Texas Photo ID Trial Update: Closing Arguments IV

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.

Adam Aston delivered closing arguments for the State of Texas.

• Aston stated that the Supreme Court in Crawford v. Marion County and the Seventh Circuit in Frank v. Walker have confirmed that you can legally require a photo ID to vote. He stated that courts have concluded that detecting and preventing voter fraud, cleaning up voter rolls, and increasing the integrity of elections were acceptable justifications for a photo ID requirement, and that those were the three neutral and non-discriminatory goals behind SB 14.
• Regarding the plaintiffs’ Section 2 claim, Aston argued that the plaintiffs must prove that SB 14 denies or abridges the right to vote because of race. Under their constitutional claim, the plaintiffs must show that SB 14 was enacted with the intent to discriminate. In order to prove discriminatory intent, the plaintiffs must demonstrate that the decision in question was made because of, not just in spite of, its effects on a racial group.
• Aston argued that under the standard set by Crawford, the plaintiffs’ burden is particularly heavy given their facial challenge to SB 14. He stated that at least 95.5% of Texan voters already possess SB 14 ID, and for people that need ID, they just need to gather documentation, go to the Department of Public Safety (DPS), and get their photograph taken. Aston argues that this is not a substantial burden under Crawford.
• He stated that Texas took care in developing SB 14 to mitigate any burden it may have on some voters: disabled individuals can vote in person without ID, and disabled people or people over 65 can also vote by mail without ID. To obtain an Election Identification Certifictation (EIC) Birth Certificate, the cost is only $2 to $3. Aston said that the state is committed to ensuring Texans can vote, and that it’s because of Texans like the witnesses presented in this case that the state carefully crafted and enacted SB 14.
• Aston argued that SB 14 won’t stop a single one of the 17 individual witnesses in this case from voting. He gave an example of Ruby Barber, who was issued an EIC even though she lacked a birth certificate. Aston pointed out that Mr. Trotter, another witness, has voted by mail in the past and will use an expired driver’s license to vote in future and eventually to get a new ID. He also stated that Ms. Washington has voted with her new ID already, that Floyd Carrier can vote with his veterans ID, and that Ms. Lara has used her driver’s license to vote in three elections without incident. Aston said that Sammie Bates can vote by mail and is working toward getting a Texas ID. Aston noted that witnesses Espinosa, Gholar, Gandy, and Taylor can all vote by mail.
• Aston stated that through the EIC program and the vote-by-mail option, Texas has provided accommodations for voters who might face a somewhat heavier burden under SB 14.
• He argued that Texas’ efforts to educate voters and provide accommodations are ongoing: DPS megacenters are still being built, mobile EIC units are still in effect, and there are now no counties where you cannot obtain an EIC.
• He stated that the Secretary of State’s office receives many complaints and feedback from voters, but that voters haven’t complained about disenfranchisement due to the implementation of SB 14. Aston highlighted the testimony of Carolyn Guidry, the Jefferson County Clerk, who testified that her county has not experienced problems in implementing SB 14.
• Aston argued that the Department of Justice didn’t try to locate and speak with the people who came up on Prof. Ansolabehere’s no-match list as lacking SB 14 ID because the DOJ knew that if they reached out to those people they would find out that they actually could vote, and didn’t lack acceptable ID.
• Aston provided six reasons why Dr. Ansolabehere’s no-match analysis was unreliable. He stated that Ansolabehere’s list lacks full social security numbers, that there were inconsistencies of data across the fields, that in the TEAM database many voters have impossible birth date, that deceased people, felons, and people who have moved out of Texas are still on list, that the race data was unreliable because the Secretary of State does not record it, and that Ansolabehere didn’t attempt to identify false matches on the list even though techniques are available to do so. He also stated that more than 27,000 of the people on the list Dr. Ansolabehere created estimating the number of people without SB 14 ID have voted in at least one election since SB 14, many in person. He also stated that Ansolabehere did not remove from his no-match list people who were exempt due to disability, or who could vote by mail.
• Aston stated that Barreto, another expert for the plaintiffs in this case, weighted his survey incorrectly. This conclusion was reached by Texas’s expert, who said that Barreto inflated minority numbers by doing so.
• Aston argued that Chatman, another plaintiffs’ expert, made assumptions designed to maximize the travel burden found in his analysis, and that he calculated travel times during rush hour for public transit, but not during rush hour for cars. He stated that Webster, another expert for the plaintiffs who looked at travel times, used old ACS data for his analysis and also calculated travel times during rush hour.
• He pointed out that Bazelon, an expert who conducted an economic analysis, actually found higher costs for whites and for African Americans for obtaining EIC, both in terms of actual numbers and actual daily wage.
• Aston stated that a review of SB 14 comes down to a review of the facts vs. statistical guesses. He stated that the statistics put forth by plaintiffs can be used to support claims, but can’t be used to create hypothetical plaintiffs, and they can’t identify any actual voters prevented from voting by SB 14. He argued that the evidence falls far short of showing that SB 14 will abridge or deny right to vote, or that it will do so on account of race.
• In terms of the state interests served by SB 14, Aston argued that preventing voter fraud provides a neutral and non-discriminatory reason for requiring photo ID. He stated that in the four consecutive legislative sessions where photo ID bills were considered, the public record demonstrates that the legislature was motivated by a desire to detect and deter fraud. He stated that in-person voter fraud may be rare, but it has occurred in Texas, and two witnesses, Lori Minnite and Maj. Forrest Mitchell, testified that they were aware of instances of such fraud. Aston argued that in the Crawford case, the Supreme Court stated that no showing of in-person voter fraud in the state is required to demonstrate a legitimate state interest.
• He stated that bloated registration rolls can lead to voter fraud, as demonstrated by cases in which that has happened, and that SB 14 helps address this issue. Maintaining accurate voter rolls provides another neutral and non-discriminatory reason for a photo ID requirement.
• Aston stated that the Supreme Court has also recognized that voter confidence in the electoral system is an independent state interest, and that the legislative record here shows that this was another one of the considerations when Texas adopted SB 14.
• As to the responsiveness of the legislature to concerns about photo ID, Aston pointed out that the legislature adopted several amendments put forth by Democrats, such as Senator Hinojosa’s license to carry amendment and Senator Wendy Davis’s substantially similar name amendment. He argued that amendments to accept student IDs for voting were not accepted because many student IDs do not have an address, an expiration date, or a signature.
• Aston highlighted that polls from the time of passage of SB 14 show that Texans of all races supported photo ID to vote, and that legislators who testified for the plaintiffs were aware of no discriminatory motive on behalf of SB 14 proponents.
• Aston concluded by addressing plaintiffs’ requested remedy. He stated that, even under the assumption that the burden on voters is not justified by the state’s interests, that wouldn’t justify striking down the entire statute. He stated that the election has already begun, in a real sense, and that changes at this late stage would create confusion for voters and poll workers alike. He also pointed out that SB 14 contains a severability clause allowing any potentially problematic portions to be severed from the law, while the law itself remains in effect.