Texas Voter ID faces its biggest trial

Texas' Voter ID goes on trial in Washington, D.C., this week, and although the proceeding ostensibly is governed by federal law, it might sound like it's a lot about politics.

That's because while Voter ID involves grand talk about protecting the integrity of elections and protecting everyone's right to cast a ballot, it's underscored by a power tug of war between Republicans and Democrats.

Texas Republicans insist that identification at the polls is essential to combat the problem of voter fraud -- even though state Attorney General Greg Abbott's own numbers show it's far less of a problem than he would have people believe.

Texas Democrats insist that the requirement will wrongly deny the rights of thousands of poor, elderly and minority voters -- even though it must be acknowledged that the voters they're worried about often choose not to participate.

Democrats fear that their election success would be hurt because many voters lacking proper ID would tend to vote Democratic.

Republicans counter that if Democrats get fewer votes, it's OK as long as the ID requirement wasn't aimed at deterring Hispanics or blacks from voting based on their race or ethnicity.

Under the 2011 law, everyone who votes in person must show a government-issued photo card: military ID, driver's license, U.S. citizenship certificate that has a photo, U.S. passport, concealed-handgun license or voter card from the Department of Public Safety. Student IDs aren't accepted, even if issued by state universities. Disabled voters are exempted, and mail-in ballots don't require an ID.

The main issue before a three-judge panel (Appeals Court Judge David Tatel and District Judges Rosemary Collyer and Robert Wilkins) is whether the law complies with Section 5 of the 1965 Voting Rights Act.

Section 5 requires Texas and several other jurisdictions to get electoral changes like this reviewed to ensure they don't prevent anyone from voting based on race, color or language differences. Texas sued the Justice Department in January to get approval, but the federal court held off ruling until the department studied the law.

In March, the department declined to pre-clear the ID requirement. The department found, based on the state's data, that more than 600,000 registered voters lack a driver's license or ID card provided by the Department of Public Safety and a disproportionate share are Hispanic. The department said that making free DPS cards available wasn't enough because 81 of the state's 254 counties don't have offices, only 49 of the 221 offices stay open late or on weekends and Hispanics are more likely than non-Hispanics to lack convenient transportation.

The court will look at evidence dealing with the potential impact on Hispanic and black voters.

But another key question almost certainly will be whether Republicans in the Legislature deliberately discriminated against racial, ethnic and language minorities in enacting the law. Leading up to the trial, Justice Department lawyers sought to take sworn depositions from legislators who steered the bill into law to discern their intent. Abbott agreed to let them be questioned only after it appeared that continued resistance would delay the trial.

Texas officials are eager to have the ID mandate in place for the November general election, when the ballot will include the presidency, a U.S. Senate seat and 36 spots in the U.S. House, plus major state and local offices.

In a brief, the state argued that the law "was not enacted with the purpose of disenfranchising minority voters, and there is not even a suggestion that the state would administer those laws in a racially biased manner."

But Abbott went further, arguing that if the law doesn't stand because it might disproportionately harm minorities, then Section 5 exceeds Congress' power under the Constitution.

It's a brazen and risky tactic. In May, the U.S. Court of Appeals for the District of Columbia Circuit upheld Section 5 in a suit filed by Shelby County, Ala. Tatel wrote the majority opinion for a 2-1 panel.

This will be a trial worth watching.

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