Texas Photo ID Trial Update: Day Five Morning 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.

During the first morning of the second week of trial, the Court heard from a County Commissioner for Nueces County and three experts for the plaintiffs.

The first witness of the day was Oscar Ortiz, who has been commissioner of Nueces County (the county in which the trial is taking place) for 20 years and is a plaintiff in the case. Chad Dunn led the examination.

• Ortiz testified that 67 to 68 percent of his county’s population is Latino, and that there is one other Latino commissioner of Nueces County besides himself. Republicans make up a majority of the Nueces County Commission.
• He stated that redistricting has occurred recently in his county. He testified that the county, working with attorney Joe Nixon, diluted the white population from Commissioner Ortiz’s precinct and put it into another precinct, Precinct One, to make it a safer Republican seat. Before this change, Precinct One had been becoming more electorally competitive because of a rising Hispanic population.
• Ortiz, along with the other Latino commissioner, voted against the plan. Ortiz testified that when the plan was submitted to the Department of Justice under Section Five of the Voting Rights Act, they determined it was retrogressive and issued a written objection. He stated that one of the Department of Justice’s objections was that Texas had failed to conclusively show that the redistricting hadn’t been undertaken with a discriminatory purpose. He testified that he believed the plan was altered in light of communications with the Department of Justice.
• Ortiz testified that, after SB 14 went into effect, he had some trouble voting because the name on his voter registration card did not exactly match the name on his driver’s license. He was eventually permitted to vote.
• He testified that his constituents have voiced concerns about the new law, particularly those constituents living in rural areas. He stated that he has also heard concerns from divorced women whose names appear differently on different documents. He testified about individuals who lack a birth certificate and therefore cannot get ID, but are then told that they need a photo ID to get a birth certificate. Ortiz stated that many of his constituents were not born in a hospital and instead used the services of a midwife, and therefore do not have birth certificates.
• Ortiz stated that he was concerned that the DPS office within Nueces County was moving to a highly inaccessible location. He also testified that he and the other commissioners had not been informed about the presence of mobile units distributing Election Identification Certificates.
• Jennifer Roscetti conducted Ortiz’s cross-examination for the State of Texas. She asked Ortiz if he was aware of the National Voter Registration Act, and that Congress had enacted the NVRA because it felt that having individuals register to vote while they were conducting other business at the DMV was the most cost-effective way to register voters. Ortiz testified that the reality does not bear this out.

The second witness of the day was Kevin Jewell, an expert who was asked to quantify and contextualize the cost of obtaining a photo ID to vote for seven of the plaintiffs in the case. Robert Doggett took the lead in questioning.

• Jewell testified that he has conducted quantitative analysis in business and litigation contexts for 17 years. For this case, he wanted to understand the finances of the plaintiffs’ households, and what the cost of obtaining photo ID means within the financial context of these particular households. He stated that he looked at the following costs: 1) the actual costs of the identification and required underlying documents; 2) transportation costs to get to a DPS office in order to get an ID or to travel to obtain a birth certificate; 3) opportunity costs (primarily time); and 4) information search costs, or the cost of the time it takes to figure out the process.
• He stated that for out-of-pocket fees to obtain supporting documentation, the linchpin is the cost of obtaining a birth certificate, which is $23 by mail. Several plaintiffs have no record of birth on file, so a birth certificate would have to be created at the cost of $47. Jewell testified that he did not consider EIC Birth Certificates, which can be obtained for $2 to $3, because there is so little information on the certificate available to the public.
• He stated that one plaintiff had concerns that his or her name on their driver’s licenses didn’t match the name on the voter registration card, which would also cost money to fix.
• Jewell testified that the transportation costs he estimated assume that people can complete their interaction with DPS in one trip, but that in reality many people would have to take multiple trips in order to navigate the process.
• Jewell testified to the precise costs particular plaintiffs to this case would incur in obtaining SB 14 ID. For example, he calculated that plaintiff Maximina M. Lara would need to pay $63-$85 in out-of-pocket fees to obtain ID, would spend five times the average voter wait time from 2012 getting ID, and would spent 35 percent - 48 percent of her monthly unobligated discretionary income on the process.
• He testified that, given the costs of acquiring SB 14, Ms. Lara’s entire income in excess of poverty guidelines would be used to get ID. He stated that five of the seven individual plaintiffs he studied have no household income in excess of poverty guidelines. In addition to their monthly expenses, he found that many plaintiffs have debts and loans. He stated that Ms. Lara, for example, has a payday loan on which she pays a monthly 90 percent interest, so she would essentially be borrowing money to get SB 14 ID, because otherwise that money would go toward paying off her loan.
• Jewell addressed some of the criticisms of his analysis made by Dr. Milyo, an expert for the State of Texas. He testified that one of Dr. Milyo’s points was that you can receive assistance and rides from other members of your community. Jewell states that this still results in a cost, and often in these communities many of the plaintiff’s friends will have the same vehicle access issues. In response to Dr. Milyo’s criticism that his analysis did not consider the benefits of SB 14, Jewell stated that he was asked to conduct a cost analysis.
• Jewell stated that “these costs are out-of-pocket and real. The budgets these individuals have are constrained. That means they have to make a choice that many Texans don’t have to. They have to choose between using their money to buy an ID or something else that may be important to them.”
• Ben Donnell conducted Jewell’s cross-examination for the State of Texas. Donnell asked if Jewell had accepted all the information the plaintiffs provided as true, and whether that formed the basis of his calculations. Jewell said that was correct. Donnell also asked whether, even if the plaintiffs accomplished multiple tasks on a trip in addition to obtaining ID, Jewell’s analysis assigns all of the costs of the trip toward going to DPS to get ID, and Jewell confirmed that it does. Donnell questioned if any of the costs Jewell calculated would be incurred if the plaintiffs had voted by mail. Jewell said that because the plaintiffs represented to him they wanted to vote in person, he did not conduct that analysis. Donnell asked whether the plaintiffs Jewell studied, all of whom are Latino, would have incurred the same costs if they were black or white, to which Jewell responded that his analysis did not take race into consideration.

The next expert examined was Dr. Daniel Chatman, Professor at the University of California, Berkeley. Ezra Rosenberg conducted the examination.

• Chatman testified that he was asked to analyze what travel burden was created by the photo ID requirement, and how that varied by race and other factors. He stated that he assessed the travel burden for eligible voters seeking to obtain an Election Identification Certificate (“EIC”) in his analysis.
• Chatman stated that there are a number of steps to investigating a travel burden. One is to come up with an understanding of what level of effort would be considered burdensome. He stated that there are many factors involved in traveling to a location where you can get an EIC, which include various out-of-pocket costs. He testified that he focused his study on travel time because it is quantifiable and is known to be a major component of generalized costs that people incur when they travel anywhere. He defined a travel burden as being required to travel for more than 90 minutes round-trip on public transportation or on foot, which represents less than 1 percent of trips in Texas, according to data from the National Household Travel Survey.
• Chatman testified that 4.7 percent of all eligible voters would have to take a trip of 90 minutes or greater in order to get an EIC: 3.3 percent of white voters, 5 percent of Hispanic voters, and 11 percent of African-American voters. Chatman stated that the burden of trips this long falls almost entirely on households without access to a vehicle.
• Chatman was asked about the criticism of Dr. Milyo, an expert for the State of Texas. Dr. Milyo wrote that many people combine tasks on a trip, and therefore Chatman’s burden analysis is skewed because he assumes people travel for the sole purpose of obtaining an EIC. Chatman stated that the literature shows such multi-tasking is more likely to occur when you are traveling alone in a vehicle. When bussing or traveling with a friend, there are more negotiations associated with combining trips.
• The cross-examination was conducted by Reed Clay. He asked whether Chatman was using census data that is four years old. Chatman stated that that was correct. He also asked whether there were unavoidable errors associated with using census block group data as Chatman did, and Chatman said that there was. Chatman also stated that he did not consider trips by bike in his analysis because the use of bike share in Texas is so small. He also said when asked that his analysis does not identify travel burdens specifically for registered voters lacking SB 14 ID.

The final witness of the morning was Dr. Lorraine Minnite, an associate professor at Rutgers University and an expert on voter fraud. Myrna Pérez of the Brennan Center conducted her examination.

• Minnite testified that she was asked to analyze the extent and existence of voter fraud, nationally and in Texas, and the type of voter fraud that would be prevented by SB 14.
• Minnite defined voter fraud as the intentional corruption of the voting process by voters. She stated that election fraud would include things beyond what the voter does. Voter fraud as she defines it looks at the voter as the actor — it is a subset of election fraud. Minnite testified that she conducted a mixed-method analysis in this case, which is both quantitative and qualitative. She obtained the data underlying her analysis while researching her book and from litigation documents produced as part of this deposition.
• When asked what type of fraud SB 14 can prevent, she stated that it could prevent a person pretending to be someone else at the polls.
• Minnite testified that she looked at indictments of fraud as well as convictions because indictments can also provide some solid evidence of credible claims.
• Minnite found four credible claims of voter fraud from 2000 to the present in Texas. From 2000 until 2011, when SB 14 was passed, she found only two. She stated she considered this to be rare because there were millions of ballots cast during that time.
• Minnite stated that voter fraud is a politicized issue, and that she believes the public has a misconception about the prevalence of voter fraud. She stated that she noticed the reporting on voter fraud was very inaccurate when she first started studying this area — claims of voter fraud would be repeated without fact checking. She testified that she knows there is misconception around voter fraud because it is enormously difficult to actually obtain the data.
• Reed Clay conducted cross-examination for the State of Texas. Clay asked about the amount of voter fraud that this analysis may have overlooked because the fraud was undetected by authorities. Minnite stated that she took this into account and it doesn’t change her conclusion — even if her analysis only captured 10 percent of the voter fraud perpetuated, it is still a very small number overall. Clay stated that the IRS has an entire division devoted to fraud, but that there are many more cases which go unnoticed.