After six years and three legislative sessions of sharp debate divided along party lines, the Texas Legislature passed a law in 2011 that required voters to show a photo ID in order to vote. The House passed its version in March, 101-48. After differences between the Senate and House versions were ironed out, both chambers approved the final version, SB 14, in May and sent it to Gov. Rick Perry, who had declared the issue an emergency item early in the session.
However, more than a year and a full election cycle after its passage, the law is still not in effect, its implementation first held up by the U.S. Department of Justice, then denied by a federal circuit court. Its ultimate fate could be decided by the U.S. Supreme Court.
Texans have been allowed to cast their votes after presenting their voter registration card, which was then checked against their precinct list. Voters who didn’t have the card — but whose names were on the list — could sign an affidavit confirming they didn’t have their cards, and, upon presenting any of a long list of approved documents, would then be able to cast their ballots. In the event the voter lacked any of those approved items, the state still allowed a provisional vote to be cast, with the burden of verification falling to the local voting board to verify the ballot within a week of the election.
The new law would require voters to provide government-issued ID cards including U.S passports and military IDs, Texas drivers’ licenses or personal IDs issued by the Department of Public Safety. Student IDs, such as those issued by state universities, are not accepted.
People ages 70 and over, along with persons with disabilities documented in writing by either the Social Security Administration or designated by the Veteran’s Administration as having a “disability rating of at least 50 percent” are exempt from the new law’s requirements. The law also stipulates specific actions the state must take to aid enforcement: Special advance notice on changes with the law must be given to voters, election officials must get training on the new provisions, and state-approved IDs must be provided free of charge.
No consideration was given to other costs that might be incurred with the new law, however. For example, acquiring supporting documents for such IDs carries its own costs, and there are no DPS offices in 27 of Texas’ 254 counties, potentially leaving some Texans to travel 100 miles or more to obtain their free ID.
The federal government’s intervention into how Texas conducts its elections has its roots in the Voting Rights Act of 1965, which aimed to ensure the 15th Amendment was not circumvented.
In Section 5 of the Voting Rights Act, all or parts of 16 states are required to receive federal clearance before making any changes to voting laws, either by seeking a determination from the U.S. Court of Appeals District of Columbia Circuit or approval from the Justice Department. For Texas, one of nine states entirely under the jurisdiction of the Voting Rights Act, passing a voter ID law guaranteed federal scrutiny.
In July 2011, Texas formally asked the Justice Department to “preclear” the law and allow it to go into effect Jan. 1, 2012. The federal government has 60 days to take one of three actions: approve the request, deny it or ask for more information.
In September, the Justice Department told Texas to resubmit its application for preclearance, along with more information about how it would educate voters to the new requirements and how it would train election officials. It further instructed the state to provide demographic details about the estimated 605,000-plus voters who have no photo ID, including how many have Spanish surnames, in what counties they reside and their racial backgrounds.
By forcing Texas to resubmit its application, the Justice Department window to act was again reset to 60 days.
In October, lacking the specific information requested, Texas nevertheless sent in what it had been able to cobble together, submitting a U.S. Census Bureau list of all Hispanic surnames in Texas, which the state offered to cross-check both against its voter rolls and Department of Public safety records –– which only began including the designation “Hispanic” as part its licensing paperwork in 2009.
In November, the Justice Department came back saying it still didn’t have the answers it needed to determine whether Texas’ voter ID law would “have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group,” and again requested more information. That triggered yet another 60-day window for the federal government.
Jan. 1 came and went without the law taking effect. On Jan. 13, 2012, Texas resubmitted application for clearance, the window for preclearance long gone. On Jan. 23, Texas Attorney General Greg Abbott, in anticipation of either further delay or outright denial from the Justice Department, chose the only other option available to Texas under Section 5 of the Voting Rights Act: he filed suit against the federal government.
Noting that the Supreme Court had upheld a similar voter ID law in Indiana, Abbott framed the lawsuit as an attempt to get the federal government to recognize Texas’ right to protect its electoral process from fraud. Opponents of the law pointed out that examples of this type of fraud — showing up at the polls claiming to be someone else and voting — is almost non-existent, and some say the law’s real intent is to disenfranchise poor, elderly and ethnic minority voters — blocs that often vote Democratic.
Debatable questions of intent aside, Abbott’s example of Indiana’s law raised a crucial point: Indiana does not fall under the provisions of the Voting Rights Act. South Carolina, on the other hand, like Texas entirely under the sway of the Act, saw its law,less restrictive than Texas’ in that it offered free rides for citizens to get their IDs, struck down in December 2011.
The case went to trial in July 2012, heard by the United States District Court for the District of Columbia, as designated by the Voting Rights Act. After five days of testimony, the three-judge panel issued an Aug. 30 decision striking down Texas’ voter ID law.
Writing in the decision that “record evidence demonstrates that, if implemented, SB 14 will likely have a retrogressive effect,” the judges also chided Texas in the decision for its “failure to act with diligence or a proper sense of urgency.” In an editorial in The Dallas Morning News the day after the decision was released, one of the judges, Justice David Tatel, an appointee of President Clinton, called Abbot’s comparison of Texas’ law to laws passed in Indiana (and Georgia, a state included as a whole in the Voter’s Rights Act) “a gross misreading,” saying that both of those states had included many measures to make obtaining ID both easy and nearly free of cost. Tatel ended his editorial with a suggestion for Texas lawmakers, lifted directly out of the circuit court’s decision:
Nothing in this opinion remotely suggests that Section 5 bars all covered jurisdictions from implementing photo ID laws. To the contrary … such laws might well be pre-cleared if they ensure (1) that all prospective voters can easily obtain free photo ID and (2) that any underlying documents required to obtain that ID are truly free of charge.
Although Texas’ law did provide for the state to provide free IDs, it failed to offer mechanisms that would make them easily obtained and nearly free of cost –– a difficult and perhaps prohibitively expensive proposition in a huge state with a widely-scattered population.
Abbott promised to appeal the case to the Supreme Court. Meanwhile, SB 14 languishes, unenforced; Texas voters were not required to show their IDs in the 2012 elections. In early January, 2013, at the beginning of the 83rd session, State Rep. Eric Johnson, D-Dallas, filed five bills directly related to voting in Texas. One of them, House Bill 465, calls for the repeal of the Texas Voter ID.