Indiana prof: ‘Definitely a chance’ that DOJ would reject Texas voter photo ID law

Posted on: January 25th, 2011 by Patrick Brendel 1 Comment

Image by: Matt MahurinAn Indiana election law expert said Texas lawmakers do have reasons to be concerned that proposed voter photo identification legislation — authored by state Sen. Troy Fraser (R-Horseshoe Bay) and based on Indiana law — may fail to meet standards under Section 5 of the Voting Rights Act.

“There is definitely a chance that DOJ [the Department of Justice] would deny preclearance to a photo ID law passed by the state of Texas,” said Michael Pitts, a professor at Indiana University School of Law – Indianapolis.

During debate in the Texas Senate Tuesday, Democrats questioned whether Fraser’s Senate Bill 14 — which is based on Indiana’s law but differs in some ways — would pass muster under Section 5 of the VRA, which singles out some states (including Texas) and forces them to obtain approval from DOJ or a federal judicial panel before making changes that would affect elections. In defense of the bill, Fraser cited the U.S. Supreme Court’s upholding of the law in Indiana (which is not subject to Section 5) and the DOJ’s preclearance of a relatively weaker photo ID law in Georgia (which is under Section 5).

State Sen. Wendy Davis (D-Fort Worth) pointed out that SB14 does not allow a voter to use an expired drivers license to verify identity at the polls, while Indiana does allow a voter to use a drivers license for a period of up to nearly two years after the expiration date (if the license expired in the time period since the most recent general election). Student IDs are also accepted under Indiana law, but not under Fraser’s bill, said state Sen. Rodney Ellis (D-Houston).

Under Indiana law and Fraser’s bill, a voter without a photo ID can cast a provisional ballot that will be considered as long as the voter presents a valid photo ID to the elections administrator within a specified period (six days in Fraser’s bill). However, Indiana also gives voters the option of not presenting a photo ID if — after casting a provisional ballot and returning to the elections office — they sign an affidavit swearing to their identity, and pleading religious objections to having their photo taken or being unable to afford to obtain the necessary documents to secure an ID.

Pitts said the 2005 decision by the DOJ, under the George W. Bush White House, to grant preclearance to Georgia to enact its photo ID law was “controversial” and “subject to criticism.” He said the Barack Obama DOJ might be inclined to act differently, especially if Texas law is stricter than Indiana’s, which is seen as stricter than Georgia’s.

“With a new submission several years later and a different administration, a different decision could be rendered. If Texas’ law is more like Indiana’s law than Georgia’s law, and with many commentators thinking that Indiana’s law is stricter than Georgia’s law, there certainly is a reasonable basis to think that DOJ will take a different approach to a law passed by Texas in the year 2011,” Pitts said.

Pitts’ research showed that hundreds of people showed up without proper ID to vote in Indiana in 2008 and ultimately did not have their ballots counted. It is impossible to determine whether those people were legal voters because of information restrictions, he said.

“We don’t know if the folks who showed up without ID were actually who they said they are,” he said. “We can’t definitely prove that.”

Because of the lack of information, ID proponents argue that those voters may have been acting fraudulently, while ID opponents say Pitts’ research does not include people who never went to go vote because they did not have proper ID.

Pitts urged Texas lawmakers, if they pass a voter photo ID bill, to include a provision that enables researchers to study and quantify the effects of the law.

“My research is a launching-off point to put some empirical data in a place where virtually no empirical data are to be found, but it’s only a start,” Pitts said. “One of the things that would be useful is if a state like Texas, if it is actually going to pass a photo ID law, is to put in some sort of reporting requirement so that the numbers can be collected to figure out exactly what the impact of the law is.”

He said, “One of the biggest lessons of my research is if you’re going to pass the law, make provisions so that the law can be studied so the impact of it can be determined.”

“When it comes to photo ID, there are a lot of ideas out there, but not a lot of empirical data to support arguments on either side of the coin,” Pitts said.

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