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Impending decision by D.C. judge has implications for voter ID in Texas


Though Republican lawmakers remain unswayed by Texas Democrats’ arguments that disenfranchising minority voters should outweigh unsubstantiated fears of polling place voter impersonation — the U.S. Department of Justice, and possibly the courts, will consider those contentions in light of the Voting Rights Act (VRA) before allowing a voter photo identification law to take effect.

That is, unless a U.S. District Court judge in Washington, D.C., issues an opinion — which is expected to come soon — that strikes down the part of the VRA requiring Texas and other states, mainly in the South, to seek federal approval before enacting election laws with the potential to adversely impact representation of racial or ethnic minorities. That includes voter photo ID.

“During one of the telephonic conferences, Judge [John D.] Bates indicated that he would like to have this case settled by the first of April,” said Edward Blum, whose organization Project on Fair Representation is assisting the plaintiffs in Shelby County, Alabama v. Holder. “So we’re all just eagerly awaiting.”

“If the court in Shelby County strikes down either Section 4(b) or Section 5 [of the VRA], and the judge does not stay his opinion, then Texas and all other states subject to Section 5 will no longer be required to preclear,” Blum said. “That doesn’t mean the DOJ doesn’t have the power to come in anywhere and sue a jurisdiction or sue a state under various constitutional statutory provisions to prevent discriminatory election practices from going into or staying in effect.”

Blum’s organization backed a previous challenge to Section 5 brought by a small municipal utility district in Austin. That case made it all the way up to the U.S. Supreme Court; however, justices refrained from addressing the constitutionality of that part of the VRA, deciding in a narrow ruling that the district, because of a clean voting rights record over the past 10 years, could seek to “bail out” of the preclearance requirement — an option that Shelby County, Ala., does not have.

“If Section 5 is struck down, then Texas and the other eight states subject to this provision won’t have to go to D.C. to ask for permission anymore,” Blum said.

Texas’ voter photo ID bill is most often compared to existing laws in Indiana and Georgia, though it’s generally considered tougher than either. The law in Indiana, which is not covered by Section 5, was upheld by the U.S. Supreme Court. The law in Georgia, which is covered by Section 5, was OK’d by the DOJ under the administration of Pres. George W. Bush, amid allegations of partisanship.

Some observers, including an Indiana law expert, believe that Pres. Barack Obama’s DOJ might be inclined to act differently than Bush’s DOJ, especially given the strictness of Texas’ legislation. Read the Texas Independent for previous reporting.

If the voter ID bill becomes law, then Texas would also have the option of bypassing the DOJ in favor of a three-judge panel in D.C. Whether the judicial panel would be more favorable than the DOJ to Texas’ law is up for speculation.

Saying that the DOJ “really should have denied preclearance” to the Georgia law — considering that DOJ staffers’ recommendation to disapprove the law was overruled by White House appointees — election law professor Daniel P. Tokaji said, “I think there’s a very good chance Texas will be denied preclearance if [voter photo ID legislation] becomes law.”

Tokaji is a professor of law at The Ohio State University’s Moritz College of Law. He recently wrote a commentary opposing voter photo ID legislation being considered in Ohio.

The U.S. Supreme Court ruled in support of Indiana’s voter photo ID law largely because opponents were unable to produce sufficient proof of voter disenfranchisement. However, as Tokaji points out, those guidelines are different for a Section 5 preclearance decision.

“In a Section 5 challenge, the covered entity actually has the burden of proving the measure will not have a retrogressive impact on minorities,” he said.

“I think there’s a very strong argument that it would violate Section 5,” Tokaji said.

Blum disagrees, saying courts have approved voter ID laws on multiple occasions. “Truthfully this issue has been settled,” he said.

“What Texas is doing is not out of the ordinary for many states now,” he said.

When asked if the Obama DOJ (or three-judge panel) is likely to approve Texas’ law or not, Blum said, “I would say the probabilities are good that it will.”

Blum did leave open the possibility that the feds may require Texas to tweak the law, though.

“For the most part, the concept Texas legislators have authored has been blessed by the courts,” he said.

However, Blum said it is premature to hypothesize on the DOJ’s inclinations until the judge issues his ruling in Shelby County.

The Shelby County decision will set precedence for future VRA actions, he said.

“If the opinion is upheld by higher and higher courts, it’s over at this point. There will not be any sort of Section 5 issues going forward,” Blum said. “If I lose, then Section 5 is going to be in place at least a year, year-and-a-half, as this goes through the next appellate stage, then eventually on to the Supreme Court.”

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