Keith Ingram, Esq.
Director of Elections
P.O. Box 12060
Austin, Texas 78711-2060
Dear Mr. Ingram:
This refers to Chapter 123 (S.B. 14) (2011), which amends the Texas Transportation
Code relating to the issuance of election identification certificates, and
which amends the Texas Election Code relating to the procedures for the
implementing the photographic identification requirements, including
registration procedures, provisional-ballot procedures, notice requirements,
and education and training requirements, for the State of Texas, submitted to
the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, 42
U.S.C. 1973c. We received your response to our January 9, 2012 follow-up to our
September 23, 2011 request for additional information on January 12, 2012; additional
information was received through February 17, 2012.
According to the 2010 Census, the State of Texas had a total population of 25,145,561,
of whom 9,460,921 (37.6%) were Hispanic, 2,975,739 (11.8%) were black, 1,027,956 (4.1%)
were Asian, and 11,397,345 (45.3%) were Anglo. Texas's total voting-age population was
18,279,737, of whom 6,143,144 (33.6%) were Hispanic, 2,102,474 (11.5%) were black,
758,636 (4.2%) were Asian, and 9,074,684 (49.6%) were Anglo. The five-year aggregate
American Community Survey (2006-2010) estimates that Texas had a Hispanic citizen voting-age
population of 25.5 percent.
We have carefully considered the information you have
provided, as well as census data, comments and information from other
interested parties, and other information, including the state's previous
submissions. Under Section 5, the Attorney General must determine whether the
submitting authority has met its burden of showing that the proposed changes have
neither the purpose nor the effect of denying or abridging the right to vote on
account of race or color or membership in a language minority group. Georgia v.
United States, 411 U.S. 526 (1973); Procedures for the Administration of
Section 5 of the Voting Rights Act of 1965, 28. C.F.R. 51.52(c). With regard to
Sections 9 and 14 of S.B. 14, concerning photographic identification 51.52(c). With
regard to Section 9 and 14 of S.B. 14, concerning photographic identification
requirements for in-person voting and acceptable forms of photographic identification,
I cannot conclude that the state has sustained its burden under Section 5 of the
Voting Rights Act. Therefore, on behalf of the Attorney General, I must object to
Sections 9 and 14 of S.B. 14.
We start our analysis recognizing the state's legitimate interest in preventing voter
fraud and safeguarding voter confidence. Crawford v. Marion County Election
Bd., 553 U.S. 181 (2008). In that vein, the state's sole justifications for changing
the current practice to require photographic identification to vote in person that appear
in the legislative proceedings and are presented in its submission are to ensure
electoral integrity and deter ineligible voters from voting. At the same time, we
note that the state's submission did not include evidence of significant in-person
voter impersonation not already addressed by the state's existing laws.
The voting changes at issue must be measured against the benchmark practice to
determine whether they would "lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the electoral franchise." Beer
v. United States, 425 U.S. 130, 141 (1976). In support of its position
that this proposed requirement will not have such a prohibited effect, the state
provided two sets of registered-voter data, which were matched with two different
data sources maintained by the state's Department of Public Safety (DPS). One set
was current as of September 6, 2011, and the other as of early January 2012. The
September data reported that there were 12,780,841 registered voters, of whom
2,785,277 (21.8%) were Hispanic. The January data reported that there were 12,892,280
registered voters, of whom 2,810,869 (21.8%) were Hispanic.
There is, however, a significant difference between the two data sets with regard
to the number and characteristics of those registered voters without a driver's license
or personal identification card issued by DPS. The September data indicate that 603,892 (4.7%)
of the state's registered voters do not have such identification; this population consists
of 174, 866 voters (29.0% of the 603,892 voters) who are Hispanic and 429,026 voters
(71.0%) who are non-Hispanic. The January data indicate that 795,955 (6.2%) of the
state's registered voters do not have such identification; this population consists of
304,389 voters (38.2%) who are Hispanic and 491,566 voters (61.8%) who are non-Hispanic.
The state has not provided an explanation for the disparate results. More significantly,
it declined to offer an opinion on which of the two data sets is more accurate.
Accordingly, we have considered both in reviewing your submission.
Starting our analysis with the September data set, 6.3 percent Hispanic registered
voters do not have the forms of identification described above, but only 4.3 percent
on non-Hispanic registered voters are similarly situated. Therefore, a Hispanic
voter is 46.5 percent more likely than a non-Hispanic voter to lack these forms of
identification. In addition, although Hispanic voters represent only 21.8 percent of
the registered voters in the state, Hispanic voters represent fully 29.0 percent of
the registered voters without such identification.
Our analysis of the January data indicates that 10.8 percent of Hispanic registered
voters do not have a driver's license or personal identification card issued by DPS,
but only 4.9 percent of non-Hispanic registered voters do not have such identification.
So, Hispanic registered voters are more than twice as likely as non-Hispanic registered
voters to lack such identification. Under are more than twice as likely as non-Hispanic registered voters to lack such identification. Under the data provided in
January, Hispanics make up only 21.8 percent of all registered voters, but fully
38.2 percent of the registered voters who lack these forms of identification.
Thus, we conclude that the total number of registered voters who lack a driver's
license or personal identification card issued by DPS could range from 603,892 to
795,955. The disparity between the percentages of Hispanics and non-Hispanics who
lack these forms of identification ranges from 46.5 to 120.0 percent. That is, according
to the state's own data, a Hispanic registered voter is at least 46.5 percent, and
potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this
identification. Even using the data most favorable to the state, Hispanics disproportionately
lack either a driver's license or a personal identification card issued by DPS, and that
disparity is statistically significant.
The state has provided no data on whether African American or Asian registered voters
are also disproportionately affected by S.B. 14.
Sections 9 and 14 of S.B. 14 would also permit a voter to vote in person using
military photographic identification, a United States citizenship certificate that
contains the person's photograph, a United States passport, or a license to carry a
concealed handgun. The state has produced no data showing what percent of registered
voters lack a driver's license or personal identification card issued by DPS but do
possess another allowable form of photographic identification. Nor has the state
provided any data on the demographic makeup of such voters. In addition, when the
Texas Legislature was considering S.B. 14, there were a number of legislative
proposals to expand the forms of identification that could be used by voters to meet
this new requirement - including proposals to allow any state-issued or tribal
identification with a photograph to be used for regular voting - but these
proposals were rejected.
In view of the statistical evidence illustrating the impact of S.B. 14 on Hispanic
registered voters, we turn to those steps that the state has identified it will take
to mitigate that effect.
You have informed us that the DPS-issued "free" election identification certificate, which
is proposed to be implemented by Section 20 of S.B. 14, would protect voters who do not
already have another acceptable form of identification. The application process for
these certificates will mirror the manner in which a person obtains a driver's license.
First-time applicants will be required to furnish various supplemental documents and undergo
an application process that includes fingerprinting and traveling to a driver's license office.
An applicant for an election identification certificate will be required to provide two
pieces of secondary identification, or one piece of secondary identification and two
supporting documents. If a voter does not possess any of these documents, the least
expensive option will be to spend $22 on a copy of the voter's birth certificate. There
is a statistically significant correlation between the Hispanic population percentage
of a county and the percentage of a county's population that lives below the poverty line.
The legislature tabled amendments that would have prohibited state agencies from charging
for any underlying documents needed to obtain an acceptable form of photographic identification.
As noted above, an applicant for an election identification certificate will have to travel
to a driver's license office. This raises three discrete issues. First, according to the
most recent American Community Survey three-year estimates, 7.3 percent of Hispanic or
Latino households do not have an available vehicle, as compared with only 3.8 percent of
non-Hispanic white households that lack an available vehicle. Statistically significant
correlations exist between the Hispanic voting-age population percentage of a county, and
the percentage of occupied housing units without a vehicle.
Second, in 81 of the state's 254 counties, there are no operational driver's license
offices. The disparity in the rates between Hispanics and non-Hispanics with regard to
the possession of either a driver's license or personal identification card issued by DPS
is particularly stark in counties without driver's license offices. According to the
September 2011 data, 10.0 percent of Hispanics in counties without driver's license offices do
not have either form of identification, compared to 5.5 percent of non-Hispanics.
According to the January 2012 data, that comparison is 14.6 percent of Hispanics in counties
without driver's license offices, as compared to 8.8 percent of non-Hispanics.
During the legislative hearings, one senator stated that some voters in his district could have
to travel up to 176 miles roundtrip in order to reach a driver's license office. The
legislature tabled amendments that would have, for example, provided reimbursement to
voters who live below the poverty line for travel expenses incurred in applying for the
The third and final point is the limited hours that such offices are open. Only, 49 of
the 221 currently open driver's license offices across the state have extended hours. Even
Senator Troy Fraser, the primary author of this legislation in the Senate, acknowledged
during the legislative hearing that, "You gotta work to make sure that [DPS offices] are
open." Despite the apparent recognition of the situation, the legislature tabled an
amendment that would have required driver's license offices to be open until 7:00 p.m.
or later on at least one weekday and during four or more hours on at least two Saturdays
The legislation mandates a statewide voter-education effort concerning the new identification
requirement, but does not provide specific standards for the program. The state, however,
has yet to approve a final version of the materials designed to accomplish that goal,
either for voters or for election officials. The state has indicated that it will implement a
new educational program; but as of this date, our information indicates that the currently
proposed plan will incorporate the new identification requirement into a general
The legislation requires that poll-worker training materials reflect the new identification
requirements. This is particularly vital because a poll-worker can permit a voter to cast a
ballot if the name as listed on the documentation is "substantially similar to but does not
match exactly" the name on the voter registration list, and if the voter also submits an
affidavit stating that he or she is the person on the list of registered voters. Though
the Secretary of State's office has adopted an administrative rule to guide poll-workers in
determining when names are substantially similar, the rule gives poll-workers a great deal of
discretion. The state has provided no enforcement guidelines to prevent the vagueness of
this standard from leading to inconsistency or bias in its application.
Even after submitting the data that show over 600,000 registered voters do not have either
a driver's license or personal identification card issued by DPS - and that a disproportionate
share of those registered voters are Hispanic - the state has failed to propose, much less
adopt, any program for individuals who have to travel a significant distance to a DPS
office, who have limited access to transportation, or who are unable to get to a DPS office
during their hours of operation. This failure is particularly noteworthy given Texas's
georgraphy and demographics, which arguably make the necessity for mitigating measures
greater that in other states. The state also has not developed any specific proposals
to educate either voters about how to comply with the new identification requirement or
poll officials about how to enforce the proposed change.
In conclusion, the state has not met its burden of proving that, when compared to the benchmark,
the proposed requirement will not have a retrogressive effect, or that nay specific
features of the proposed law will prevent or mitigate that retrogression. Additionally, the
state has failed to demonstrate why it could not meet its stated goals of ensuring
electoral integrity and deterring ineligible voters from voting in a manner that would have
avoided this retrogressive effect. Because we conclude that the state has failed to meet its
burden of demonstrating that the proposed law will not have a retrogressive effect, we do not
make any determination as to whether the state has established that the proposed changes were
adopted with no discriminatory purpose.
Under Section 5 of the Voting Rights Act, the submitting authority has the burden of showing
that a submitted change has neither a discriminatory purpose nor a discriminatory effect.
Georgia v. United States, 411 U.S. 526 (1973); 28 C.F.R. 51.52. In light of
the considerations discussed above, I cannot conclude that your burden has been sustained in this
instance. Therefore, on behalf of the Attorney General, I must object to the changes affecting
voting that are occasioned by Sections 9 and 14 of Chapter 123 (S.B. 14) (2011). Sections 1 - 8,
10 through 13, 15, and 17 through 22 of S.B. 14 are directly related to the procedures,
provisional-ballot procedures, notice requirements, and education and training requirements.
Accordingly, no determination by the Attorney General is required or appropriate under Section 5.
28 C.F.R. 51.22 and 51.35.
We note that under Section 5 you have the right to seek a declaratory judgment from the United
States District Court for the District of Columbia that these proposed changes neither have
the purpose nor will have the effect of denying or abridging the right to vote on account of race,
color, or membership in a language minority group. 28 C.F.R. 51.44. In addition, you may request
that the Attorney General reconsider the objection. 28 C.F.R. 51.45. However, until the
objection is withdrawn or a judgment from the United States District Court for the District of
Columbia is obtained, the submitted changes continue to be legally unenforceable. Clark
v. Roemer, 500 U.S. 646 (1991); 29 C.F.R. 51.10. To enable us to meet our responsibility
to enforce the Voting Rights Act, please inform us of the action that the State of Texas plans
to take concerning this matter. If you have any questions, you should contact Robert S. Berman
(202-514-8690), a deputy chief in the Voting Section.
Because the Section 5 status of this legislation is presently before the United States District
Court for the District of Columbia in State of Texas v. Holder, No. 1:12-cv-00128 (D.D.C.), we are
providing the Court and counsel of record with a copy of this letter.
/ s /
Thomas E. Perez
Assistant Attorney General