When is state law not enforceable?
December 28, 2011
Texas awaits DOJ approval for its new voter photo ID law.
The battle over Texas’s controversial new voter identification bill should be over. Instead, it appears to be heating up.
Senate Bill 14 amends the Texas Election Code, requiring voters to present an approved form of photo identification to cast a ballot in state elections. Voters may rely on most forms of commonly-used government-issued photo identification, such as a driver’s license or passport. Voters who are unwilling, or unable, to pay for identification are also covered; the bill creates a new form of identification called an “election identification certificate” which can be obtained at no cost from the Texas Department of Public Safety.
Both the Texas House and Senate approved the bill and its photo identification requirements, following months of heated debate across the state. And, on May 27, Governor Rick Perry signed the bill into law. Notwithstanding any post-enactment court challenges, gubernatorial endorsement is the final step in the legislative process—or at least that’s how things usually work in Texas.
But SB14 is different. Despite obtaining both legislative and executive approval—the only levels of approval normally required when enacting legislation—the photo identification law will not go into effect in 2012 unless it overcomes one final hurdle: federal preclearance.
Passed in 1965 during the Civil Rights Movement, the Voting Rights Act (VRA) was designed to stop discriminatory voting practices like poll taxes and literacy tests. To combat widespread disenfranchisement of black voters, Congress imposed significant federal oversight of elections in states that routinely employed discriminatory voting schemes. These states—known as covered jurisdictions—must obtain federal approval of any significant changes made to their voting laws. Voting changes in covered jurisdictions may not be enforced until this occurs.
Texas became a covered jurisdiction in 1972, and is one of nine states and dozens of smaller subdivisions—primarily counties—currently on the covered jurisdiction list. SB14’s voter identification requirements are just the type of changes that demand federal oversight, so earlier this summer, Texas officials requested federal preclearance from the United States Department of Justice (DOJ).
In a June 25 letter to the DOJ requesting preclearance, Texas Secretary of State Hope Andrade argues that the Texas law is designed “to ensure the integrity of the voting process by allowing registered voters to vote, enhancing detection of ineligible voters, and deterring ineligible voters from voting.” She also states that the law “does not have the intent and will not have the effect of diluting the voting strength of any racial or linguistic minority.”
Groups opposed to the new law remain unconvinced and are urging the DOJ to reject the law. The Brennan Center for Justice submitted a letter to the DOJ asserting that Texas has failed to demonstrate that the law was not motivated by a discriminatory purpose and does not have discriminatory effects, as the VRA requires. A coalition of organizations led by the Advancement Project penned their own letter chastising Texas for relying solely on its “self-serving” claim that the law will not dilute minority voting strength “[i]nstead of providing any proof whatsoever that SB14 was enacted for a non-discriminatory reason.” The Center suggests that the photo identification requirements “will disproportionately impact African-American and Latino citizens and have a retrogressive effect on minority voting strength across the State of Texas.”
The DOJ has already delayed its decision and requested more information from state officials. Specifically, the DOJ has asked Texas officials to provide details about the 605,576 registered voters in Texas who currently lack a valid form of photo identification, including an estimated breakdown by race. This information will be compared with similar data—also requested from the state—about voters who do possess valid forms of identification to determine whether the photo identification requirements will negatively affect voter participation among minority groups.
The photo identification provision is set to go into effect on January 1, 2012, but without federal preclearance, Texas will be unable to enforce the law. The DOJ has sixty days to render its preclearance decision once it receives a response from Texas. This gives Texas officials a small timeframe to compile the data the DOJ requested—data which it is already struggling to obtain. Texas voters are not asked to provide race when registering to vote, so the state may not be able to comply fully with the DOJ’s request.
Texas is in good company as it awaits a decision from the DOJ. Voter identification has been a hot topic across the country following the Supreme Court’s 2008 decision in Crawford v. Marion County Election Board in which the Court upheld Indiana’s voter identification law as a legitimate means to prevent voter fraud. According to the National Conference of State Legislators, 34 states considered legislation this year to either enact new voter identification laws or strengthen existing laws to require photo identification at the polls. Of those 34 states which considered legislation, six—including Texas—enacted new laws.
And Texas is not the only state struggling to overcome the federal preclearance barrier. Alabama and South Carolina are covered jurisdictions under the VRA, and both passed photo identification laws this year which are similar to Texas’s SB14. Enactment of South Carolina’s law—like Texas’s law—is on hold until the state provides the DOJ with more evidence that the changes comply with the VRA.
UPDATE: The Justice Department blocked the South Carolina law citing its disproportionate impact on minority voters. Read more.
Daniel Carrico is a third-year law student at William & Mary.
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