Holder Tangles with Texas

by Hans A. von Spakovsky
DOJ’s case distorts the effect of voter-ID laws and misinterprets the Voting Rights Act.

Hillary Clinton is not alone. This week former secretary of state Colin Powell and ABC’s Cokie Roberts chimed in to agree that asking people to prove they are who they say they are when they show up to vote is completely beyond the pale. Then the Department of Justice joined in, launching a lawsuit against Texas over its voter-ID law last Thursday.

Colin Powell is not known for his expertise in this area. But that didn’t stop him from saying that requirements like voter ID “are being put in place to slow the process down and make it likely that fewer Hispanics and African Americans might vote.” Of course, turnout numbers from voter-ID states such as Georgia and Indiana show that requiring voter ID does not keep Hispanics, blacks, or anyone else out of the polls.

Literally years of local, state, and federal elections demonstrate that the “sky is falling” claims about voter suppression are complete nonsense. Contrary to General Powell’s assertion that voter ID will “slow the process down,” election officials have told me that voter-ID requirements speed up the process at polling locations because it makes it much easier to find the voter’s name on the voter-registration list.

As a former chairman of the Joint Chiefs of Staff and a former secretary of state, General Powell must be aware that individuals wishing to enter the Pentagon must present two forms of government-issued ID (including one with a photo), and individuals wishing to enter the State Department must also present a government-issued photo ID. It must not slow down the entry process too badly, as he never changed that policy.

General Powell claims that there is no voter fraud. But John Fund and I documented cases of fraud from all over the country in last year’s Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk. Christian Adams, my former Justice Department colleague, also provides a handy reference list of more than two dozen recent cases of election fraud.

Cokie Roberts claimed on ABC’s This Week that what is going on with voting rights “is downright evil because it is something that really needs to keep going forward not backward.” What is downright evil is the way opponents of voter ID (which is supported by a majority of Americans of all races and nationalities) mischaracterize election-integrity reforms as the return of Jim Crow. This is playing the race card for political advantage at its worst. In 50 years we have gone from the great Martin Luther King Jr. calling for equal rights on the steps of the Lincoln Memorial to race hustler Al Sharpton, from the same place and commemorating King’s speech, haranguing the crowd about “tea baggers.” What more needs to be said about that?

Roberts criticized the Supreme Court’s decision in the Shelby County case, which struck down part of the 1965 Voting Rights Act, saying it went backward, not forward. Just the opposite is the case: The Court threw out an “emergency provision” that Congress had renewed in 2006, relying on 40-year-old statistics. It is Congress, and opponents of the Shelby decision, who have refused to acknowledge current conditions and how much the South has changed.

But history does stand still in the Holder Justice Department. On Thursday its Civil Rights Division filed a lawsuit in federal court in Corpus Christi claiming that the Texas voter-ID law discriminates against black and Hispanic voters, thereby violating Section 2 of the Voting Rights Act. The Division wants the court to issue an injunction against the law and require Texas to submit all future voting changes for preclearance under Section 3(c), which allows a court to place a jurisdiction under federal supervision due to repeated violations of the voting guarantees of the Fourteenth or Fifteenth Amendment.

In reading the Division’s complaint, I was reminded of the opening con in the 1973 movie The Sting, because the complaint is filled with the same type of misdirection intended to distract the audience. For example, it outlines the different percentages of black, Hispanic, and white populations in Texas. But it first uses total population, which includes lots of people who aren’t eligible to vote. It then lists voting-age population percentages, which is also a largely useless figure because of the significant number of Hispanics who are not citizens and African Americans who are convicted felons, and, therefore, not eligible to vote. It finally gives the percentages by voting-age members of the franchise, after having confused this issue with information not relevant to the number of individuals affected by a voter-ID law. (This is compounded by its use of surname-analysis to identify Hispanics, a notoriously inaccurate analysis tool.)

The complaint lists the poverty levels, income data, and car-ownership rates of blacks and Hispanics in comparison with whites. It makes a big deal out of the claim that Hispanics and blacks experience poverty at higher rates than whites, but this is completely irrelevant to the voting discrimination claim in the complaint. Being poor is not a protected class under the Voting Rights Act, and the total number of poor whites in the state is actually larger than the total number of poor Hispanics and blacks. Justice is trying to claim that if a voting law somehow affects poor people more than others (and it has no evidence that is true), because of racially disparate poverty rates, it is voting discrimination and therefore violates Section 2. Holder is trying to bootstrap an unprotected class of voters onto a class of voters protected under the law.

The complaint’s “history of official racial discrimination” that would justify placing the entire state of Texas under preclearance again is a joke: It lists cases from 1927, 1944, 1953, 1996, and 2006. The 2006 case, LULAC v. Perry, was a Supreme Court decision that found one congressional district with a majority Hispanic population had been redrawn in a way that did not take into account the differences between two different Hispanic communities, an unprecedented interpretation of Section 2. The list hardly proves that official discrimination is so pervasive across Texas that the state government and every single county need to be put under federal supervision again.

The complaint claims there was “anti-immigrant rhetoric” during the enactment of the voter-ID law. The administration is typically conflating discussion of illegal immigration with legal immigration. The bill is in part intended to prevent voting by illegal aliens, and has nothing to do with naturalized legal immigrants. It is this administration that thwarted states’ efforts in this regard: State voting officials’ requests for access to Homeland Security records to check voter-registration lists for noncitizens are consistently tied up in red tape.

Texas needs to fight this case the same way South Carolina fought Justice over its voter-ID law — and won. And the Texas lawyers should keep one thing in mind: If they come to Washington to meet with the Voting Section lawyers listed on the complaint, they better bring a government-issued photo ID. Without one, they won’t be allowed to enter Justice Department offices. How discriminatory!

— Hans von Spakovsky is a senior legal fellow at the Heritage Foundation, a former Justice Department official, and the co-author of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter Books 2012).