A voter shows his photo identification to an election official at an early voting polling site, in Austin, Texas, Feb. 26, 2014. In elections that begin next week, voters in 10 states will be required to present photo identification before casting ballots - the first major test of voter ID laws after years of legal challenges arguing that the measures are designed to suppress voting.
Eric Gay/AP

Sky-high stakes in Texas voter ID trial

Updated

For students at Prairie View A&M, a historically black university about an hour’s drive from Houston, the right to vote has never come easy.

In the early 1970s—soon after 18-, 19-, and 20-year-olds gained the franchise—the Waller County voting registrar began requiring that students answer questions about their employment status, property ownership, and other issues before they could be added to the rolls. He was stopped by a federal court, in a key ruling for student voting rights. A few years later, local officials tried to move school-board elections from April to August, making it harder for Prairie View students to vote—a scheme that was blocked by the Justice Department. Then in 2004, the local prosecutor sent a letter to election administrators saying Prairie View students weren’t automatically eligible to vote at their college address, and threatening the possibility of arrest, before backing down amid an outcry. That same year, the county tried to cut early voting hours on campus—again, it was stopped by the federal government. And in 2008, the county acknowledged in a settlement with the Bush Justice Department that it had rejected voter registration applications in violation of federal voting law, primarily affecting Prairie View students.

Now, there’s a new threat: Texas’s strict voter ID law, which is being challenged by the U.S. Justice Department and civil rights groups in a major voting rights case set to go before U.S. District Court Judge Nelva Gonzales Ramos Tuesday in a sleepy federal building in Corpus Christi. The measure has already been struck down as racially discriminatory, but it went into effect all the same last June after the Supreme Court weakened the Voting Rights Act (VRA).

Imani Clark, an African-American Prairie View student and a plaintiff in the case, voted in the November 2012 election using her student ID. But the ID law that has since gone into effect bars student IDs, and Clark, who doesn’t drive, lacks any of the forms of identification allowed under the measure, known as SB 14.

At stake in the case is access to the ballot for hundreds of thousands of Texans—disproportionately minorities or students or both, like Clark—who don’t have acceptable ID. That means it could play a role in the state’s heated race for governor, in which Democratic State Sen. Wendy Davis will need a massive turnout from non-white and young voters to have even an outside shot against Republican Attorney General Greg Abbott—whose office is defending the law in court. Longer term, a ruling upholding the law figures to hugely complicate an aggressive effort by Democrats and their allies, helped by a demographic wave, to turn this deep-red state purple. 

It will reverberate beyond Texas, too. The Supreme Court affirmed in a 2008 ruling that voter ID laws can be constitutional. But this year, a federal court struck down Wisconsin’s ID measure, finding that it violated the Voting Rights Act’s ban on racial bias in voting (the state is appealing the decision). A similar ruling in Texas could undercut the Republican push for restrictive ID measures across the country.

“This case has huge implications for photo ID measures in other states,” said Ryan Haygood, the director of the voting rights program at the NAACP Legal Defense and Educational Fund, and a lead lawyer for the challengers. “Other states are looking to Texas to see how this photo ID trial plays out.”

Texas’s voter ID measure was passed by Republicans in 2011, and denounced by Attorney General Eric Holder as a “poll tax.” It requires that voters show one of several types of ID, including a driver’s license, passport, or firearms permit. In addition to student IDs, out-of-state driver’s licenses also aren’t allowed.

Texas itself has said nearly 800,000 of its citizens lack a driver’s license. A wealth of evidence suggests that population skews black, Latino, and poor, and Haygood said the plaintiffs would present even more at trial.

For those people, the state has created a nominally free state ID, known as an Election Identification Certificate (EIC). But as the law’s challengers point out, acquiring copies of the underlying documents needed to obtain the EIC isn’t free. Because some counties don’t have an ID-issuing office—which in any case are closed on weekends—some Texans would have to drive over 200 miles round trip to get one. And the state is said to have made little effort to get EICs to people who need them: Just 279 Texans have obtained one since they became available in June of last year, according to the state’s Department of Public Safety.

Texas Republicans have said the law is needed to stop voter fraud, a favorite bete noir of Abbott’s as he campaigns for governor. But they’ve produced almost no cases of fraud that the law would have stopped. 

Finding that the law would impose “strict, unforgiving burdens on the poor,” a federal court in 2012 struck it down under Section 5 of the VRA. That provision of the landmark civil rights law allowed the U.S. government to block laws passed by certain states, mostly in the south, if they might harm racial minorities.

But in June of last year, the Supreme Court neutered Section 5 in Shelby County v. Holder. Hours later, Abbott announced that Texas considered the law back in effect. The U.S. Justice Department and civil rights groups are now suing under Section 2 of the VRA, which bars racial discrimination in voting.

To defend the voter ID law, Texas is making a far-reaching and provocative argument. First, it maintains that the court should adopt a far stricter standard than has generally been used to define what counts as discrimination under the VRA. Judge Gonzales Ramos has already rejected that argument once. But a final ruling that agreed with that approach could significantly narrow the scope of the VRA, rendering it useless for stopping all but the most blatant forms of race bias in voting—as conservatives have long been looking to do.

Texas also claims that the state itself, not its minority population, is the real victim  of discrimination, charging in a recent brief that the U.S. Justice Department “enforces the VRA in a partisan and racially discriminatory manner, particularly with regard to voting laws in Texas.”

The Justice Department’s intervention in the case is part of an aggressive push spearheaded by Holder to protect voting rights. DOJ also is challenging North Carolina’s sweeping voting law passed last year, and it recently filed supportive briefs in the Wisconsin voter ID challenge and in a case challenging Ohio’s cuts to early voting.

The Texas law’s opponents say it’s no coincidence that it was passed just as the state’s soaring Latino population was threatening to flex its electoral muscles. It coincided with a slew of Republican-backed restrictions on voter registration—restrictions that have complicated efforts to run voter registration drives, which in Texas have often focused on Latinos. 

But to get the law struck down under Section 2, the challengers will need to show not just that the law hits minorities hardest—something Texas doesn’t dispute—but that it hits them hardest because of how the ID requirement interacts with a history of socio-economic discrimination. For instance, they’ll argue, because of that history of discrimination, blacks and Latinos in Texas are today more likely to be poor and less likely to have a driver’s license than whites. That’s the argument that voting rights advocates made successfully in Wisconsin in April when they convinced a federal judge to strike down that state’s voter ID law.

“Texas has had a very long history of discrimination in voting, and that has real modern day consequences for people of color,” said Haygood, previewing the argument. “People of color are disproportionately poor, disproportionately without transportation, under-educated, left behind in housing and education and health care. And all those socio-economic disparities exacerbate the real impact of Texas’s photo ID law.”

In essence, then, Judge Gonzales Ramos, an Obama appointee, is being asked not just to rule on a high-stakes issue, but to answer a profound and controversial question: How much of today’s racial inequality is the result of past discrimination?

The trial is expected to last two to three weeks.

The Daily Rundown, 9/4/14, 9:52 AM ET

Federal trial begins in Texas voter ID suit

The Justice Department is using Texas’ tough voter ID laws as a key test case of its efforts to roll back new restrictions on voting rights. Msnbc.com’s Zachary Roth discusses.

Eric Holder, Greg Abbott, Justice Department, Latino Voters, NAACP, Texas, Voter Id and Wendy Davis

Sky-high stakes in Texas voter ID trial

Updated