The war over this election’s voting rules is heating up, drawing crowds this week to a closely watched federal court trial in Washington, D.C., where a three-judge panel is hearing arguments for and against a contested Texas voter ID law.
“This is certainly something that is going to have broad reverberations beyond Texas,” said Wendy Weiser, who directs the Democracy Program at New York University School of Law’s Brennan Center for Justice. The center is on the legal team representing Latino and civil rights leaders who have intervened in the case.
Immediately at issue is whether the Texas law discriminates against minority voters by requiring a photo ID at the polls. But the case could reverberate all the way up to the Supreme Court. Texas has also challenged the constitutionality of Section 5 of the 1965 Voting Rights Act, which requires states with a history of discrimination to obtain Justice Department approval before changing their voting rules.
The Texas law took effect in May 2011, but the DOJ declined to preclear it under Section 5, which covers Texas. Attorney General Eric Holder, who recently vowed to aggressively fight restrictive voting laws, argued that the ID law would harm minority voters. The state went to court both to defend its law and to challenge Section 5 as unconstitutional.
In the U.S. District Court trial, which is expected to last through the end of the week, the three-judge panel will consider only the question of whether the Texas law deserves preclearance. The court will only address the constitutional challenge to Section 5 in the event that preclearance is denied.
Testimony so far has mirrored the larger debate over new voting laws that have been enacted around the country during the past 18 months. Since the beginning of 2011, 19 states have passed two dozen laws that impose restrictions, from voter ID and proof-of-citizenship requirements to changes in early voting and registration rules, according to the Brennan Center.
Texas officials and their expert witnesses testifying this week have argued that the state faces problems with voter fraud, that the photo ID requirement is a common-sense fix and that the ID rule would affect fewer than 200,000 voters. Justice Department officials have placed the number of affected voters closer to 1.4 million. The law’s challengers argue that it would discriminate against minority and Latino voters, who tend to disproportionately lack driver’s licenses.
“This is really no different than a poll tax, and that’s what this issue boils down to,” said Trey Martinez Fischer, chairman of the Mexican American Legislative Caucus of the Texas House, which has challenged the ID law alongside the Texas conference of the NAACP.
“The data clearly show that there is not an epidemic of illegal voter impersonation,” continued Fischer, who testified before the three-judge panel Wednesday. “And if that’s the case, we shouldn’t even think about disenfranchising one Texas voter, let alone a million and a half.”
The Texas legal challenge is only one of several voter ID cases pending before the Justice Department and the courts. Other states awaiting Justice Department preclearance for their ID laws include Mississippi and Virginia.
The outcome of this week’s trial could affect how Holder handles those cases, said Bob Kengle, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law, which along with the Brennan Center is representing the state NAACP and MALC in the case.
“How the court looks a this, I think, is certainly important with respect to other Section 5 covered states and how their submissions are going to proceed,” Kengle said.
Looming over this week’s trial is the near-certainty that the Supreme Court will be asked to review the constitutionality of Section 5, which civil rights advocates regard as a centerpiece of the Voting Rights Act. Some court watchers predict that the three-judge panel, which includes two Democratic and one Republican appointee, appears poised to reject the Texas law, setting the stage for the district court to take up the state’s Section 5 challenge.
Even if the broader Section 5 challenge does not move forward, other states and jurisdictions have lodged similar suits. A Shelby County, Ala., lawsuit working its way through the lower courts could be the first to reach the high court, Kengle said: “A lot of observers believe that that is going to be the case in which the court decides the constitutionality of Section 5.”
The questions on the table in federal court this week are the same facing all states with contested voter ID laws, Weiser said, including how many eligible citizens would be excluded and whether minorities would be harmed. She concurred that the high court will probably have to settle the question: “Section 5 will most certainly be headed to the Supreme Court this year in one form or another.”
Senate Minority Leader Mitch McConnell, R-Ky., carries a musket on stage as he speaks during the American Conservative Union's Conservative Political Action Conference (CPAC) at National Harbor, Md., on Thursday March 6, 2014.