Texas Voter I.D. Trial Opens

POLITICO

By Josh Gerstein

July 9, 2012

http://www.politico.com/news/stories/0712/78242.html

A panel of federal judges opened a trial in Washington, D.C., on Monday to decide whether Texas can carry out its year-old voter ID law, which the Justice Department contends will prevent Latino and African-American citizens from voting.

The case, which could make its way to the Supreme Court, is the first major federal court showdown in this election cycle over a series of laws Republican-controlled state legislatures have approved that require voters to show photo identification at the polls.

In March, the Justice Department Civil Rights Division refused to clear the Texas law, known as Senate Bill 14, saying Texas officials had failed to prove that it wouldn’t adversely affect minorities.

As the trial got under way in a packed courtroom, DOJ trial attorney Elizabeth Westfall went even further, arguing that the federal government will show racial motivation in Texas’s passage of the law.

“The facts will convincingly demonstrate the discriminatory purpose and effect of Senate Bill 14,” Westfall told the three-judge panel in her brief opening argument in a trial expected to last through Friday.

A lawyer for Texas countered that there’s no evidence of discriminatory intent and that the law is needed to prevent voter fraud.

The law, signed by Republican Gov. Rick Perry in May 2011, requires nearly all voters to show photo ID when voting in person. Most forms of state-issued photo ID, including driver’s licenses and firearms permits, are accepted. However, student IDs from Texas state universities are not.

Last year, South Carolina passed a similar law, which the Justice Department also rejected. South Carolina has also filed suit, but that case has yet to come to trial.

Under federal law, lawsuits seeking so-called “pre-clearance” of changes to voting procedures in all of seven mostly Southern states and parts of nine others, are heard by three-judge panels composed of two district court judges and an appeals court judge. D.C. Circuit Judge David Tatel and District Court Judges Rosemary Collyer and Robert Wilkins were selected to hear the Texas voter ID case.

Westfall said the Texas law is certain to deprive minorities of their right to vote because they often don’t have the types of ID required by the new law.

”At least 1.4 million registered voters in Texas lack any form of state-issued ID accepted under SB 14, and those voters are disproportionately Hispanic and black,” she said.

The lawyer opening the case for Texas, Adam Mortara, said legislators who passed the measure were reflecting the will of the people and what opinion polls show to be the clear preference of minority voters for voter ID legislation.

“The people want photo ID, and we gave it to them,” said Mortara, an attorney with the Bartlit Beck law firm in Chicago. “Despite the fact that all these people support this legislation, the Justice Department says we did it with discriminatory purpose.”

Mortara noted that seven states that have voter photo-ID laws on the books: Rhode Island, Pennsylvania, Georgia, Indiana, Tennessee, Kansas and New Hampshire. Most of those states are not subject to the pre-clearance process under the Voting Rights Act.

Mortara said that the scenarios in which voters lack the identification they would need to vote under the new law are more theoretical than real.

“It’s really quite difficult to find anyone who’s registered to vote who doesn’t have photo ID,” he said. “There are almost no people registered to vote in Texas who don’t already have photo ID.”

But a lawyer speaking on behalf of a variety of civil rights groups that have intervened in the case, Ezra Rosenberg of Dechert LLP, said the fraud that Texas claims it needs to crack down on doesn’t actually exist.

“Proofs will show, in fact, that SB 14 was a solution in search of a problem,” Rosenberg said.

The first witness called by the state was Brian Ingram, director of the elections division for the Texas secretary of state.

Ingram said 18 counties in Texas have more people registered than the counties’ voting-age population. He also said noncitizens, dead people and convicted felons are almost certainly on the state’s voter rolls, despite efforts to scrub them.

Ingram said officials believe 239 voters recorded as casting ballots in a May primary election were actually deceased prior to the election.

“Who is voting?” Mortara asked Ingram.

“I don’t know,” the election official said. “It tells us that it’s more common than we thought.”

Ingram also said that both he and his wife were in the database of Texas voters who the Justice Department contends lack a driver’s license. In fact, both have licenses, Ingram testified.

On cross-examination, Westfall established that Ingram has been in his job only since January and had no prior experience in election administration.

“You’ve never been to a polling place to observe an election?” she asked.

“That’s correct,” Ingram said.

Ingram also conceded that even with SB 14 in place, many foreign nationals would still as a practical matter be able to cast ballots since foreigners can legally get some of the acceptable forms of identification, such as a Texas driver’s license or U.S. military ID.

“That’s true … if they decide to,” the election official said.

In January, Collyer was one of three judges who sat for two weeks on a similar panel considering Texas’s request for clearance of its redistricting maps. That panel has yet to issue a final ruling.

While the issues in the voter ID case and the redistricting are different, Collyer noted that many of the lawyers for various parties connected with the cases are the same.

“It’s like seeing old friends,” the judge said.