Texas Photo ID Trial Update: Day Six 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.

The sixth day of the Texas photo ID trial taking place in Corpus Christi kicked off with testimony from two experts for the plaintiffs and a Texas voter affected by SB 14.

The first witness of the morning was Prof. Vernon Burton, whose examination was led by Natasha Korgaonkar. Burton is a professor of history at Clemson University whose work focuses on American history, particularly that of the American South.

• Burton testified that he was asked to assess the social and historical conditions in Texas, including past and present racial discrimination in the state. He stated that SB 14 results in inequality for black voters. He focused on the Senate Factors used to determine whether a law denies or abridges the right to vote on account of race or color in violation of the Voting Rights Act.
• Burton stated that, as to Senate Factor 1 (the history of voting-related discrimination in the state), Texas has a long history of discrimination in official acts to disenfranchise, dilute, or deny the equal opportunity of minorities to participate in the political process. He testified to examples, including all-white primaries, adoption of the secret ballot, poll taxes, voter roll purging, and photo ID requirements. Burton related that the stated rationale for all of these is voter fraud, but none of these devices actually implicate voter fraud. He stated that white primaries became popular on the heels of Reconstruction, a brief period during which African-Americans were participating in elections. The poll tax, he testified, was actually a way to disenfranchise those who were disproportionately poor and couldn’t afford to pay the tax. Burton testified that SB 14 represents a modern-day continuation of long-standing discrimination, in which efforts to suppress the African-American vote are instituted when blacks are perceived to be gaining political power.
• Burton testified that, as to Senate Factor 5 (the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process), there were and are disparities in education, employment, and housing. Burton stated that Texas resisted school integration in the wake of Brown v. Board of Education, and that today schools are actually in the process of becoming increasingly re-segregated. Burton stated that education is the key component as to who votes and who does not.
• Burton testified that, as to Senate Factor 6 (the use of racial appeals in political campaigns), race has been a central feature of Texas politics. He stated that over time the appeals have gone from overt to covert, and testified about a recent attack mailer featuring a photo of a white candidate among minority politicians, placed against a backdrop of a flock of black birds, with the caption “Birds of a Feather Flock Together.” Burton testified that the message was that the candidate was unsuitable because he is associated with minority politicians.
• Burton testified that, as to Senate Factor 9 (whether the policy underlying the law is tenuous), he understood the stated rationale for SB 14 to be preventing voter fraud, but that that is a tenuous rationale.
• Burton testified that there is a straight line that goes from prior state-sponsored acts of discrimination to SB 14. He stated that SB 14 cannot be understood without understanding the relevant historical context: “You cannot ignore your history. History is powerful. History has consequences.”
• Under cross-examination by John Scott, Burton testified that there is no white primary currently in place in Texas. Burton agreed that “for most voters” showing photo ID to vote does not represent a significant burden, but stated that it does for some who face serious burdens. Burton agreed that many of the most segregated cities in the country are not in Texas, but stated in response that Texas was less segregated because it used to be a slave state, and for slavery to work you had to have your slaves with you.

The second witness of the morning was Coleman Bazelon, Ph.D. of The Brattle Group, an economic consulting firm. The examination was conducted by Danielle Conley.

• Bazelon stated that he was asked to evaluate the economic burden of SB 14 on voters. He testified that: (1) a disproportionate share of registered voters who will need a new ID to vote are African American; (2) acquiring an ID for the purposes of voting, including an Election Identification Certificate (“EIC”), comes with real economic costs; and (3) the burden of SB 14 costs is substantially higher for African-American Texans than for white Texans.
• Bazelon testified that 4.5 percent of white registered voters, 6.8 percent of African-American registered voters, and 6.5 percent of Hispanic registered voters in Texas lack SB 14 ID. Bazelon stated that his numbers differ from those of another expert, Prof. Stephen Ansolabehere, because Bazelon did not consider voters with a documented disability. He stated that although voters have largely not received the advantages of the disability exemption so far, he made the assumption that they would. Bazelon testified that his results are “broadly consistent” with those of Ansolabehere.
• Bazelon testified that he found a disparity in travel times, with African Americans on average spending more than twice as much time as whites on average to travel to obtain photo ID.
• Bazelon also testified that the average cost to a voter in Texas of obtaining an EIC is $42. The average cost for a white Texan is $48.68 and the average cost for an African-American Texan is $27.46. Bazelon stated that this disparity can be explained by the wage gap: Bazelon factored opportunity costs into his analysis, and because whites are paid at a higher rate than blacks, their opportunity costs are higher. Bazelon testified that the burden is actually greater on African-American voters, because despite the lower actual costs, the amount expended represents a higher proportion of household wealth. In Texas, the average African-American household wealth totals $11,961, while the average white household wealth totals $97,800. The travel costs for African Americans represent a share of wealth four times greater than the travel costs for whites.
• Clay Reed conducted the cross-examination for the State of Texas. Bazelon stated that he did not remove from his analysis registered voters who were over 65 and therefore eligible to vote by mail. Reed pointed out that the cost of a Texas birth certificate has been lowered to $2 or $3 for individuals seeking it to obtain an EIC. Bazelon stated that his analysis does not break out individual-level data, and does not discuss the circumstances of any individual involved in the case.

To conclude the morning, testimony from the deposition of Estela Espinosa, an affected voter, was read into the record.

• Espinosa has lived in Raymondville since 1970. She used to work as an adult care provider. Because of illness, she has had to have several surgeries on her kidneys, and she is now disabled.
• She votes every year, and she always votes in person. She recalls how her parents would talk to her and her siblings about voting, and tell them it was very important to vote.
• When she voted in March 2014, she was not asked to present a photo ID. Espinosa has a Texas driver’s license that expired in 2009. She did not renew it and does not plan to renew it because she no longer drives, due to her disability. Espinosa also has a voter registration card.