(Un)Civil Rights: Texas claims colorblindness to the Justice Department

February 15, 2012

Civil Rights Theme

(Editor’s note: February is Black History Month, and the struggle for civil rights is a big part of that history.  Throughout the month of February, we’ll be looking at contemporary civil rights disputes, especially legal ones.)

For the first week’s post on Texas’s redistricting lawsuit, click here.

For the second week’s post on Shelby County, Alabama’s constitutional challenge to Section 5, click here.

It seems that the state of Texas is taking a page from the playbook of Stephen Colbert.

Colbert’s character on the eponymous The Colbert Report often asserts that he is racially colorblind, so much so that he is unable to recognize his own racial heritage.

These assertions are typically followed by supporting statements such as, “People tell me I’m white and I believe them because police officers call me ‘sir’,” and, “People tell me I’m white, and I believe them, because I own a lot of Jimmy Buffett albums.”

Texas, likewise, claims it is racially colorblind, at least in regards to its voting records.

The difference here, though, is that Texas isn’t joking.

Texas is making its colorblind contention in response to the U.S. Department of Justice’s (DoJ) request for race and ethnicity information relating to voter records and photo IDs.

Texas is claiming that it is “colorblind” in that it doesn’t collect race and ethnicity information about voters.

Why does the Justice Department want this information?

Because Texas was one of many states in 2011 that passed voter ID laws – laws requiring voters to present specific, government-issued voter ID as a requisite to voting.

Since this is a change in voting laws, and because Texas is a “covered jurisdiction” under Section 5 of the Voting Rights Act, Texas needs to obtain preclearance from the DoJ before such legal changes can take effect (see the two previous posts on this topic for a fuller explanation).

For Texas to get preclearance, it needs to demonstrate to the DoJ that “the proposed changes have neither the purpose nor effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group.”

So you can see why the Justice Department would need race and ethnicity information about Texas’s voters, along with information about how many of them have valid photo IDs.

Even if it did have such information, though, it is unlikely that Texas would want to release it to the DoJ.

Why?

Because at the end of December 2011, the Department rejected a similar voter ID law out of South Carolina because voter data provided by the state showed that minority voters were 20% more likely than white voters to lack a valid photo ID.

Given Texas’s high Hispanic immigration population, it is very likely that this disparity would be even more pronounced in the Lone Star State.

Recognizing the futility of collecting this information for preclearance purposes, Texas is just suing the Department instead, claiming that voter ID laws aren’t actually subject to Section 5.

Texas relies primarily on the 2008 Supreme Court decision Crawford v. Marion County Election Board (for a brief discussion of the opinion, check out this post).

Citing Crawford, Texas’s complaint commits several pages to discussing how voter ID laws don’t “deny” or “abridge” anyone’s right to vote, and how Texas’s in particular entails only “minor inconveniences.”

What the Crawford opinion actually says, however, is that the burden imposed by voter ID laws is sufficiently low to be counterbalanced by the state’s interest in preventing voter fraud.

They are still a burden (or “abridgment”).

And unfortunately, Texas didn’t include in its preclearance application any factual instances of in-person voter fraud, nor provide any statistics or data demonstrating that such a problem even exists.

Either way, the Justice Department has wide discretion to determine what exactly constitutes a denial or abridgment of voting rights, and courts are usually very unwilling to interfere.

Texas seems to be prepared for that possibility, though.

The last third of the complaint argues that the court must agree with its contentions in order to avoid “grave constitutional question[s]” that would overturn Section 5 in its entirety.

Alas, most or all of these “grave constitutional questions” have been tried before, and were unsuccessful.

Even if the complaint presented a novel “grave constitutional question,” Texas is grossly underestimating the judiciary’s unparalleled ability to avoid touching issues that it just doesn’t want to deal with.

Although Stephen Colbert may be able to get some mileage on his show with his claims of colorblindness, Texas is unlikely to get anywhere, either with the Department of Justice or the courts, by making the same claim.