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.