To no one’s surprise, the Obama Justice Department’s Civil Rights Division have objected to the voter ID law passed by the Texas legislature. The DOJ under Attorney General Eric Holder claims that it is discriminatory under Section 5 of the Voting Rights Act for Texas to require voters to present a government-issued photo ID at the polling place, because it will supposedly hurt Hispanic voters—even though any Texan can get a photo ID for free.
Never mind that if you want to exercise your First Amendment right to “petition the Government for a redress of grievances” by talking to anyone at the Justice Department, you have to present a government-issued photo ID if you want to get into their headquarters in Washington. How discriminatory!
The March 12 objection letter from Thomas Perez, the Assistant Attorney General for Civil Rights—a former staffer for Senator Ted Kennedy (D–MA) and president of Casa de Maryland, an illegal immigrant rights group—is a study in statistical manipulation and deceit. Perez makes no mention, for example, of DOJ’s approval of Georgia’s voter ID law, nor does he explain how the Texas law is so different from Georgia’s law that an objection is justified.
DOJ precleared Georgia’s law in 2005 because it was not discriminatory. That judgment has proven to be correct, since the turnout of minority voters in Georgia has gone up dramatically since the implementation of the law. And a lawsuit filed under the Voting Rights Act by the ACLU and the NAACP was also thrown out because a federal judge found that the law was not discriminatory. According to official figures from the Georgia Secretary of State, in the 2008 election, Hispanic voter turnout increased 140 percent over 2004 (when there was no photo ID law in place), while the turnout of black voters went up 42 percent. In the 2010 midterm election, the turnout of Hispanic voters went up 66.5 percent over 2006, while the turnout of black voters increased 44.7 percent. By contrast, the turnout of white voters only increased 8 percent in 2008 and 11.7 percent in 2010.
Perez notes that Texas did not submit any evidence of impersonation fraud to justify the ID law. But there is no such requirement under Section 5. In fact, when it upheld Indiana’s photo ID law as constitutional, the Supreme Court already determined that states have a legitimate and rational interest in protecting the security of elections as well as upholding public confidence in the election process. Furthermore, Perez’s statement ignores the fact that ID requirements can also prevent voting under fictitious voter registrations, voting under the names of dead voters, or voting by noncitizens, individuals registered in other states, or those in the country illegally.
The Justice Department also plays a statistical trick with the data, just as it did when it objected to South Carolina’s voter ID law, in order to make insignificant discrepancies look very large. Keep in mind that the Census shows that the Hispanic population in Texas is 37.6 percent, although only 21.8 percent of the registered voters in Texas are Hispanic. This is no doubt due in part to the very low citizenship rate of Hispanics in the state, i.e., the Hispanic population in Texas includes a substantial number of legal and illegal immigrants.
Texas submitted at least one set of data in September 2011 comparing its registered voter list of 12.7 million people to its driver’s license list maintained by the Texas Department of Public Safety. According to DOJ, 6.3 percent of registered Hispanics don’t have a driver’s license, versus 4.3 percent of non-Hispanics. This is only a 2 percentage point difference, yet DOJ extrapolates that to mean that a “Hispanic voter is 46.5 percent more likely than a non-Hispanic voter to lack” an ID.
The very same Texas data shows that almost three times as many non-Hispanic registered voters are without an ID, so the new ID requirement will have a greater effect on whites and other non-Hispanics. DOJ ignores this fact. And we don’t know how many of these individuals who supposedly don’t have a driver’s license have one of the other forms of ID acceptable under Texas law, such as a passport, a gun permit, a military ID, or a citizenship certification.
This amounts to statistical manipulation by the Justice Department because the smaller the numbers you are using, the larger a slight difference appears. Try reporting the percentages from the opposite perspective. Take the very same numbers used by DOJ but change them to refer to the number of Hispanics and non-Hispanics who have a Texas driver’s license. Under the DOJ scenario, if 6.3 percent of registered Hispanics don’t have an ID, then 93.7 percent of Hispanics do have an ID. If 4.3 percent of non-Hispanics don’t have an ID, then 95.7 percent of non-Hispanics do have ID. When you calculate the difference in likelihood of having an ID, just like DOJ did with the first set of numbers, that difference means that “a non-Hispanic registered voter is only 2 percent more likely than a Hispanic voter to have an ID.”
That supposedly profound difference of almost 50 percent cited by DOJ almost entirely disappears. Even a second set of data from Texas that shows a slightly large differential is still not significant. And as indicated earlier, there is no mention of the fact that Hispanic turnout in states such as Georgia has gone up dramatically since its voter ID law was implemented. That is a very inconvenient fact for those engaging more in politics than law at DOJ.
Assistant Attorney General Perez and the lawyers running the Voting Section under his direction seem incapable of an unbiased review of voter ID laws. In addition to the Obama political appointees like Perez, many of the new lawyers hired into the career ranks, including the two new deputy chiefs of the Voting Section, all came from liberal advocacy organizations like the ACLU’s Voting Rights Project and the NAACP Legal Defense Fund—which have vigorously fought and litigated against voter ID.
Texas, just like South Carolina, will have to get this decision overturned by a federal court in the District of Columbia, after a lot of wasted time and money. Given the predominantly liberal makeup of the federal court, the state may have to go all the way to the Supreme Court, just like Indiana did to get its voter ID laws approved and implemented. But this decision also is just one more example of why Section 5 of the Voting Rights Act—the special provision of the law that gives the Justice Department such authority over Texas and a few other states—is unconstitutional and ready for the dustbin of history.
Neither Texas nor South Carolina deserves to be in the equivalent of federal receivership 47 years after the Voting Rights Act was passed—particularly when you have a Justice Department where politics, not justice, drives law enforcement.