Voter ID and Preclearance: What Does the DOJ Letter Mean?

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As Michael Li summarized in his post earlier this week, the Department of Justice (“DOJ”) refused to grant preclearance to several sections of Senate Bill 14 (“SB14”) under the Voting Rights Act (the “Act”).  SB14 amends the Texas Transportation Code and the Texas Election Code, setting up obstacles for voters to reach the polls and cast ballots.  Last week, we characterized the bill as a poll tax.  For its part, DOJ refused to grant preclearance because it was unable “to determine that the proposed changes [from SB 14]have neither the purpose nor will have the effect of denying or abridging the right to vote on account of race, color or membership in a language minority group.”  Here, we outline the reasons that the new Texas law has a retrogressive effect on minority voting and likely reflects discriminatory intent; explain what preclearance is; and summarize the possible next steps.  As we reported last week, on September 14, a collaboration of the Brennan Center for Justice and the Lawyers' Committee for Civil Rights Under Law, on behalf of the Texas State Conference of the NAACP, (the “Brennan Center”) submitted a letter or “Comment” to the Civil Rights Division of the Department of Justice, objecting to SB14.  Their core argument is that SB14 “will disproportionately impact African-American and Latino citizens and have a retrogressive effect on minority voting strength across the State of Texas.”  While the law does not discriminate on its face, it does, as the Brennan Center Comment states, impose on these groups unique financial and logistical burdens with the legislative history of the bill pointing to discriminatory intent in its passage.

Below is an outline of the objections by the Brennan Center concerning retrogressive effect and discriminatory intent stemming from and surrounding SB14:

As to retrogressive effect, the Brennan Center made this argument:

• Senate Bill 14's photo identification requirements for in-person voting will have a retrogressive effect on African-American and Latino citizens' ability to vote for the following reasons:

o Available data show that African-American and Latino citizens are less likely than white citizens to possess a form of identification required by Senate Bill 14.

o National data demonstrate the disproportionate impact of photo ID requirements.

o Senate Bill 14's limited list of acceptable forms of photo ID disadvantages African-American voters by excluding student IDs but including concealed handgun licenses.

o Texas's African-American and Latino citizens face greater financial and logistical barriers than white citizens in obtaining a form of photo identification required by Senate Bill 14.

o The cost of obtaining the necessary identification will disproportionately limit minorities' ability to obtain such identification.

o African-American and Latino citizens have less access to both public transportation and private vehicles than whites and therefore face greater obstacles in obtaining photo identification from DPS's Driver's License Offices.

o Minority citizens must travel farther distances than whites to obtain photo identification.

o Senate Bill 14 grants broad discretion to polling place officials and thereby creates new opportunities for discrimination against minority voters.

o Senate Bill 14's voter education and outreach program is less likely to reach Texas's African-American and Latino citizens since they have lower literacy rates and less internet access than whites.

As to discriminatory intent, the Brennan Center made this argument:

• The Legislature's failure to take precautions against minority disenfranchisement in Senate Bill 14, despite its knowledge that the new photo identification requirements would disproportionately burden minority voters, suggests that the law may have been enacted for a discriminatory purpose.

o The Texas Legislature was presented with ample evidence of the discriminatory effects that Senate Bill 14 would have on minority voters prior to passed the bill.

o The Legislature's proffered justification for Senate Bill 14, namely to prevent voter fraud, is pretextual and lacks substantive support in the legislative record.

In short, they knew it would create hardships, they knew they had no evidence to support their contentions of voter fraud, and they passed the law anyway.

As Li reported earlier this week, in its letter refusing preclearance, DOJ asked for the following information:

• The voter education program the state will use to educate citizens about new photo ID requirements.

• The efforts the state will undertake to train election officials in the new rules, including copies of all materials that will be used to provide training and to implement the program.

• The way the state will resolve discrepancies between information on a photo ID and voter rolls.

• The locations, dates, and times where free voter certificates may be obtained, including information on the means used to inform the public about the availability of such certificates, whether transportation and other assistance will be provided to individuals seeking a certificate.

• The proposed guidelines and administrative rules that will be used to implement the statute, including the process that will be used to get input on the proposed rules.

• The county-by-county breakdown by race and Spanish surname of the 605,576 registered voters in Texas that the state says do not have a driver's license or other DPS ID.

• The efforts the state will undertake to inform voters without a photo ID about the availability of a free photo voter ID.

What is Section 5 of the Voting Rights Act and what is Preclearance?

Section 5 of the Act requires that before certain states can modify their election practices or procedures, they must submit the proposed changes for review or “preclearance.”  Preclearance happens in one of two ways.  The state at issue must submit its proposed changes to the U.S. Attorney General, and Attorney General will make an administrative determination as to whether the changes violate the Act; or the state can seek a declaratory judgment before a three-judge panel in federal district court in the District of Columbia that the new election laws do not violate the Act.  In the latter case, the plaintiff is the state, and the defendant is the United States or the Attorney General.  

States that are required to seek preclearance are states that had a history of discrimination against minorities, particularly in making it more difficult or even virtually impossible for them to vote.  When the Act first became law, Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia were required to submit to preclearance.  Texas (along with Alaska and Arizona) was added to this list in 1972.  (Other states, including California, Florida, Michigan, New York, New Hampshire, North Carolina, and South Dakota, while not required as states to seek preclearance, contain counties or townships that are subject to preclearance mandates).

What is the process?  What remedies are available?

The burden:  A state has the burden of proof in showing compliance with the Act, whether it seeks approval from the Attorney General administratively, or whether it seeks declaratory judgment from the three-judge panel in federal court in D.C.  To meet its burden, the state must show that the new law “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color or [membership in a language minority group].”  

Next steps: Once the district court rules, if any party wishes to appeal, that appeal goes directly to the U.S. Supreme Court, skipping the intermediate appellate court.  On the other hand, in the administrative process, if the Attorney General objects to the law, it cannot be enforced.  If the state is unhappy with the Attorney General's ruling, the state can then go back to the federal court in D.C. to seek a declaratory judgment in its favor under Section 5 of the Act and the case progresses as if no one ever sought administrative review.  

On the other hand, if the Attorney General fails to object or makes a determination that it has no objection to the proposed laws, they can be implemented, and there is no further remedy available under Section 5.  However, the end of Section 5 is not the end of the legal challenge.  

Section 2 of the Act offers a remedy.  The Attorney General could still seek to block the law under Section 2 or other federal law.  Moreover, private parties who have standing – often groups that represent blocs of apparently disenfranchised voters (e.g.: the Brennan Center, the NAACP), or citizens in the affected areas –  can themselves maintain actions claiming violations of Section 2 of the Act, the 14th Amendment to the Constitution (on equal protection grounds), or any other applicable state or federal law.  In this latter instance, those cases would likely be filed in federal district court here in Texas.  

In short, Texas faces an uphill battle in getting these new laws through the review by the Attorney General, and regardless of the result, there is a significant likelihood that either side will push the battle to federal court of one stripe or another.  


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