[Image courtesy of mikanet]
Last Thursday, a three-judge federal court in Washington, DC refused to clear Texas’ new voter ID law under Section 5 of the Voting Rights Act (VRA).
The decision sets up an appeal to the U.S. Supreme Court – though likely not before the 2012 election – during which the constitutionality of Section 5 of the VRA is certain to come under challenge.
The constitutional argument about the VRA has many facets, but the Texas case’s treatment of data about voter ID is as good an example as any of why the Act – and in particular, Section 5 – is generating so much heat lately.
We’ve covered the data issues involved in voter ID many times on this blog – and both sides in the Texas case did the same. For its part, Texas produced an expert who submitted testimony suggesting that 1) a comparison with voting rates in Indiana and Georgia showed that Texas voters (especially minority voters) would not be prevented from voting because of ID and 2) minority voters possess ID at the same rates as all voters. The Justice Department countered with an expert who used matching data to determine that minority voters were more likely to lack the required ID to vote.
Interestingly, the court rejected all of this testimony. Citing methodological flaws (over-reliance on survey research here, under-reliance on relevant data sets there, etc.) the court summarized its own evidentiary findings thusly:
Contrary to Texas’s contentions, nothing in existing social science literature speaks conclusively to the effect of photo ID requirements on voter turnout. Moreover, scant lessons, if any, can be drawn from Indiana and Georgia, largely because [Texas’ law] is more restrictive than the photo ID laws adopted by either of those states. Finally, no party has submitted reliable evidence as to the number of Texas voters who lack photo ID, much less the rate of ID possession among different racial groups. (p. 44)
This is where it got interesting.
Unlike the court challenges in Indiana and Georgia – where the burden of proof was on the plaintiffs – the Texas case required the state to carry the burden of proof that that its ID law would not result in “retrogression” of minority voting rights in violation of the VRA. The court found that Texas had failed to meet that burden:
[R]ecord evidence suggests that SB 14, if implemented, would in fact have a retrogressive effect on Hispanic and African American voters. This conclusion flows from three basic facts: (1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty. Accordingly, [voter ID] will likely “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” (p. 45, citation omitted)
Significantly, the court cited Texas’ own expert testimony (that minority voters were no less likely to possess ID) as evidence that some minority voters lacked ID: “based on Texas’s own evidence, we find that there is a subset of Texas voters who lack  approved ID–again, both state and federal–and that, at minimum, racial minorities are proportionately represented within this subgroup.” (p.46). From there, the court used testimony about the procedure (and costs) for obtaining ID and combined that with census data on poverty to conclude that an ID requirement would fall hard on minority voters and thus violate the VRA.
The Texas case is obviously important in its own right, but it is even more so when compared to other court challenges to voter ID. VRA Section 5’s legal standard (retrogression) and the burden of proof (on the state) may well have been the reason that Texas lost on an evidentiary record that may have been successful under a straight constitutional challenge.
You can bet that this different standard will get lots of airtime on appeal. Texas and other states seeking to strike down Section 5 will argue that the VRA creates a double standard for covered states – while supporters of Section 5 will hail the VRA’s ability to allow courts to block allegedly discriminatory election laws that they otherwise cannot (or will not) touch.
And, for the first time in a long time (if ever), they might both be using the same data to do it.
I’m going to call that progress.