Texas Photo ID Trial Update: Day Five Afternoon Session

After nearly a year of litigation, the Texas photo ID trial started Tuesday, September 2. Visit our trial page for updates from the expected two-week trial as it proceeds.

On the afternoon of September 8th, the Court heard from an expert for the plaintiffs, a former Director of Elections in Texas, a Texas legislator, and two Texans who had trouble obtaining photo ID to vote.

George Korbel, an expert for the plaintiffs, was the first witness of the afternoon. Korbel is a lawyer that has testified in a number of vote dilution cases since 1971, including eight cases in the past four years. Neil Baron led the examination.

• Korbel testified that he was asked to look at the history of discrimination in Texas and the timing and logistical problems one would encounter in obtaining an Election Identification Certificate (“EIC”) or other SB 14 ID.
• He stated that when the United States passed the 24th Amendment, Texas passed a bill in response to have two ballots—one ballot with a poll tax, for state elections, and one ballot without a poll tax, for federal elections. This law never went into effect because the Voting Rights Act was passed and the law was blocked by the Attorney General. Korbel testified that only in 2009 did Texas ratify the 24th Amendment.
• Korbel stated that large parts of Texas’s 1990s-era redistricting plans were declared unconstitutional by the Supreme Court. He testified that, in the 2010 redistricting cycle, districts were drawn almost identical to ones which had been found to violate the Voting Rights Act in 2006, except this time emails and tweets also surfaced showing that Texas’s intent was to prevent election of the minority community’s candidates of choice.
• Korbel testified that, out of the eight congressional districts that touch on Dallas and Tarrant counties, only one currently provides minority voters the opportunity to elect representatives of their choice. Korbel defined racially polarized voting as when racial or ethnic groups vote significantly differently, so that African Americans’ or Hispanics’ candidates of choice would be different from whites’ candidate of choice. He stated that it is the basis on which this whole area of the law depends, and that 21 federal court cases have found racially polarized voting in Texas. He testified that, in the final argument in Perry v. Perez, an ongoing Texas redistricting case, Texas stipulated that racially polarized voting takes place throughout the state.
• Korbel was cross-examined by John Scott, who focused on a portion of Korbel’s expert report in which he discussed the distance one would need to travel to DPS to obtain photo ID. Scott asked Korbel whether he had conducted an analysis of how far the individual plaintiffs would have to travel to get ID. Korbel said no. Scott pointed out that Korbel did not take into account county offices where voters could obtain an EIC when he discussed the distances voters would have to travel to obtain ID. Korbel replied that the DPS website didn’t have information about those locations. Scott pointed out that while the Department of Justice made 19 objections to election changes in Texas pursuant to Section Five of the VRA over the past 15 years, the overall number of election changes in a large state like Texas is much higher than in other states.

Next, the Department of Justice introduced testimony from two depositions of Ann McGeehan, Director of the Elections Division in Texas from 1995 to 2011. McGeehan testified that during a legislative hearing on SB 218, an earlier version of a photo ID bill, she stated that she could not identify any instances of voter impersonation fraud. She also testified that photo ID legislation would not prevent a non-citizen from voting if they have one of the forms of ID accepted. The State of Texas then introduced testimony from McGeehan’s deposition in response. In that submission, McGeehan testified that she was aware of complaints from voters who were concerned about election integrity and wanted to see more safeguards in place, and that she believed photo ID would give some voters greater confidence in elections.

Virginia “Ruby” Barber, an individual affected by SB 14, then testified by video.

• Barber stated that she was born in Tennessee in 1921 and had never possessed a birth certificate: “My birth was only written in the Bible.” She testified that she votes in every election, and that she always votes in person because she worries that a mail ballot wouldn’t be counted.
• Barber testified that she was advised by her doctor not to drive anymore, but still uses her expired driver’s license as her primary form of identification. When she went to DPS to obtain new photo ID to vote, she brought her Medicare card, her social security card, her insurance card, and her expired driver’s license, and was told that she couldn’t get an ID until she brought in her birth certificate. Barber testified she was “very mad” when she left DPS because she was worried she wouldn’t be able to vote, so she contacted a reporter to share her story. She stated that she was later called by DPS. When she went back, they asked her if she was Ruby Barber, took her picture, and said they would mail her an ID.
• Barber testified that she is not interested in the disability exemption because although she has a documented disability, she is able to walk with the help of a walker.

The Court next heard a reading from the deposition of Todd Smith, a former Republican member of the Texas House of Representatives who represented District 92 from 1997 to 2013.

• Smith stated that photo ID legislation was a priority for Republican activist groups because of a fear that there were a lot of non-citizens or otherwise ineligible voters voting.
• He testified that his office had created an estimate of the number of Texans without ID based on the percentage of people lacking ID in other states, and believes that he estimated it was around 400,000 to 500,000 people. He stated that he probably mentioned this number in committee hearings and ran it by the speaker’s office.
• Smith said that there were concerns from his constituents that it was too easy for people to lie when voting, but that his constituents did not provide evidence to support these concerns.
• When asked whether the forms of ID accepted under SB 14 represent a significant departure from the forms of ID that would have been accepted under an earlier voter ID bill debated by the legislature, Smith stated that they do: the former bill would have allowed some forms of non-photo ID, as well as expired IDs. Smith testified that he believes this complete change in approach came from the fact that supporters wanted to pass the strictest form of the law that they could, given the political makeup of the legislature at the time.
• Smith said that he had supported using library cards as a form of voter ID initially, but that he had been attacked for doing so by his opponent in the following election, because accepting library cards feeds the perception that non-citizens would be allowed to vote.
• Smith testified that he understood that getting an ID is a burden, as is the cost of obtaining underlying documentation and of travelling to collect these documents.
• Smith said he believes there are undetected instances of voter fraud occurring, but that it is not an epidemic.
• Smith stated he did not need to see an empirical study to know that people without IDs are more likely to be minorities.
• Smith testified that the purposes of SB 14 were to ensure that every vote cast is a legal vote and to deter fraud.

Last to appear, via video testimony, was Vera Trotter, a 74-year-old African-American voter.

• Trotter testified that she was born in 1940 in Dallas, and that she uses her expired driver’s license as her primary form of ID.
• Trotter stated that she did not renew her driver’s license because she was hospitalized around when it expired. She stated that when she got a library card, she did not need to show ID because she knew everyone there. Trotter testified that she hardly ever goes to the bank, and that she doesn’t have to show ID when purchasing alcohol or cigarettes. To get her prescription medications, Trotter said that her expired driver’s license works “all the time.”
• She testified that she was unaware that individuals over the age of 65 can vote by mail—she was told it was only an option for persons with disabilities.
• Trotter was asked to look at a copy of an EIC, and she pointed out that the EIC states that it is for elections only, and not a form of identification.
• She testified that, when she went to vote in March 2014 with her voter registration card and expired driver’s license, she was told she couldn’t vote. She wasn’t offered a provisional ballot, and found out only later about a provisional ballot process. Trotter testified that it didn’t make sense to her that she could not use her expired driver’s license as proof of identification to vote.
• She testified that her council member informed her that she could get an EIC from DPS to vote. She stated that she went to obtain her EIC on a Saturday morning. She presented her expired driver’s license in order to get an EIC. They did not ask for any other forms of identification. Trotter stated that she then returned to the polls with her EIC, but was told she had to vote provisionally, which she did, and then she took a trip to the elections office to cure that provisional ballot.
• Trotter testified that, to cast a ballot in the March 2014 election, she made four trips in all: to the polls twice, to the DPS office once, and to the elections office once, all within a span of two to three weeks. Trotter stated that this was the longest vote she had ever cast.
• Under examination by an attorney for the State of Texas, Trotter testified that she voted successfully by mail in the May 2014 election, that although she doesn’t drive, she has friends who give her rides, and that she could afford the $6 fee for a senior citizen Texas photo ID card.