.

Indeed, during the course of the lawsuit, counsel for the Lone Star State was unable to contest key facts that demonstrated that SB 14, as applied to the poor, who are disproportionately minorities, so burdens the right to vote as to establish that its polling place Photo ID restrictions violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. But, of course, the court did not rule on SB 14's Constitutionality at the time, as the only issue it was called upon to decide was Section 5 preclearance.

Had that Constitutional issue been before the court back then, there would have been no need for the newly filed complaints in United States v. Texas and Veasey v. Perry, as that Constitutional issue would have provided an alternative reason for the three-judge federal panel to permanently enjoin enforcement of SB 14 on Constitutional grounds.

On June 25, 2013, while the Lone Star State's appeal of the Aug. 30, 2012 decision in Texas v. Holder was still pending, the U.S. Supreme Court handed down its controversial, 5-4 decision in Shelby County v. Holder. That decision, by rejecting the VRA's Section 4 formula established by Congress to identify which jurisdictions should be covered by Section 5, eliminated the need for previously covered jurisdictions with a long history of racially discriminatory voting rules, to seek Section 5 preclearance for newly enacted voting changes. Shelby County also rendered moot the denial of preclearance in Texas v. Holder, as previously determined by both the DoJ and the three-judge federal panel.

On June 27, the Supreme Court issued an order to vacate [PDF] the Texas v. Holder panel decision.

The Court's June 27 order to vacate merely reflects that, since there are no states that can be considered as "covered" Section 5 jurisdictions --- at least not until Congress enacts a new Section 4 formula, which Republicans appear loath to do --- Texas no longer needs the preclearance order it had unsuccessfully sought to obtain, first from the DoJ and then from the D.C. District Court.

The Supremes order to vacate did not address the legal significance of the undisputed facts set forth in the Aug. 30, 2012 three-judge panel decision, insofar as they relate to Section 2 of the VRA and the U.S. Constitution. Those matters will soon be before a court of law, and it's likely to be trouble for Texas.

'Slammed and Dunked'

Just as Republicans in North Carolina saw in the U.S. Supreme Court's Voting Rights Act decision a green light to reinstate Jim Crow at the polls, the Veasy complaint against Texas highlights state Republican Attorney General Greg Abbott's announcement immediately after the SCOTUS decision: "With today's decision, the State's Voter ID law will take effect immediately." Abbott made that statement, the Veasey complaint alleges, "despite having available...the opinion of the three-judge court in D.C. that serves as notice...that SB 14 has discriminatory purpose and effect."

While the Supreme Court, in Shelby County, essentially gutted Section 5, it also acknowledged in unambiguous language that its ruling "in no way affects the permanent nationwide ban on racial discrimination."

In his embarrassing website response to the DoJ's newly filed legal challenge, Abbott wrote:

Just days after the U.S. Department of Justice arrested a Texas woman for illegally voting five times in the same election, the Obama administration is suing to stop Texas’ commonsense voter ID law. The U.S. Supreme Court has already ruled that voter ID laws do not suppress legal votes...

That statement contains at least two (2) blatant falsehoods. First, as The BRAD BLOG pointed out, the arrest cited by Abbot pertained to absentee ballot fraud. The Texas polling place Photo ID law was neither designed to, nor capable of, preventing absentee ballot fraud.

Second, contrary to Abbott's assertion, the U.S. Supreme Court never ruled Photo ID laws "do not suppress legal votes."

The only time that the Supreme Court ruled on a state polling place Photo ID law was when it upheld Indiana's Photo ID law against a legal claim that the statute was unconstitutional "on its face." That occurred when, in 2008, the Court handed down its decision in Crawford vs. Marion County Election Bd..

The differences between the Photo ID laws in Indiana and Texas are so stark, however, when measured against the test laid out by the Court's lead opinion in Crawford --- an opinion written by Justice John Paul Stevens and joined by Chief Justice John Roberts and Justice Anthony Kennedy --- it prompted John Tanner, the former Chief of the DoJ Voting Rights Division under George W. Bush, to warn Texas Republicans not to waste their time passing Photo ID laws.

"Voter ID proponents think that when they face the inevitable court challenge to any law they manage to pass, they'll have a slam dunk," Tanner wrote. "They might find that they are the ones who'll get slammed and dunked."

That, of course, is the same John Tanner who repeatedly overruled his career colleagues at the DoJ in order to defend disenfranchising Photo ID laws on behalf of the Bush regime in other states. And, yes, the same John Tanner who was infamously captured on videotape by The BRAD BLOG in 2010 making a racially-charged remark (see video at right) that triggered a political firestorm, Congressional hearings and, ultimately, Tanner's resignation.

Although The BRAD BLOG would ordinarily be loath to rely on anything someone like Tanner had to say or write, in this instance, the findings of the three-judge panel in Texas v. Holder, expressly rejecting the Lone Star State's reliance upon the Indiana Crawford case, underscore that Tanner's warning to TX Republicans was spot on.

In Crawford, the lead opinion cited, with approval, the test for determining whether or not, even in the absence of invidious discrimination, a state election law can survive a Constitutional challenge under the Equal Protection clause. Specifically, pursuant to Harper v. Virginia Bd. of Elections (1966), an election law can pass that Constitutional test only if the "interests put forward by the State as justifications" outweigh the burdens imposed on the right to vote.

Indiana's Photo ID law passed the test because the Crawford plaintiffs, who challenged the statute "on its face," failed to offer evidence establishing that any voter would either be disenfranchised or unduly burdened by the state's Photo ID restrictions. As a facial challenge, there was simply no evidence presented in the case to dispute the District Court's finding that the Indiana statute did not impose an undue burden.

In Crawford, the District Court found that 99% of Indiana voters already possessed the requisite ID to cast a vote under the then-new law. Based solely upon the record before it, the Supreme Court concluded in the case, that obtaining a free Photo ID from a nearby Bureau of Motor Vehicles (BMV) in the Hoosier State did not represent "a significant increase over the usual burdens of voting."

That was a far cry from the findings of the U.S. District Court in Texas v. Holder with respect to SB 14.

Where Indiana offers free Photo IDs in every county and even online, in Texas, where "would-be voters need to apply for [a state-approved Photo ID at a Department of Public Safety] DPS office...almost one-third of Texas's counties (81 of 254) lack one."

The unanimous three-judge panel added:

While a 200 to 250 mile trip to and from a DPS office would be a heavy burden for any prospective voter, such a journey would be especially daunting for the working poor. Poorer citizens, especially those working for hourly wage, will likely be less able to take time off work to travel to a DPS office --- a problem exacerbated by the fact that the wait times in DPS offices can be as long as three hours during busy months of the year.

Moreover, a "law that forces poorer citizens to choose between their wages and their franchise denies or abridges their right to vote," the D.C. District Court judges said. Yet such a choice is precisely what SB 14 requires in Texas because, as they determined, none of the "DPS offices are open on weekends or past 6 p.m."

The District Court pointed to undisputed census data, which not only shows that racial minorities are disproportionately poor in Texas, but that a far greater percentage of Hispanics and African-Americans live in households that lack a motor vehicle. "If traveling over 200 miles constitutes a substantial burden on people without driver's licenses who can nonetheless find a ride," the court wryly observed, "imagine the burden for predominantly minority populations whose households lack access to any car at all."

When these and other burdens --- such as the cost of obtaining the documents required to obtain the requisite Photo ID in the first place --- are considered in conjunction with significant evidence of racial motivation, it leaves little room for doubt as to the ultimate outcome of these two newly filed cases. SB 14 will in all likelihood be struck down at the Corpus Christi U.S. District Court level based upon the very facts that the Lone Star State's legal counsel was already unable to dispute in Texas v. Holder.

Indeed, absent a complete abandonment of the test Roberts and Kennedy themselves laid down in the 2008 Crawford case, Texas would also likely find itself on the wrong side of a 6-3 SCOTUS decision, assuming the Court were even willing to grant a hearing in the case.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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