Page 73 - Impact: Collected Essays on the Threat of Economic Inequality

Inequality and the Texas Photo ID Law
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By J. Gerald Hebert1
This essay examines the significant role that evidence of inequality played in the legal challenge to the Texas photo ID law (“Senate Bill 14” or “SB 14”) enacted in 2011 .2 This law, the most restrictive photo ID law in the nation, requires all Texas voters to present one of seven specified types of photo ID, such as a driver’s license or a passport . The list of acceptable IDs is very limited and targeted to benefit Anglo voters and disadvantage poor and minority voters . For instance, although the law allows voters to present a concealed handgun permit—disproportionately held by Anglos—the law does not allow voters to present a student ID or a state- or federal-government employee ID—all disproportionately held by minorities . According to unrefuted expert witness testimony, over 600,000 registered Texas voters lack SB 14-compliant ID .
Although Texas created a new form of photo ID, the supposedly free Election Identification Certificate (“EIC”), for voters lacking SB 14 IDs, these EICs are available only at Department of Public Safety (“DPS”) offices, which are often located far from public transportation and urban areas . Moreover, every EIC applicant must show an accurate certified copy of his or her birth certificate . Acquiring such a certificate generally requires visiting a county records office (or, if the voter was born outside Texas, contacting and perhaps even visiting their state and county of birth) . Until very recently Texas charged everyone seeking a certified birth certificate at least $2 (some had to pay over $50) . The Texas Legislature passed a law in late May 2015 that has purportedly waived these fees for voters born in Texas who know to ask at the county records office for a reduced-cost election birth certificate, but that law provides no benefit to voters born outside Texas and still requires voters seeking certified birth certificates to know about the reduced-cost option, visit county records offices in person, and ask .3
The lawsuit challenging S .B . 14, Veasey v. Abbott, is currently pending before the United States Court of Appeals for the Fifth Circuit .4 Most of the press coverage regarding photo ID laws has discussed either how those measures will affect election results or whether those measures have racially disparate impacts . The Texas case illustrates a third important theme: how the poor, who are disproportionately minorities in Texas, are especially burdened and harmed by laws such as photo ID requirements . In her opinion invalidating the law, U .S . District Court Judge Nelva Gonzales Ramos found that “SB 14 disproportionately burdens the poor,” noting that “[t]he draconian voting requirements imposed by SB 14 will disproportionately impact low-income Texans because they are less likely to own or need one of the seven qualified IDs to navigate their lives .”5
1 J. Gerald Hebert is currently an Adjunct Professor of Law at New York Law School. He holds the same position at Georgetown University Law Center. Mr. Hebert serves as Executive Director and Director of Litigation at the Campaign Legal Center in Washington, D.C. From 1973 to 1994, Mr. Hebert served as an attorney in the Civil Rights Division of the U.S. Department of Justice.
2 Texas S.B. No. 14 (2011), available at http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=82R&Bill=SB14.
3 Texas S.B. 983 (2015), available at http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=84R&Bill=SB983
(amending Section 191.0046 of the Texas Health and Safety Code).
4 As a matter of full disclosure, I serve as co-counsel to the lead plaintiffs (Congressman Marc Veasey, et al.) in the consolidated lawsuits Veasey v. Abbott, challenging the Texas photo ID law. Many of the points made in this essay were derived from Plaintiffs’ Proposed Findings of Fact filed in those consolidated cases.
5 Veasey v. Perry, No. 13-CV-193, 2014 U.S. Dist. LEXIS 144080, at *24 (S.D. Tex. Oct. 9, 2014). An emergency stay was immediately sought by Texas. Based on then-upcoming elections, without addressing the merits of the case, the Fifth Circuit Court of Appeals granted a stay pending appeal, Veasey v. Perry, 769 F.3d 890, 895 (5th Cir. 2014), which the Supreme Court declined to lift, Veasey v. Perry, 135 S. Ct. 9 (2014). Under FRCP 25(d), Greg Abbott was automatically substituted for Rick Perry upon Abbott’s election as Governor and thus the style of the case is now Veasey v. Abbott.
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