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Judges in Texas Voter ID Case Question State Data on Bias

U.S. judges weighing whether a Texas law on voter photo identification may keep minorities from the polls in November expressed doubts that the state can rely on social-science data to prove the measure won’t result in bias.

Texas, in closing remarks today after a weeklong trial in federal court in Washington, argued that the judges should look at studies of other states that imposed photo ID laws rather than data on Texas voters. The three-judge panel hearing the case honed in on that contention.

“Shouldn’t we rely more on what is in the state of Texas than on generic social-science data?” U.S. District Judge Rosemary Collyer asked John Hughes, a lawyer for the state.

Texas, one of eight states that passed laws last year requiring a photo ID to vote, is seeking court approval of the measure, arguing it’s needed to prevent electoral fraud. The Justice Department, which claims at least 1.4 million residents lack the required identification, says Texas’s rules are the harshest and place a “new and substantial burden” on minorities’ ability to cast a ballot.

Collyer, an appointee of President George W. Bush, said that the panel hopes to issue a decision “in quick order.” Texas told the court earlier that it needed a decision by the end of August for the law to be enforced in the November elections.

Voting Rights

The case marks the first time a federal court will rule on the Obama administration’s efforts to use the Voting Rights Act of 1965 to block a state photo ID law.

Texas is one of 16 jurisdictions with a history of voting rights violations that need approval from the Justice Department or a federal court in Washington to change election procedures.

Texas opted to go to court, suing Attorney General Eric Holder on Jan. 24.

Hughes told the judges that social-science data showing that voter-ID laws didn’t reduce minority turnout in Georgia or Indiana “answers the ultimate question” regarding Hispanics and blacks in Texas.

The state’s data included voting information from the 2008 presidential election and the 2010 midterm elections in Georgia and Indiana. Turnout among minority voters increased after identification laws were enacted, Texas argued in court papers.

Hughes said the department had no answer for this study and that it was “shifting the goal posts” to keep the law from being approved.

Social Science

U.S. District Judge Robert Wilkins asked Hughes whether Texas cited the social-science data in its letter to Attorney General Eric Holder seeking his support for the law.

Hughes said the state didn’t.

“What I’m failing to understand is how the attorney general could be arbitrary or capricious because he didn’t consider an argument that was never made,” said Wilkins, a President Barack Obama appointee.

U.S. Circuit Judge David Tatel, nominated by President Bill Clinton, said the circumstances in Georgia or Indiana may be so different that they don’t “translate equally” into Texas.

Under the law Republican Governor Rick Perry signed last year, voters who arrive at the polls lacking one of the specified forms of state or U.S.-issued photo IDs, would be given a provisional ballot. College or university IDs aren’t among the authorized documents. Permits to carry a concealed handgun are.

Approved ID

Provisional ballots would count only if voters bring an approved ID to the registrar’s office within six days of the election.

The law exempts mail-in ballots and voters with significant disabilities or religious objections to being photographed.

The requirements “entail minor inconveniences on exercising the right to vote,” Texas Attorney General Greg Abbott said in his initial court filing.

“The Obama administration’s challenge to the Texas voter ID law is nothing more than a political charade,” Abbott said in conference calls with reporters today.

Groups that intervened to oppose the law said the costs associated with obtaining identification, along with lengthy distances to public safety offices, would have greater effect on minorities and the elderly.

“This is not a minor burden we’re dealing with,” Ezra Rosenberg, a lawyer for some of the groups, told the court. “It’s going to affect those people who need the protection -- the low-income minorities and the elderly, who fought for this right to vote.”

Increased Burden

The Justice Department, which in December stopped a similar statute in South Carolina, claims the law, officially called Senate Bill 14, or SB14, would increase the burden of casting a ballot in person for more than a million Texas voters.

“The record in this case shows that SB14 would prevent up to 10 percent of voters from voting on election day,” Matthew Colangelo, a Justice Department lawyer, told the judges in his closing argument.

Hispanic registered voters in Texas are from 47 percent to 120 percent more likely to lack the required identification than non-Hispanic voters, the Justice Department said in a letter to the state in March. Hispanics account for 2.81 million of the state’s 13 million registered voters.

Texas called the Justice Department’s estimated number of affected voters “highly-inflated” and accused the department of relying on a database analysis that didn’t examine whether its list included deceased people or those who had moved out of state. They noted that former president George W. Bush was on the list of Texas residents who supposedly didn’t have state ID.

Citizenship Records

Lawyers for Texas said the Justice Department never analyzed whether these potential voters had acceptable federally issued identification such as passports or military or citizenship records.

Texas also said that Stephen Ansolabehere, the Justice Department’s expert witness to assess the effect of the law, found in 2008 that 70 percent of Hispanics and blacks support identification requirements.

Under Section 5 of the Voting Rights Act, the burden is on Texas to show that its law wouldn’t have a “retrogressive effect” on minorities or was enacted without a discriminatory purpose.

Wilkins said there was testimony at trial that some residents must travel more than 100 miles to get to their public safety office. The judge then noted that federal rules restrict subpoenas that require witnesses to travel more than 100 miles.

“How is it unduly burdensome for a subpoena and not unduly burdensome to drive 100 miles to get an ID to vote?” Wilkins asked.

Hughes said that people who live in rural parts of Texas do so by their own choice and driving long distances is a “fact of life.”

The case is Texas v. Holder, 12-00128, U.S. District Court, District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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