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Taking Voter ID to Court

While voter ID legislation will likely pass the House, Democrats can use debate to help to set up the case for litigation
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The Republicans in Texas have been trying for years to pass voter ID legislation—and today they very likely will be almost done. The measure, which requires voters to show photo identification before casting a ballot in person, has already passed through the Senate and today, with a Republican supermajority controlling the lower chamber, it almost definitely will pass the House. Given that Gov. Perry has been itching to pass this thing for years, the bill should fly into law faster than a School House Rock song. The Democrats’ long battle to defeat the measure is seemingly over.

Or is it? While the Democrats have little chance of stopping the bill from getting the votes to pass, this particular piece of legislation may very well be tied up in lawsuits for years. And today, Democrats can lay some of the groundwork for those future cases.

As I wrote when the Senate passed this piece of legislation, this particular voter ID bill would be the most stringent in the nation—more stringent, even, than the Indiana bill that it’s based on. Currently, it only allows five forms of photo identification and only exempts people over 70. The Indiana law allows student IDs from state universities to count—our version doesn’t. And while the Indiana version gives folks missing suitable ID ten days after they voted to bring it in, the Texas version only gives voters six days. Many worry the bill would suppress voter turnout, particularly among the poor and black and Latino voters. In fact, the legislation is so dramatic that after it passed the Senate, I called Wendy Weiser, the director of Brennan Center’s Democracy Program. In addition to having one of the better titles I’ve heard, Weiser is an expert on voting rights. 

Weiser said Texas was going to have a tough time implementing the law—despite the widespread legislative support. That’s because our fine state is one of seven singled out in the in the Voting Rights Act Section 5. Thanks to our history of discriminatory election law—poll taxes, literacy tests, etc. the Voting Rights Act requires that we get the okay from the Department of Justice or the courts before implementing certain changes to our election law, a process known as “preclearance.”

Because of its stringency, this bill will undoubtedly get a close look—and Weiser said that the legislative debate around the bill can play a role in determining whether or not it violatese the Voting Rights Act. For instance, if the Legislature rejects amendments that would make it easier for certain groups to obtain IDs, that could send up red flags for the Department of Justice. The legislative debate, Weiser said, “is relevant the extent to which the state takes proactive efforts to make sure that law is not excluding groups.” 

Both parties see enormous political implications in the bill. Democrats have fought against it long and hard, in part out of concern that it would particularly suppress Democratic voter turnout. Meanwhile, Republicans expect the bill will help their electoral odds. Consider that the one exempted group in the bill—senior citizens—is a group more likely to vote Republican. 

As the House debates the bill today, Democrats have a shot at offering amendment after amendment that would water down the bill—free IDs for anyone or offering affadavits in place of the ID itself. Such measures failed the Senate and will likely fail the House as well. But they will help the Democrats establish a case against the measure. 

Weiser didn’t think Texas-style voter ID law would be an easy sell to the Justice Department. “Onerous ID requirements is something the Department has looked at closely,” she told me. “I don’t think this will be an essay pass through the preclearance process.”