Off the Kuff Rotating Header Image

August 30th, 2012:

Federal court refuses to preclear Texas voter ID bill

Another bad day in court for Texas Republicans.

Still the only voter ID anyone should need

A federal three-judge panel on Thursday blocked the Texas voter ID law passed by the Republican Legislature, saying the new restrictions would place an unfair burden on Latinos, racial minorities and the poor.

The ruling by the federal panel is the second blow to Texas in as many days. Another federal panel threw out a Texas redistricting plan earlier this week, saying the Republican leadership failed to show the maps did not discriminate against minorities.

In blocking the Texas voter ID law, the judges said the state enacted a law that would be “the most stringent in the country.”

“It imposes strict, unforgiving burdens on the poor, and racial minorities in Texas,” the judges said.

You can read the full opinion here. I’m a bit pressed for time today, so I’ll just point out the following excerpts from the opinion that to my mind sum this all up as well as can be done. First, via Meteor Blades, there’s this:

To sum everything up: section 5 prohibits covered states from implementing voting laws that will have a retrogressive effect on racial minorities. See Beer, 425 U.S. at 141. Texas, seeking to implement its voter ID law, bears the burden of proof and must therefore show that SB 14 lacks retrogressive effect. Georgia, 411 U.S. at 538. But as we have found, everything Texas has submitted as affirmative evidence is unpersuasive, invalid, or both. Moreover, uncontested record evidence conclusively shows that the implicit costs of obtaining SB 14-qualifying ID will fall most heavily on the poor and that a disproportionately high percentage of African Americans and Hispanics in Texas live in poverty. We therefore conclude that SB 14 is likely to lead to “retrogression in the position of racial minorities with respect to their effectiveexercise of the electoral franchise.” Beer, 425 U.S. at 141. Given this, and given that Texas must show that SB 14 lacks both discriminatory purpose and effect, we have no need to examine whether the law was enacted with discriminatory purpose. Accordingly, we shall deny Texas’s request for declaratory relief.

In reaching this conclusion, we emphasize the narrowness of this opinion. Specifically,
we have decided nothing more than that, in this particular litigation and on this particular record, Texas has failed to demonstrate that its particular voter ID law lacks retrogressive effect. Nothing in this opinion remotely suggests that section 5 bars all covered jurisdictions from implementing photo ID laws. To the contrary, under our reasoning today, such laws might well be precleared if they ensure (1) that all prospective voters can easily obtain free photo ID, and (2) that any underlying documents required to obtain that ID are truly free of charge.

And there’s this from Rick Hasen:

This is a careful, unanimous opinion from a three-judge court which rejects most of the social science evidence submitted by both sides on whether Texas’s voter id law imposes greater burdens on minority voters. Instead, the court bases its analysis on three basically uncontested facts: (1) Minority voters are at least proportionately as likely as white voters in Texas to lack the documents needed for Texas’s new id law (which the Court calls perhaps the most “stringent” in the nation; (2) the new i.d. law will put high burdens on poor people who lack id (many of whom would have to travel up to 200 or 250 miles at their own expense to get the i.d. as well as pay at least $22 for the documents needed to get the i.d.; and (3) minority voters in Texas are more likely to be poor. Using this simple structure, the court concludes that Texas, which bears the burden of proof in a section 5 case, cannot prove its law won’t make the position of protected minorities worse off. And the court suggests this was a problem of its own making: Texas could have made the i.d. law less onerous (as in Georgia, which the court suggests DOJ was probably right to preclear) and Texas could have done more to produce evidence supporting its side at trial, but it engaged in bad trial tactics.

And finally, BOR notes the critical testimony given by two Democratic elected officials.

Reinforcing this proposition, Texas Representative Trey Martinez Fischer, who represents a district which includes the city of San Antonio and its outskirts, testified that “you will not find a DPS office from downtown San Antonio to the western boundary, which is heavily concentrated with African-Americans, and particularly Hispanics.” Trial Tr. 7/10/2012 (AM) 119:23-25. State Senator Carlos Uresti echoed this concern, testifying that in his district-which is “70 percent Hispanic, about 5 percent African American”-“[t]here are some towns . . . where the nearest DPS office is about a 100 to 125 mile[] one way” trip away. Trial Tr. 7/12/2012 (AM) 7:16-8:1. And far from disputing the long travel times imposed by the dearth of DPS offices, Texas’s counsel told us that “I don’t think that the facts of the geographic distances [between DPS offices] are necessarily contested.” Trial Tr. 7/13/2012 52:4-5.

I’ve said multiple times in this space that there were many things the Republicans who pushed this completely needless law could have done to make it less distasteful, less onerous, and ultimately less discriminatory. They did exactly none of those things – indeed, it was a badge of honor to them that the law was as restrictive as it was – and the court called them out on it. The state will appeal to the Supreme Court for an emergency injunction, and there’s still the matter of Section 5 constitutionality, for which there will be a status conference in the next two weeks, but once again, this is a ringing, resounding rejection of an aggressive attempt by Texas Republicans to tilt the field in their favor, as well as another heck of a job by AG Greg Abbott. There are many statements and reactions out there to this ruling, with this one from MALC, the NAACP, and the Brennan Center being the most comprehensive.

Julian Castro is ready for his closeup

Here’s your primer on the rising star, San Antonio Mayor, and DNC keynoter Julian Castro. I’ll let you take it in in all its hagiographic glory, but I’d like to highlight my favorite part, where the authors manage to find someone who Does Not Like Him Very Much and Thinks He Really Isn’t All That:

Mayor Julian Castro

But as Castro’s national stature grows, so does his pool of critics.

“His record of accomplishment is somewhat light,” said Matt Mackowiak, an Austin-based GOP political consultant.

Mackowiak, who worked for Hutchison, said Castro’s speaking role is primarily about identity politics.

“It’s more about Latinos than it is about Castro,” he said. “It will be the largest thing he has ever done, and it could be the biggest thing he will ever do.”

Castro also runs the risk, Mackowiak said, of giving a red-meat speech to the Democratic base that could alienate moderate Texas voters in a future gubernatorial run – not that Castro has said he’d seek the seat.

The consultant accuses Castro of being an Obama surrogate rather than someone who focuses on some of San Antonio’s pressing issues.

“He seems to be someone who is extraordinarily focused on politics and ambition and not problem-solving,” said Mackowiak.

Castro shrugs off the accusation.

“I’ve spent about 95 percent of my time during these last couple of months on the city budget and Pre-K 4 SA,” he said. “That’s just boilerplate junk from a political party.”

Castro’s calendar supports his statement.

Several months’ worth of entries show he’s focused on city business. It’s business as usual: His days are typically packed with meetings – both private and public. He’s also spent – and is scheduled to continue spending – a lot of time meeting with community leaders about the Pre-K 4 SA initiative, on which he’s staked his mayoral tenure.

Yes, hard as it may be to believe, a professional Republican isn’t terribly impressed with Mayor Julian Castro, and he’s willing to say things that perhaps aren’t exactly aligned with the facts to show his lack of impression. I know, I never would have expected that, either. I’d have thought that a member or two of San Antonio’s City Council, or a disgruntled local activist, or maybe a legislator or Bexar County official or some other elected type who has to do business with the city of San Antonio would be a better source for the “but some people are critics” bit of the story. Maybe such people are in short supply, I don’t know. Anyway, concern trolling aside, it’s a good read, so check it out.

Courting the Ron Paul voters

Good luck with that.

Libertarian presidential candidate and would-be spoiler Gary Johnson smoked out new campaign cash here this week.

But his hopes are just a pipe dream unless he wins over Republican voters loyal to never-say-quit candidate Ron Paul.

“Hundreds” of Republicans have promised Johnson they will switch his way if the Republican National Convention nominates Mitt Romney on Aug. 30, Johnson said Thursday.

“That’s hundreds telling me personally, which means how many more?” Johnson said during a six-day Texas campaign swing.

He predicted a “gigantic influx” of support after Romney is nominated.


Yet even before any Paul voters switch, his current 8 to 13 percent of the vote in Western states might be enough to tip pivotal Electoral College votes for or against Romney or President Barack Obama.

If Johnson takes away a swing state Romney badly needs — “then let me be the spoiler,” Johnson said.

This story is actually from two weeks ago. I’d forgotten that I’d drafted something, then had my memory jogged after the Ron Paulrelated kerfuffles this week. To put some context on Johnson’s numbers, there were 174,207 votes cast for Ron Paul in this year’s GOP Presidential primary. That would have represented 2.15% of the 8 million plus votes cast in 2008. That’s not very much, and that’s assuming every known Ron Paul supporter in May did in fact vote for Johnson in November. But even that paltry total towers over the past performances of Libertarian Presidential candidates in Texas:

Year Libertarians Pct =============================== 1992 Marrou/Lord 0.32% 1996 Browne/Jorgenson 0.36% 2000 Browne/Olivier 0.36% 2004 Badnarik/Campagna 0.52% 2008 Barr/Root 0.69%

The Secretary of State data don’t go back any farther than that, but thanks to Dave Liep’s Election Atlas, I can bring you the other two results:

Year Libertarians Pct =============================== 1980 Clark/Koch 0.83% 1988 Paul/Marrou 0.56%

I suppose you can look at Bob Barr’s 2008 performance as having doubled the Libertarian total in only eight years, or as finally getting back towards the high-water mark of 1980. Either way, I’ll bet the under on that 2.15% mark.

The UT admissions lawsuit

I haven’t paid much attention to the latest lawsuit over the University of Texas’ admissions standards and practices – as with school finance lawsuits, I’ve lost count of how many there have been in my lifetime – but there are some interesting issues in this one to be decided.

On its surface, the case of Abigail Noel Fisher v. University of Texas revolves around whether the school’s consideration of race in admissions led to the rejection of a white student.

But as the case nears the Supreme Court’s fall docket, it is also stirring a debate about the impact of affirmative action policies on Asian-American students and casting a spotlight on the stereotype of Asian-Americans as “the model minority.”

On one side, Fisher and her supporters, including the 80-20 National Asian American Educational Foundation, argue that the race-conscious admissions policies discriminate against qualified Asian-American students in favor of less-qualified African-American and Latino students.

On the other side, a coalition of more than 100 Asian-American groups has filed briefs backing the UT-Austin policy, saying it benefits Asian-American students who come from disadvantaged backgrounds.

“UT’s process of individualized review advances its compelling interest in achieving the educational benefits of student diversity, increases the likelihood of admission for those who do not have the same social mobility and capital as others, and has the potential to benefit all Asian-American and Pacific Islander applicants,” a brief filed by the Asian American Legal Defense and Education Fund (AALDEF) states.


Asian-American supporters of the UT policy point out that the bulk of students admitted under the holistic criteria are Asian-Americans and whites.

In 2011, 60 percent of incoming freshmen admitted based on the holistic criteria rather than the top 10 percent rule were white and 16 percent were Asian-American.

By comparison, 10 percent were Hispanic and 3 percent were African American, according to UT enrollment statistics.

“It seems to me that the system works,” said Madeline Y. Hsu, director of the Center for Asian American Studies at UT-Austin.

The lawsuit stems from the fact that Fisher was not admitted to UT in 2008 and was instead forced to attend LSU. I can’t honestly say that I see such a fate as being genuinely injurious to her, but we’ll have to leave that up to the Supremes. The “holistic” policy mentioned came about as a result of the last lawsuit, and it seems like a reasonable approach to me, one that I daresay is employed by numerous private universities. We’ll see what SCOTUS thinks.

Texas blog roundup for the week of August 27

The Texas Progressive Alliance is ready for the new school year as it brings you this week’s roundup.