Texas Motion to Dismiss in Voter ID Case

October 26th, 2013

The indispensable Texas Redistricting Blog posts Texas’s motion to dismiss in the Voter ID case currently underway. Here is a summary of Texas’s arguments.

First, merely placing a “burden” on voting is not denying the right:

First, a requirement to obtain and present photo identification does not even qualify as a “denial” or “abridgment” of the right to vote, because anyone who lacks photo identification can get an election-identification certificate that the State offers free of charge.

The state argues that obtaining voter ID is no more a burden than registering to vote in the first place.

Every jurisdiction regulates voting in ways that impose burdens and inconveniences on the electorate. Most States, for example, require voters to register and travel to a polling place to cast their ballots. These laws undoubtedly cause people to choose not to vote, because for many voters the burdens of registering or traveling outweigh the benefits of casting a ballot. But these laws do not “den[y]” or “abridg[e]” the right to vote of those who make that choice. Citizens who are capable of complying with the requirements for voting, but choose not to do so because they would rather spend their limited time and resources on other endeavors, have not had their right to vote “deni[ed] or “abridg[ed].”

Laws requiring voters to present photo identification are no more a “denial” or “abridgment” of the right to vote than laws that require voter registration or in- person voting at polling stations. The Supreme Court specifically held in Crawford that the inconvenience associated with obtaining photo identification is no more significant than “the usual burdens of voting.”

In response to the argument that minorities lack access to motor vehicles, and can’t drive to obtain the ID, the state responds that the same argument would apply to in-person voting:

The only way that the plaintiffs can reconcile their argument with Crawford is to acknowledge that the “usual burdens of voting”—such as registering and traveling to the polls—also constitute a “denial” or “abridgement” of the right to vote under section 2. But on this reasoning, the plaintiffs would have to concede that laws requiring in-person voting at polling stations violate section 2 because minorities disproportionately lack access to motor vehicles. See DOJ Compl. ¶¶ 14, 52, 56. Surely the Attorney General does not believe that the Voting Rights Act requires every State to abolish in-person voting and allow everyone to vote by mail, as Oregon has done. But that result logically follows from the Attorney General’s contention that lack of access to motor vehicles among racial minorities prohibits Texas from enacting a voter-identification law. See id.

Second, Texas rejects a “disparate impact” theory of Section 2:

Second, section 2 prohibits only laws that “result[] in a denial or abridgement of the right . . . to vote on account of race or color,” or “because” of membership in a language-minority group. See 42 U.S.C. § 1973(a) (emphasis added); id. § 1973b(f)(2) (emphasis added). Section 2 does not prohibit laws with a mere disparate impact on members of a particular race, and the plaintiffs’ disparate- impact theory contradicts the statutory language as well as numerous cases rejecting section 2 challenges to voting laws that disproportionately affect racial and language minorities.

Texas limits the scope of Section 2 violations to Katzenbach v. South Carolina, which requires a racially discriminatory intent.

This is not to say that a voter-identification law can never implicate section 2. Section 2 would, for example, prohibit racially biased enforcement of the law that denied minorities the right to vote on account of or because of their race. South Carolina v. Katzenbach, 383 U.S. 301 (1966). The plaintiffs do not allege that Senate Bill 14 will be enforced in such a racially discriminatory manner. Their allegations, even if true, show only that Senate Bill 14 may have a disparate impact on minorities, and that is not sufficient to state a claim on which relief may be granted.

Third, citing Inter-Tribal Council, Texas asserts the power of the state to establish voter qualifications, and in fact the challenger’s argument unconstitutionally impinges on the state’s prerogative.

Third, the States hold a constitutionally protected prerogative to establish voter qualifications in state and federal elections, so long as they do not violate the specific restrictions imposed by the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. See U.S. CONST. art. I, § 2, cl. 1; U.S. CONST. amend XIV, § 2; Inter Tribal Council, 133 S. Ct. at 2253-54. The plaintiffs’ construction of section 2 violates the Constitution by prohibiting States from requiring photo identification to vote. At the very least, the plaintiffs’ interpretation of section 2 raises serious constitutional questions and must be rejected under the canon of constitutional doubt.