The Austin Chronicle

Point Austin: 'No Bueno'

Court says the Lege still trampling on voting rights

By Michael King, September 7, 2012, News

A law that forces poorer citizens to choose between their wages and their franchise unquestionably denies or abridges their right to vote. – U.S. District Court opinion in Texas Voter ID case

You've got to hand it to Gov. Rick Perry. As his meteoric appearance on the national stage confirmed, he has a real knack for saying exactly the wrong thing. The latest example was his response to the recent D.C. district court decision in the Texas Voter ID case: "Chalk up another victory for fraud." In a statement characteristic of the governor for its combination of dishonesty and belligerence, he continued: "Today, federal judges subverted the will of the people of Texas, and undermined our effort to ensure fair and accurate elections."

Very few people actually read judicial opinions, of course – it can be a mind-fracking exercise – so few will realize that the court's ruling, like the almost simultaneous one on Texas redistricting (same court, different panel), is in fact a detailed exposure of fraud: both the legislative fraud of imposing unnecessary and burdensome rules upon the constitutional right of voting, and the more literal Republican fraud of pretending that the real intention is to "ensure fair and accurate elections." In both cases, the court put the lie to each of these pretensions. Indeed, it was a bad week for dishonesty – and a good one for civil and human rights.

In its arguments before the court, the state of Texas complained that it was being asked to carry the "impossible burden" of showing no discriminatory intent in enacting the law (as the Voting Rights Act requires). The judges were unimpressed: "This may well be correct," they responded, "but Texas's lawyers have only their client to blame. The State of Texas enacted a voter ID law that – at least to our knowledge – is the most stringent in the country. That law will almost certainly have retrogressive effect: it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty. And crucially, the Texas legislature defeated several amendments that could have made this a far closer case."

The opinion goes on to itemize amendments rejected by the GOP majority that would have eased the effects on poor people and minorities: waiving fees, allowing a greater range of IDs, longer DPS office hours, even provisional ballots. "Put another way, if counsel faced an 'impossible burden,' it was because of the law Texas enacted – nothing more, nothing less."

Hide the Evidence

The court made it clear that had the Legislature wished to diminish the evidence of discriminatory intent, it could have easily done so. Instead, the majority chose to do its worst, with an ID law more explicitly restrictive than its predecessors in Georgia and Indiana. The ruling in the much more complicated redistricting case rejected the GOP-drawn maps for Congress, state House, and state Senate, and also did not mince words about the map-drawers' intentions. Speaking of the congressional maps, the judges wrote, "Although we have already concluded that the Congressional Plan cannot be precleared under section 5's effect prong [i.e., for discriminatory effects], we are also persuaded by the totality of the evidence that the plan was enacted with discriminatory intent."

The testimony had reflected that legislators had worked in secret, rejected input from Democrats, gutted minority districts, and even lied to legislators who asked to see the maps in advance of adoption. One veteran GOP mapmaker testified he had no idea that the mapping software could show detailed racial data; the court found his testimony "not credible."

My own favorite bit of evidence was an email exchange asking a mapmaker if he couldn't just prepare the to-be-approved maps before any Democratic amendments could even be offered. He responded: "No bueno. RedAppl [the redistricting software Texas used] time stamps everything when it assigns a plan. Doing [the Committee Report on] Thursday would create [a] paper trail that some amendments were not going to be considered at all. Don't think this is a good idea for preclearance. Best approach is to do it afterwards and we'll go as fast as possible."

In other words, we shouldn't try to back-date the fraud, because the judges might notice. For the sake of appearances, let's just pretend to follow the law.

The Austin Example

Much like Bernie Madoff, the Repub­licans have been caught with their hands in the till. Attorney General Greg Abbott says he will appeal to the Supreme Court – and who knows, perhaps he'll have better luck with justices audibly itching to gut the VRA. In the meantime, for November we'll be stuck with the interim maps drawn by a San Antonio federal court, based in part on the rejected maps and therefore still weighted against the minority voters who were responsible for nearly 90% of the last decade's population growth in Texas.

In a narrow, pragmatic sense, one can't blame the Republicans. Their only hope of holding on to power into the next decade is to pretend Hispanic and African-American voters don't exist – at least not on an equal playing field with Anglo suburbanites. The alternative would be to become a party of inclusion. But that train left the station in Tampa, where immigration and welfare (read Hispanics and African-Americans) were once again the prime-time featured whipping boys.

In that light, the court's spirited discussion of Travis County, and our unlikely (for Southerners) habit of cross-racial coalition voting is encouraging – although not all the judges were convinced. But if Texas is ever to escape its VRA purgatory of having to prove it is not discriminating against minority voters, one good step would be to return our congressional seat to Austin.

Redistricting Opinion and Voter ID Opinion. Follow @PointAustin.

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