Holder Tangles with Texas
DOJ’s case distorts the effect of voter-ID laws and misinterprets the Voting Rights Act.


Hans A. von Spakovsky

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).