Last Thursday, a three-judge federal court in Washington, DC refused to clear Texas’ new voter ID law under Section 5 of the Voting Rights Act (VRA). The decision sets up an appeal to the U.S. Supreme Court – though likely not before the 2012 election – during which the constitutionality of Section 5 of the VRA is certain to come under challenge. The constitutional argument about the VRA has many facets, but the Texas case’s treatment of data about voter ID is as good an example as any of why the Act – and in particular, Section 5 – is generating so much heat lately. We’ve covered the data issues involved in voter ID many times on this blog – and both sides in the Texas case did the same. For its part, Texas produced an expert who submitted testimony suggesting that 1) a comparison with voting rates in Indiana and Georgia showed that Texas voters (especially minority voters) would not be prevented from voting because of ID and 2) minority voters possess ID at the same rates as all voters. The Justice Department countered with an expert who used matching data to determine that minority voters were more likely to lack the required ID to vote.
Interestingly, the court rejected all of this testimony. Citing methodological flaws (over-reliance on survey research here, under-reliance on relevant data sets there, etc.) the court summarized its own evidentiary findings thusly:
Contrary to Texas’s contentions, nothing in existing social science literature speaks conclusively to the effect of photo ID requirements on voter turnout. Moreover, scant lessons, if any, can be drawn from Indiana and Georgia, largely because [Texas’ law] is more restrictive than the photo ID laws adopted by either of those states. Finally, no party has submitted reliable evidence as to the number of Texas voters who lack photo ID, much less the rate of ID possession among different racial groups. (p. 44)
This is where it got interesting. Unlike the court challenges in Indiana and Georgia – where the burden of proof was on the plaintiffs – the Texas case required the state to carry the burden of proof that that its ID law would not result in “retrogression” of minority voting rights in violation of the VRA.