By Linda P. Campbell
lcampbell@star-telegram.com
Texas could have adopted a voter ID law that passed federal muster, but SB 14 hasn't yet found a friend in the right circles because lawmakers overreached.
That's the assessment of the three-judge federal panel that last week declined to approve Texas' law.
Now the state wants the U.S. Supreme Court to lend a hand out of this mess. It's a curious strategy for Republican politicians who decry "activist judges": Fail to achieve your ends then ask the justices to give you what you want.
How's that ends-justify-the-means strategy working so far?
Texas leaders want to make voters show a driver's license or other specified form of photo identification card. Those without one could get a special ID from the Department of Public Safety by showing proper documentation. State officials and the U.S. Justice Department quarreled over how many voters would have trouble getting an acceptable ID.
Despite what Texas Attorney General Greg Abbott would have us believe, the dispute in court isn't over whether states have power to police electoral fraud or whether requiring voters to produce a picture ID is a constitutional way of doing that.
The issue is whether Texas proved that its law, the strictest in the nation, won't reduce voters' participation in elections based on their race, ethnicity or language origin.
The Voting Rights Act requires Texas to show such proof before implementing a voting change. The court in Washington, D.C., ruled unanimously that the state hadn't met its legal burden.
The opinion by Judge David Tatel pointed out that the state's legal team asked for a speedy trial then dragged its feet. The state's lawyers argued that they needed a federal database of U.S. passports, military ID cards and citizenship certificates but then never served subpoenas on the agencies that could provide them: the State, Homeland Security and Defense departments.
But those things were ancillary to other factors: a certain number of voters, including minorities, lack the proper ID; some don't have transportation and/or would have to travel hundreds of miles to a DPS office; and people without necessary documents in hand could have to pay $22 or more for them.
The state acknowledged those facts but argued that the law wasn't aimed at preventing anyone from voting based on race -- and that it wouldn't impede many people anyway.
The court exasperatedly said that the state "offered no record evidence for either the truth of its contentions or their effect on racial minorities." (
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Tatel, who sits on the U.S. Court of Appeals in Washington, wrote that "everything Texas has submitted as affirmative evidence is unpersuasive, invalid, or both."
The evidence did persuade the judges that the costs of compliance "will fall most heavily on the poor and that a disproportionately high percentage of African Americans and Hispanics in Texas live in poverty," so the law likely will retreat on minority voting rights.
Abbott insists that the Supreme Court should give Texas the go-ahead on voter ID because Georgia's and Indiana's laws have stood up in court. But the panel said Texas' law really is not like the others: Indiana doesn't have to get voting changes precleared; Georgia provides free IDs and accepts a wider range of documents, so it costs voters less to comply.
Tatel called the ruling narrow, saying, "we have decided nothing more than that, in this particular litigation and on this particular record, Texas has failed to demonstrate that its particular voter ID law lacks retrogressive effect."
But he also noted that the Legislature tabled or defeated amendments that could have reduced the impact on poor minority voters, such as covering document or travel costs, making student or Medicare IDs acceptable or requiring DPS offices to operate during some evenings and weekends.
"During closing arguments, Texas's counsel complained that they had been shouldered with an 'impossible burden' in this litigation. This may well be correct, but Texas's lawyers have only their client to blame," Tatel wrote.
"If counsel faced an 'impossible burden,' it was because of the law Texas enacted -- nothing more, nothing less."
Linda P. Campbell is a Star-Telegram editorial writer.817-390-7867Twitter: @LindaPCampbell
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