Texas Photo ID Trial Update: Closing Arguments

First closing statements were provided by Richard Dellheim, an Attorney at the Civil Rights Division for the Department of Justice, and Ezra Rosenberg, an Attorney at Dechert LLP, who spoke for the plaintiffs.

September 22, 2014

After nearly a year of litigation, the Texas photo ID trial started on September 2. Closing arguments are today. Visit our trial page for more updates.

The first closing statement was provided by Richard Dellheim, an Attorney at Civil Rights Division for the Department of Justice.

  • Dellheim stated that this litigation fits easily in a line of cases over the years in which courts in Texas have confronted and stopped discriminatory voting laws. He argued that SB 14 violates the Voting Rights Act and that the law should be enjoined. Dellheim stated that under SB 14, African Americans and Hispanic voters have less opportunity than state’s Anglo voters to cast an in-person ballot that counts
  • In terms of a disparate racial impact, Dellheim stated that there is unrefuted evidence that people are harmed. Prof. Ansolabehere, an expert in this case found that over 600,000 voters in Texas lack acceptable photo ID under SB 14, and that there are differences based on race. Dr.Ansolabehere used 4 different types of tests to conduct the analysis and found that, whichever generally accepted methodology was used, the results were the same:  statistically significant racial disparities across the board.
  • While people over 65 can vote by mail, Dellheim stated that many people testified during trial that they profoundly want to vote in person and have concerns about the security of mail voting. Similarly, the disability exemption is illusory: just 18 voters across the state of Texas have applied for that as of January of 2014.
  • Dellheim stated that Prof. Webster, another expert in this case, testified that predominantly minority communities have higher concentration of voters who lack SB 14 ID. According to Webster’s results, race and ID ownership are highly correlated in Texas.
  • Dellheim stated that SB 14 creates unique and onerous burdens that fall heavily on minority voters, burdens that go far beyond the burden of voting itself.
  • Dellheim argued that the higher the cost of voting, the less likely people are to vote, and that the cost is higher for minorities. He stated that the poverty rate for African Americans is twice that of whites; for Hispanics it’s three times as high.  Minorities earn 60% of what whites earn across the state.  Hispanics lack vehicles at twice rate of whites; African Americans lack vehicles at three times the rate. Dellheim stated that the plaintiff’s experts demonstrated that it is much more burdensome and takes much longer to get an Election Information Certificate (EIC) on public transit when compared to in a car.
  • He argued that you need education to navigate the bureaucracy and gather the information needed to get an ID. Dellheim stated that an EIC is not really free, and the program is, at best, terribly flawed: the requirements are elaborate, and you need a certified copy of a certificate, which can cost a lot of money. He argued that public is completely unaware that the election identification birth certificate exists, and that the Department of Public Safety (DPS) didn’t advertise it and failed to post any notice of it until the day before this trial ended. Importantly, voters can only apply for an EIC in person, so they must take at least two trips to go to the registrar and then the EIC-issuing location. The DPS could have solved this problem by electronically linking its database to the birth record database, but it chose not to do so.
  • Dellheim noted that DPS has taken a law enforcement approach to the distribution of EICs.  He pointed out that they originally fingerprinted applicants, and that their regulation still says that fingerprints are required.  Troopers have been present even when offices are open for the sole purpose of issuing EICs.  He argued that there is a misconception, even among DPS employees themselves, about whether a warrant check will be run when people come to get an EIC. 78 counties lack a permanent DPS office; in more than 40 additional counties, the office isn’t even open every week day.  He stated that 25 mobile EIC units were deployed for very few days with little or no notice.
  • Dellheim noted that 179 EICs have been issued to date across the state of Texas.  In Georgia, a much smaller state, in half as much time after voter ID was implemented, nearly 2200 voter photo ID cards had been issued.
  • Dellheim discussed the history of voting discrimination in Texas. He stated that as recently as 2006, the Supreme Court found that Texas’ 2003 redistricting process bore the mark of intentional discrimination.  The same legislature that adopted SB 14 was found by a court to have adopted discriminatory redistricting plans. 
  • Dellheim argued that eliminating voter fraud is an important state interest, but that fraud like the kind targeted by SB 14 is barely existent in Texas.  He argued that the Supreme Court’s ruling in Crawford didn’t confer blanket approval over any voter ID law, including any passed with discriminatory intent.  He stated that not all voter ID laws violate section 2, but this one does, and it imposes significant and especially harsh burdens on voters who lack ID, many of whom are African American and Hispanic and the least able to pay SB 14’s institutional costs.
  • Dellheim concluded by saying this case implicates the fundamental right to vote, perhaps the most sacred right. The right that the Supreme Court says protects all others.

Ezra Rosenberg, an Attorney at Dechert LLP, spoke next for the plaintiffs. Rosenberg represents the Mexican American Legislative Caucus of the Texas House of Representatives (MALC), and the Texas State Conference of NAACP Branches. In addition to Dechert, the attorneys representing these plaintiffs are the Brennan Center for Justice, Lawyers’ Committee for Civil Rights Under Law, Law Offices of Jose Garza, the national office of the NAACP, Law Office of Robert S. Notzon, Potter Bledsoe L.L.P., and Covich Law Firm LLC.

  • Rosenberg started by noting that the plaintiffs don’t have to prove discriminatory purpose to win their Section 2 results case; rather, discriminatory purpose is required to win the Section 2 intent case, to obtain the bail-in remedy under Section 3 of the Voting Rights Act, and is relevant to their constitutional claim. The Plaintiffs have to prove that discriminatory intent was a motivating factor, not the sole factor nor even the prime factor behind SB 14.
  • Rosenberg stated that the data from the database matching and the surveys are consistent, uniform in direction, and consistent in magnitude: there is absolutely no doubt that SB 14 imposes a disproportionate impact on African Americans and Hispanics. He said that this is virtually unchallenged by the state.
  • He noted that one of Texas’s two experts was not even called at trial. Dr. Milyo was retained by the state to critique 17 reports by the plaintiffs’ experts – reports of transportation experts, historians, and surveyors, among others, even though Dr. Milyo has no expertise in any of those fields. Plaintiffs’ experts had ably rejected his criticisms and Rosenberg argued that the court should reject his opinion in its entirety.
  • He argued that prior to the passage of SB 14, there was an ID law that was working fine in Texas.  Non-citizen voting, the first purported justification for the law, was very rare, and is a weak justification because some forms of SB 14 ID are IDs that non-citizens can obtain. 
  • He stated that the second justification for the law was voter fraud, but that SB 14 only deals with in-person impersonation fraud.  Rosenberg argued that multiple experts, including Dr. Lorraine Minnite, showed that in-person voter fraud in Texas is exceedingly rare.  Even Major Forrest Mitchell, the person working for the state of Texas charged with finding voter fraud, could find only two cases in the past 14 years, during which more than 60 million ballots were cast.  Rosenberg argued that fraud is a really ineffective way of affecting an election, and the penalties are really strict. 
  • Rosenberg stated that another justification for the law was that SB 14 was meant to increase confidence in the integrity of ballot box.  He argued that the polls that politicians say they were relying ask whether someone should present a valid photo ID, or a government ID, but that SB 14 is much stricter than that—the polls don’t show support for the legislation that actually passed in 2011.
  • Rosenberg noted that plaintiffs had shown an historical background of racial discrimination in voting in Texas, including white primaries and re-registration requirements. Rev. Johnson, a witness in the case, testified not only as to the intimidation at the polls that he saw several decades ago, but the intimidation that he sees today. By 2004, Texas had become a minority-majority state. In the years leading up to 2010, three-fourths of the population growth was the result of an increase in the Hispanic and African American population. Rosenberg pointed to testimony from legislators that indicated that this population shift changed the atmosphere in the legislature. The legislature turned its attention to anti-immigrant and anti-Hispanic initiatives. The first Voter ID statute was introduced in 2005, within a year after Texas became a majority-minority state. From the start, Rosenberg demonstrated, voter ID was intertwined with immigration. It was in this racially charged environment that voter ID emerged and was passed and voter ID and SB 14 is inextricably connected with that racially-charged atmosphere.
  • Rosenberg argued that there were substantive or procedural departures from how one would expect the legislature to act in 2011. The legislature never undertook a study on whether photo ID would disproportionately affect minorities even though they were told repeatedly by numerous people that it would, and knew the Secretary of State could compare databases to get a sense of how many people lacked ID. Rosenberg suggested that they did not do so, perhaps, because the evidence showed they already knew the results. Rep. Todd Smith, the sponsor of a precursor bill to SB 14, had done his own analysis estimating around 700,000 voters lacked ID. And a staffer in Senator Dewhurst’s office wrote a memo about the precursor bill --- which was less strict than SB 14 and allowed non-photo ID --- stating that it improves election integrity while being less strict than Georgia or Indiana’s voter ID laws, and was less likely to disenfranchise minority or elderly voters. Although that bill did not pass, Rosenberg argued, rather than looking for ways to compromise with the bill’s opponents, the legislature instead looked for ways to eliminate the very procedures in the Senate that fostered compromise.
  • He stated that he two-third rule of legislative procedure was eliminated only for voter ID.  Voter ID was the only thing assigned to the Committee of the Whole, as opposed to the specialized committee that dealt with the subject matter.  Rosenberg pointed to Wendy Davis’s testimony in Texas v. Holder:  she stated that the year SB 14 passed was the only legislature she had ever seen where both the two-thirds rule was waived and a bill was sent to the Committee of the Whole. Rosenberg stated that in addition to this, the legislature got Governor Perry to sign an executive order to call an emergency session for one thing and one thing only – voter ID. That meant it had to be considered within 60 days of start of session.
  • Rosenberg stated that SB 14 was the strictest of all the photo ID bills that had been considered by Texas in the past, as well as being stricter than the Georgia and Indiana statutes that SB 14 proponents claimed they had modeled SB 14 on.
  • Rosenberg pointed to Prof. Lichtmann’s testimony showing that the Texas legislature made a series of choices, and at each turn, they made the choice to discriminate. Rosenberg stated that they chose to exclude non-photo IDs, government employee IDs even though African Americans and Hispanics are disproportionately a larger portion of government employees in Texas, and public university IDs when African Americans and Hispanics also make up a disproportionate percentage of that population. On the other hand, the legislature chose to include a License to carry as an acceptable form of ID, which is more popular among whites, chose to exclude absentee ballots, which are more used by whites, and chose to ignore amendment after amendment that would have been ameliorative. Rosenberg argued that the proponents of these limitations have failed to offer any explanation, and that the State did not produce a single legislator who was proponent of SB 14 to subject himself or herself to cross examination.
  • Rosenberg concluded by speaking of his own personal experience as the son of immigrants. He noted that his parents were lucky to never have felt the pain of official discrimination, but he sat in court and heard Sammie Bates speak about counting out coins to help her mother pay her poll taxes, and heard of the heroism of witnesses who overcame physical hurdles to walk into the court to tell their story, and the bravery of Rev. Johnson who said he was there because he had friends who were in the graveyard for their right to vote.