Three Strategies (So Far) to Strike Down Strict Voter ID Laws Under Section 2 of the Voting Rights Act

Posted By: Jon Sherman, Staff Attorney

Post Date: Monday, November 11, 2013

The U.S. Department of Justice has been forced to explore different strategies to protect voters from discriminatory and burdensome election laws in the void left by the U.S. Supreme Court’s decision in Shelby County v. Holder. Without a formula to determine which jurisdictions must preclear their election laws under Section 5 of the Voting Rights Act, Section 2 is the next best option to protect voters.

In August, the U.S. Department of Justice filed suit under Section 2 of the Voting Rights Act to block Texas from enforcing its strict photo ID requirement for voting. Separate Voting Rights Act lawsuits have been filed by LULAC and the Campaign Legal Center in Veasey v. Perry, and the Texas NAACP, the Mexican American Legislative Caucus, represented by the Brennan Center for Justice, among other groups, in Texas State Conference of NAACP Branches v. Steen. It is being reported that the Veasey counsel and DOJ disagree over when the trial in those cases should be held. The Veasey lawyers want a trial date before the midterm elections next November, and DOJ wants a trial after that election in early 2015. This seemingly mundane scheduling dispute actually says a great deal about DOJ’s developing strategy for proving Texas stands in violation of the Voting Rights Act.

No strict photo ID requirement for voting has been brought to trial under Section 2 of the Voting Rights Act. Until now. The trial over Wisconsin’s photo ID law in Frank v. Walker and Jones v. Deininger, which began last Monday, is the first of its kind. Most cases under Section 2 of the Voting Rights Act since the Supreme Court’s landmark 1986 decision in Thornburg v. Gingles have challenged at-large election schemes, redistricting maps, and other ways in which electoral power is carved up and allocated. Leaving aside all of the intricacies and million-dollar questions of proving a Voting Rights Act violation in this novel context, it is commonly accepted that at a bare minimum plaintiffs attacking a voter ID law must show some kind of racial disparity in the rates of possession of valid ID. Three strategies have emerged so far.

First, in Frank v. Walker, the plaintiffs’ expert witness conducted a phone survey of over 2,000 eligible and/or registered voters to assess whether black and Hispanic voters possess valid photo IDs and the primary documents necessary to acquire the same, at lower rates than their white counterparts. In a report available starting on page 9 here, the expert witness concluded that “[e]ligible African American voters are 182 percent less likely to possess an accepted photo ID, than are whites[,]” and “[e]ligible Latino voters are 206 percent less likely to possess an accepted photo ID, than are whites.” Second, in Jones v. Deininger, the plaintiffs’ expert witness matched records in the statewide voter registration database against Wisconsin Department of Transportation driver’s license and state ID records. He then enlisted a company “that maintains proprietary data on race and ethnicity” to analyze the remaining 300,000-plus non-matching records “to identify the race of individuals based on identifying data contained in the Wisconsin voter registration database.” The expert concluded that 12.2% of Asian Wisconsin voters, 11.5% of black voters, and 19.2% of Hispanic voters lacked a driver’s license or state ID card, as compared to 8.3% of their white counterparts.   

A third strategy had actually been used in the earlier case of Gonzalez v. Arizona. This case is widely known for traveling all the way up to the Supreme Court, which ultimately ruled that the National Voter Registration Act forbids the state from adding a proof-of-citizenship requirement to the federal registration form. But the case also involved a claim under Section 2 of the Voting Rights Act attacking Arizona’s voter ID law. To support that distinct claim, the plaintiffs introduced an analysis of provisional ballots rejected due to a lack of valid ID, including a common Spanish surname match to assess whether there was a racially disparate impact on minority voters. The courts ultimately deemed this evidence insufficient to establish a statistically significant racial disparity. But there was one crucial difference between that case and the more recent suits in Wisconsin and Texas (and now also North Carolina): Arizona didn’t have a strict photo ID law. Arizona’s law requires a voter to present photo ID or two forms of non-photo ID.

It is this third strategy, as of yet untested on a strict photo ID requirement for voting, that DOJ seems to be angling for, as a way to harvest evidence of any racially disparate impact from actual election results. The 2010 Census demonstrated that one-third of Texas’s voting-age population is Hispanic and 11.6 percent African-American. In arguing for a 2015 trial date, it seems that at least part of DOJ’s strategy will be to try and introduce evidence on the relative percentages of rejected provisional ballots by minority and majority voters. They will likely also pursue some version of Strategies 1 and 2, and DOJ and counsel for the Veasey plaintiffs could use such evidence, in addition to declarations from affected voters and legislative history, to obtain a preliminary injunction for the 2014 election, pending an ultimate resolution of the case at trial in 2015.

There are of course reasonable arguments to be made in defense of both DOJ’s and the Veasey counsel’s respective positions. On the one hand, it would be a tragedy if the Texas photo ID law were still in effect next November. On the other hand, as the Supreme Court’s 2008 decision upholding Indiana’s photo ID law in Crawford and Judge Richard Posner’s recent backtracking on his role in that litigation made abundantly clear, it is crucial to marshal the strongest possible evidence before bringing these claims into court. Sadly, judges have thus far not been well-attuned to the consequences of forcing voters to navigate the bureaucracy of a DMV and the disproportionate impact on minority voters. Hopefully that is about to change.