Messing with Texas and Deceiving the Public

Obama administration hides the fact that more whites would be affected by the state's voter ID law.

Further burnishing his reputation as one of the most politically partisan U.S. Attorney Generals in the history of the republic, Eric Holder has had the Department of Justice (DOJ) file a complaint rejecting Texas's voter identification law under Section 5 of the Voting Rights Act, claiming its implementation "disproportionately harms" Hispanic voters. The move is virtually identical to the DOJ's rejection of a voter ID-law passed in South Carolina that federal officials contend adversely affects black voters. Both states have filed suits in U.S. District Court in Washington. But reality suggests that neither case will be resolved before the 2012 election.

Why? Statistics. The DOJ's complaint is based on what the Wall Street Journal describes as a "mind-numbing and arcane discussion of identification 'datasets' used by the state." Last September, Texas produced one set of stats comparing its voter registration list of 12.7 million people to the driver's license and photo ID lists maintained by its Department of Public Safety (identification for voting in Texas includes a state-issued driver’s license or identification card, a military photo ID, a passport, a U.S. citizenship certificate with a photo, or a concealed-carry handgun license). It did so based on a request from the DOJ to find out how many Hispanic voters do not have photo ID. Yet even as it complied, Texas told the DOJ that such data was not collected.

Yet the DOJ persisted, and based on data released in September, concluded that 6.3 percent of registered Hispanics don’t have a driver’s license or state-issued ID, versus 4.3 percent of non-Hispanics. Incredibly, the DOJ contended the two percentage point difference amounts to a 46.5 percent chance a Hispanic voter is more likely than a non-Hispanic voter to lack identification.

The Heritage Foundation reveals the manipulation, first noting that three times as many non-Hispanic voters lack an ID, meaning the law would have an even larger "disproportionate" effect on whites and other non-Hispanics--a fact the DOJ completely ignores. Furthermore, they note using smaller numbers makes the disproportion look larger. If 6.3 percent of Hispanics and 4.3 percent of non-Hispanics don't have drivers' licenses, that means that 93.7 percent and 95.7 percent of Hispanics and non-Hispanics respectively do. Using the same DOJ parameters to calculate the numbers, the supposed disparity between the two groups is reduced to 2 percent, not the 46.5 percent the DOJ is using to pursue its case.

Undeterred, the DOJ forced Texas to produce another set of numbers in January. The new set of numbers showed that 4.9 percent of non-Hispanic voters lacked a driver's license or other state-issued ID, as compared with 10.8 percent of Hispanic voters. The new disparity of 5.9 percent led the DOJ to conclude that Hispanics were 120 percent more likely to lack such identification than non-Hispanics. Adding to the absurdity of the DOJ's position is the fact that the voting database in Texas contains no racial information, that Hispanics have only been able to self-identify as such since 2009, and that the state cannot distinguish between certain surnames, that might be Italian or Hispanic.

Furthermore, prior to the DOJ's finding, Texas warned the Department that the two sets of data were not comparable. "The data [DOJ] demanded came from matching two separate data sets never designed to be matched, and their agency was warned that matches from these data sets would be misleading," Texas Secretary of State Hope Andrade said in a statement.

Thomas Perez, head of the Justice Department’s civil rights division remained unmoved. “Even using the data most favorable to the state, Hispanics disproportionately lack either a driver’s license or a personal identification card,” he wrote in a letter to Keith Ingram, director of elections for the Texas secretary of state. Yet the state has offered to mitigate any impact the law might have, and supply free ID cards to voters who lack them. The DOJ rejected that idea, contending that travel distance, limited hours of operation for state offices, and the the cost of obtaining documentation, such as birth certification or other forms of ID necessary to procure voter ID cards, was an undue burden. Furthermore, the DOJ "declined to offer an opinion" as to whether the data from September or January were "more accurate," a tactic likely implemented to make adjudication in this case take longer than necessary.

The DOJ has more clout than usual in this case. Section 5 of the 1965 Voting Rights Act holds that certain jurisdictions with a history of discriminating against minority voters must submit changes to their election laws to the Justice Department for "preclearance." The constitutionally of the act was challenged and upheld by an 8-1 Supreme Court vote in 2009. Texas's history of discrimination goes back to its entry into the union as a slave state and proceeds through four court cases filed against the state in the early part of the 20th century. Yet Texas and other states remain beholden to the DOJ, 47 years after the passage of the act. Moreover, there is no indication as to how they can remove themselves from the restriction that essentially holds the state guilty for acts of segregation--apparently in perpetuity--irrespective of how long ago those acts were committed.

Yet the DOJ is on tenuous ground. In April of 2009, the United States Supreme Court ruled 6-3 that an Indiana voter-identification law was not unconstitutional, that the state had “valid interest” in improving election procedures and/or deterring fraud, and that the ID requirement imposes no "undue burden" on the aged, the poor or minorities. Writing for the majority, liberal Justice John Paul Stevens concluded that "there is no question about the legitimacy or importance of the state's interest in counting only the votes of eligible voters."

At the time, Indiana's law was considered the strictest in the country. Currently 31 states have voter ID laws, passed by legislatures under both Democrat and Republican control. Moreover, the Justice Department itself "pre-cleared" a Georgia voter ID law in 2005. Ironically, that law resulted in an increase in minority turnout at the polls. Hispanic and black turnout in the 2008 election was 140 percent and 42 percent higher, respectively, than it was in the 2004 election.

Since those decisions undercut both the legality and credibility of the DOJ's efforts in both South Carolina and Texas, one is left with progressive politics as the prime mover here. Thus, the reactions by those on the left are predictable. “Texas’s voter ID law would prevent countless Latinos, African Americans, elderly citizens and others from casting their ballot,” said Katie O’Connor, a staff lawyer with the ACLU's Voting Rights Project. “We’re pleased the Department of Justice has recognized the harms this discriminatory law would have on people’s fundamental right to vote.” NAACP President Benjamin Todd Jealous echoed that sentiment, contending that “the integrity of our election process remains intact.”

Such notions of "integrity" get a big thumbs down from the American public. A Rasmussen poll reveals that 75 percent of Americans are in favor requiring voters to present a photo-ID prior to casting a ballot. That reality likely reflects the realization that photo-ID has become a prerequisite for conducting a substantial number of transactions in modern-day America, most of which are far less critical than choosing elected representatives. Yet progressives such as DNC Chairwomen Debbie Wasserman Schultz continue to liken such a common sense provision to Jim Crow segregation laws, and Attorney General Holder contends that "in jurisdictions across the country--both overt and subtle forms of discrimination remain all too common--and have not yet been relegated to the pages of history."

Texas Governor Rick Perry undercuts such odious contentions. "Texas has a responsibility to ensure elections are fair, beyond reproach and accurately reflect the will of voters," he said in a released statement. "The DOJ has no valid reason for rejecting this important law, which requires nothing more extensive than the type of photo identification necessary to receive a library card or board an airplane. Their denial is yet another example of the Obama Administration's continuing and pervasive federal overreach."

The latest video from conservative gadfly James O’Keefe undercuts the other progressive shibboleth: the contention that voter fraud is virtually non-existent. An agent for the film-maker showed up at various voting centers in Vermont, giving workers a different name at each location. In each location, he is given a ballot without showing an ID. A previously released O’Keefe video revealed voter fraud in New Hampshire--fraud that may have been the catalyst for the state senate passing a voter ID law, currently awaiting approval in the state's House of Representatives. "Voters are rightly outraged by the reports of voter fraud during our First-in-the-Nation Primary," said Wayne MacDonald, chairman of the Republican State Committee. State Sen. Ray White (R-Bedford), who supports the bill, went further. "Voting is a precious commodity," he said. "People get excited to vote when they know their vote counts. People get discouraged if they think voter fraud will cancel their vote."

Unfortunately, the voters of Texas and South Carolina will likely be facing discouragement in November. Regardless of the way the U.S. District Court in Washington rules, it is virtually certain the losing side will file an appeal to the U.S. Supreme Court. As the Wall Street Journal sarcastically notes, when one "crosses lawyers with statisticians" an "endless morass" is produced. A morass that will almost certainly make a final ruling in both this case and the one from South Carolina impossible to reach before the 2012 election.

Given the Supreme Court's clear-cut decision in the Indiana case, it is precisely this delay that may be the most compelling factor for the DOJ. For progressives in general, their arguments against voter ID illuminate the utter bankruptcy of an ideology where something as intrinsically commonsensical as protecting the integrity of elections for everyone, takes a back seat to the contemptible urge to win by an election means necessary. If a bedrock principle of our democratic republic is undermined in the process? The ends justify the means.

For Attorney General Eric Holder, who long ago abandoned any pretense of constitutional fealty or racial even-handedness, it is nothing more than business--Chicago-style--as usual.

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