Tuesday, October 28, 2014

Voting rights "safe" in Texas for now--but just for this election cycle

This may come as a surprise to some people, but the 2014 mid-term election is rapidly approaching, with no less important implications than previous elections since Barack Obama was elected president in 2008.  Republicans are still the menace they’ve always been when it concerns the rights of all people—not just their insular, bigoted constituency. Republicans always claim that they are for “individual” rights, when the reality is that they and their constituency only support the individual’s right to ignore or deny another individual’s rights—unless, of course, it is guns and then it’s a Wild West free-for-all. 

One of those most vital rights an individual has in this country is the right to vote, and wherever Republicans hold sway in state government, attempts have been made to pass so-called voter ID laws, which are allegedly “good faith” efforts to prevent “non-citizens” from casting ballots. The reality is that these laws are barely concealed efforts to disenfranchise voters mostly minority and poor, since the circumstances in which they live often makes what better off people take for granted inaccessible. These people—unless, of course, they follow the Republican siren call of scapegoating the most vulnerable, voiceless people—are more like to find Republicans the enemy; thus Republicans have an “interest” in suppressing their vote.  

Two of the more insidious efforts to disenfranchise voters were voter ID laws in Texas and Wisconsin. The “requirement” to show photo ID for the most fundamental of all rights in this country rather than simply a legally-acquired voter registration card may seem a “common sense” measure to those who already possess a driver’s license, but I do not know of a state that requires someone to produce their birth certificate to obtain a driver’s license with a photo (the state of Washington doesn’t). But according to the Texas and Wisconsin voter ID law, if you go down to the licensing station for something other than a driver’s license, you have to produce a birth certificate; a Social Security Number, work or student ID is not applicable. 

Many people in this country—particularly older people—do have or have lost their birth certificates, and some parents didn’t bother to obtain or keep those of their children. Sometimes even if the voter does have a birth certificate, either because of travel limitations or work hours they cannot obtain photo IDs—and naturally more so if they don’t have driver’s licenses. The incongruity of these laws are even more obvious when one observes that showing photo ID is not required every time one uses a mail-in vote.

The Wisconsin law—approved by Republican Gov. Scott Walker (who was the subject of a recall election) and the Republican-controlled legislature—has been in the courts since 2011. It had been blocked until the eleventh hour, when the 7th Circuit Court with its largely Republican-appointee make-up stunned opponents by allowing the law to stand for this election despite the fact they hadn’t decided on its constitutionality. But the U.S. Supreme Court voted 6-3 to temporarily block the law until it decides whether to take up the case; although no opinion was given for blocking the law, it was clear that its going into effect so near to the 2014 election when its constitutionality was still not decided likely played into it.

In the Texas decision, U.S. District Court Judge Nelva Gonzales Ramos left no doubt that the Texas voter ID law was, in the opinion of the court, repugnant.  

In this lawsuit, the Court consolidated four actions challenging Texas Senate Bill 14 (SB 14), which was signed into law on May 27, 2011. The Plaintiffs and Intervenors (collectively “Plaintiffs”)3 claim that SB 14, which requires voters to display one of a very limited number of qualified photo identifications (IDs) to vote, creates a substantial burden on the fundamental right to vote, has a discriminatory effect and purpose, and constitutes a poll tax. Defendants4 contend that SB 14 is an appropriate measure to combat voter fraud, and that it does not burden the right to vote, but rather improves public confidence in elections and, consequently, increases participation. This case proceeded to a bench trial, which concluded on September 22, 2014. Pursuant to Fed. R. Civ. P. 52(a), after hearing and carefully considering all the evidence, the Court issues this Opinion as its findings of fact and conclusions of law. The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics5 and African-Americans, and was imposed with an unconstitutional discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll tax.

Ramos spent much of his decision engaged in a litany of transgressions in Texas attempting to deny minorities (mainly Latinos) of the right to vote by some especially outrageous laws that hardly disguised their purpose:

The careful and meticulous scrutiny of alleged infringement of the right to vote, which this Court is legally required to conduct, includes understanding the history of impairments that have plagued the right to vote in Texas, the racially discriminatory motivations and effects of burdensome qualifications on the right to vote, and their undeniable legacy with respect to the State’s minority population. This uncontroverted and shameful history was perhaps summed up best by Reverend Peter Johnson, who has been an active force in the civil rights movement since the 1960s. “They had no civil rights towns or cities in the State of Texas because of the brutal, violent intimidation and
terrorism that still exists in the State of Texas; not as overt as it was yesterday. But east Texas is Mississippi 40 years ago.

Among these efforts to turn Texas into an oversized Mississippi included the “white primary” law passed after Reconstruction, intended to prevent non-white voters from voting in the state primary. Since the “solid South” was essentially a one-party block for the next century, this meant that the winner of the primary was essentially the winner regardless of who voted in the general election—thus minority voters had de facto no say in the result. It wasn’t until 1927 that U.S. Supreme Court struck down this law as unconstitutional, and the Texas legislature responded by allowing political parties to determine the “qualifications” required to vote in their primaries—again with obviously arbitrarily-determined results. This was law was also found to be clearly unconstitutional.

Then there was the Terrell Election Law, which prohibited elderly or functionally illiterate people from casting votes with personal assistance; only “election judges” representing the dominate extreme-right wing of the Southern Democratic Party were allowed to “verify” votes, with predictable results. This law was also struck down as unconstitutional.  

Texas also included a poll tax in its constitution, which intended to not just decrease minority participation, but that of “inferior” whites. Although the 1964 Voting Rights Act abolished poll taxes in federal elections, the Supreme Court was again obliged to rule as unconstitutional the continuation of the poll tax in state elections. Not to be deterred, the Texas legislature again sought to disenfranchise minority voters by forcing voters to re-register every year; again this was ruled unconstitutional. Refusing to learn its lesson, Texas passed a “purging” law to decrease voting turnout, which this time was rejected by the Department of Justice, since Texas voting laws were now under the purview of the Voting Rights Act.

But Texas racists would not be stopped. After the 26th Amendment allowed those young enough to fight America’s wars to finally have a voice on the policies that sent them there, college age students were not allowed to vote while they attended a university outside their “official” place of residence. This law was also struck down by a lower court, but a Waller County prosecutor decided in 1992 to indict students from all-black Prairie View A&M University for illegal voting anyways; threats by Department of Justice ended that case. Waller County continued to be a thorn in the side of the DOJ; in the run-up to the 2008 presidential election, the county passed voting changes in which “incomplete”—however it chose to define that—ballots would be arbitrarily rejected, and “volunteer” registrars had to “personally” locate and inform voters of this “problem.” One suspects that only Republican voters would be notified. Not only that, but the county also decided to throw in limits to the number of new registrations that an individual registrar could submit, just for “good measure.”

Does Texas’ sorry record of minority voter disenfranchisement end there? What, are you daft? The Republican-dominated state legislature has repeatedly ignored the Voting Rights Act in redistricting—in which legislators admitted was done in an effort to marginalize minority voting, and used the rationalization of combating “voter fraud,” which has become merely a more “acceptable” euphemism for its longstanding voting disenfranchisement efforts. Ramos continues

This history of discrimination has permeated all aspects of life in Texas. Dr. Burton detailed the racial disparities in education, employment, housing, and transportation, which are the natural result of long and systematic racial discrimination. As a result, Hispanics and African-Americans make up a disproportionate number of people living in poverty, and thus have little real choice when it comes to spending money on anything that is not a necessity. Minorities continue to have to overcome fear and intimidation when they vote. Reverend Johnson testified that there are still Anglos at the polls who demand that minority voters identify themselves, telling them that if they have ever gone to jail, they will go to prison if they vote. Additionally, there are poll watchers who dress in law enforcement-style clothing for an intimidating effect. State Representative Ana Hernandez-Luna testified that a city in her district, Pasadena, recently made two city council seats into at-large seats in order to dilute the Hispanic vote and representation. And even where specific discriminatory practices end, their effects persist. It takes time for those who have suffered discrimination to slowly assert their power. Because of past discrimination and intimidation, there is a general pattern by African-Americans of not having the power to fully participate. Other than to assert that today is a different time, Defendants made no effort to dispute the accuracy of the expert historians’ analyses and other witnesses’ accounts of racial discrimination in Texas voting laws—its length, its severity, its effects, or even its obstinacy.

That despite the fact that Latinos and blacks make-up nearly 45 percent of the voting population in the state, yet only nine percent of all state and local elected officials are Latino or black also tends to indicate the continuing “success” of disenfranchising minority voters in Texas. Although in theory Texas should be a left-leaning Democratic state with such a high minority voting base, that is also true of Mississippi:

Instances of campaigns relying on racial messages persist in Texas.41 For example, in a 2008 Texas House of Representatives race, an Anglo candidate sent a mailer featuring a manipulated picture of his Anglo opponent. The opponent’s skin was darkened, a Mexican flag button was superimposed on  his shirt, and an oversized Chinese flag was positioned directly behind him—all while questioning his commitment against illegal immigration.42 Another example is a campaign mailer sent by an Austin-based political action committee against an Anglo candidate running for a Texas House of Representatives seat. The mailer, titled “Birds of a Feather Flock Together,” featured black birds and the Anglo candidate surrounded by various minority elected officials—the late Texas State Senator Mario Gallegos, Congresswoman Sheila Jackson Lee, and President Barack Obama—with the caption “Bad Company Corrupts Good Character.”

Dr. Burton offered another example of a 2008 campaign mailer aimed at dissuading African-Americans from voting. The mailer, sent to African-Americans in Dallas, Texas, warned that a group suspected of voter fraud was trying to get people to the polls and that “[p]olice and other law enforcement agencies [would] be at the voting locations.” The mailer further stated that a victim of voter fraud could serve jail time. This Court finds that racial appeals remain a tactic relied on by Texas’s political campaigns. Defendants offered no controverting evidence on this issue.

The judge took into account a study which showed that only 10 cases of in-person voter fraud between 2000 and 2010—in the entire country.  

Dr. (Lorraine) Minnite’s research found that sloppy journalism regarding voter fraud and officials repeatedly suggesting that voter fraud has occurred have instilled a misconception in the public. Press releases making allegations of voter fraud were often repeated in news stories without having been verified, feeding a baseless skepticism about election integrity. Looking at the pre-SB 14 procedures in place and the rarity of in-person voter impersonation fraud, she concluded: “So SB 14 doesn’t add anything, in my opinion, to what we already have in place.”

The judge also took into account that those defending the law in court could produce no evidence themselves in court of voter fraud.

The judge noted that Texas’ voter ID law is the strictest and hardest law of any state to comply with, and makes it much easier and quicker to reject provisional ballots. Not only that, but one could regard this and all voter ID laws as an unconstitutional poll tax, and for that reason they all should be rejected. Why is this?  If you don’t have a birth certificate handy in Texas, but it is on record with DSHS or the county registrar, it will cost $47 for the search fee and a certified copy made. Then you have to get the photo ID: An additional $25.This means that if you don’t have a birth certificate or a driver’s license, it will cost you up to $72—and this doesn’t include  the cost of a driver’s training course if needed—or wages lost if this can only be done on work day.

Even if you only obtain a personal identification card, that can cost up to $63. A citizenship certificate with photo in order to vote can cost up to $680—obviously useful in diluting the Latino vote.

The judge was also outraged by the fact the Republican-dominated Texas Senate followed Gov. Perry’s admonition to hurry through the photo ID law in the run-up to the 2012 election (in which he would be running in primaries as a Republican presidential hopeful), and decided for just this issue to block a Senate rule requiring a 2/3 vote to allow the issue to bypass “ordinary order of business.”

It was also noted, as one expert noted that because Latinos now represent the majority of students in Texas’ public schools. “voter restrictions tend to arise in a predictable pattern when the party in power perceives a threat of minority voter increases.”

As for alleged “fear” of voting by illegal immigrants

Representative Hernandez-Luna testified convincingly that illegal immigrants are not likely to try to vote. “They are living in the shadows. They don’t want any contact with the government for fear of being deported because that—I mean, my family was afraid to even go grocery shopping much less attempt to illegally vote.”  Instead, the issue of non-citizen voting appears related to citizens who have confused the voter registration records because, when they are summoned for jury duty, they deny their citizenship in order to be exempt from service. So that “non-citizen” report filters into voter records despite the fact that it is false.

The bizarre claim that the law would actually increase voting because there would be more “confidence” in the system brought the suitably sarcastic remark that no one was aware that that anyone did not vote because of a “concern” about voter fraud. In fact, the law would decrease voter participation because it would “decrease voter turnout because it increases the cost associated with voting. Because the poor are more sensitive to cost issues…raising the cost of voting would almost certainly decrease voter turnout, particularly among minorities.  Dr. Hood admitted that it was a firmly established political science principle that increased costs of voting are related to decreased turnout, which could be expected with respect to the cost of obtaining an EIC unless some other factor outweighed it for the voters.”

It was also determined that a significant number of eligible voters could not vote if the law went into effect. “Several experts were tasked with determining the number of registered voters who might lack SB 14 ID, along with their demographic characteristics. Based on the testimony and numerous statistical analyses provided at trial, this Court finds that approximately 608,470 registered voters in Texas, representing approximately 4.5% of all registered voters, lack qualified SB 14 ID.”

In the end, the court ruled in favor of the plaintiffs based on the fact that

SB 14 Creates a Discriminatory Result. This Court finds that Plaintiffs have met their burden of proving that SB 14 produces a discriminatory result that is actionable because SB 14’s voter ID requirements interact with social and historical conditions in Texas to cause an inequality in the electoral opportunities enjoyed by African-Americans and Hispanic voters as compared to Anglo voters. In other words, SB 14 does not disproportionately impact African-Americans and Hispanics by mere chance. Rather, it does so by its interaction with the vestiges of past and current racial discrimination. SB 14 results in the denial or abridgement of the right of African-Americans and Latinos to vote on account of their race, color, or membership in a language minority group in violation of Section 2 of the Voting Rights Act.


SB 14 Has a Discriminatory Purpose--Voting Rights Act, Section 2 and 14th and 15th Amendments Plaintiffs challenge SB 14 on the basis that it was enacted with a discriminatory purpose under the VRA and the 14th and 15th Amendments. While the United States proceeds under VRA Section 2 and the remaining Plaintiffs proceed under both Section 2 and the constitutional provisions, the rubric for making a determination of a discriminatory purpose is the same. Discriminatory intent is shown when racial discrimination was a motivating factor in the governing body’s decision. Discriminatory purpose “implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’. . . its adverse effects upon an identifiable group.” In the final analysis, discriminatory purpose need not be the primary purpose of the official act for a violation to occur as long as it is one purpose. The Court does not attempt to discern the motivations of particular legislators and attribute that motivation to the legislature as a whole. Instead, to determine intent the Court considers direct and circumstantial evidence, “including the normal inferences to be drawn from the foreseeability of defendant’s actions.”


SB 14 Constitutes an Unconstitutional Poll Tax—24th and 14th Amendments The 24th Amendment provides that a citizen’s right to vote in a federal election may not be “denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.” The 24th Amendment “nullifies sophisticated as well as simple-minded modes of impairing the right guaranteed.” A statute also violates the 24th Amendment if “it imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote in federal elections without paying a poll tax.” In Harper v. Virginia State Board of Elections, the Supreme Court extended the ban on poll taxes to state elections, using the Equal Protection Clause of the 14th Amendment. Specifically, the Court held that a State may not use “the affluence of the voter or payment of any fee [as] an electoral standard” because “wealth or fee paying has . . . no relation to voting qualifications.” In finding that a $1.50 poll tax for state elections violated the Equal Protection Clause, the Harper Court held that “[t]he degree of the discrimination is irrelevant.”

For at least this election cycle, voting rights are “safe”—but for how long?

Apparently not for long; soon afterwards the U.S. Supreme--unimpressed by history, facts and figures--allowed the Texas law to go into effect. The law and ones similar to it was blamed for the lowest voter turnout in the country in a midterm election since 1942. 22,000 voters were turned away in Kansas because they didn't have the "proper" identification--this despite the fact that evidence of illegal voting was almost non-existent when these voter ID laws were passed. Republicans took control of nine more states, which again proves that increasingly the Republican Party is becoming the party of white people--women as well as men. Beginning next year, I'm going to start calling the Republican Party the "White People's Party."

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