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Tuesday, December 6, 2016

Originally posted at The Brad Blog

Greg Abbott, Texas’s attorney general, made a fool 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 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 that Texas Republicans enacted in 2011 as part of a desperate attempt to cling to power.

Rapidly shifting voter demographics is quickly working against the Lone Star State’s 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 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 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 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 state’s Photo ID law, 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 percent of Latino voters and 93 percent of African-American voters reportedly supported President Barack Obama. Republican Mitt Romney, on the other hand, was said to have won 59 percent of the white vote.

As of 2010, 37.6 percent of all Texans were Hispanic, according to the DoJ complaint. African-Americans accounted for 11.5 percent. While the combined total (49.1 percent) 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 percent of the Lone Star State’s population growth between 2000 and 2010. African-Americans accounted for 11.5 percent 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 professor 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 subcommittee 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.

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