Edward Garris Posts

In April, we highlighted and explained Texas' own Stand Your Ground Law.  

The story about Stand Your Ground laws continues.  Florida's Stand Your Ground law is widely blamed for the shooting death of Trayvon Martin earlier this year.  Stand Your Ground laws allow people to use lethal force in self-defense in a variety of contexts that are more expansive than those traditionally found in English and American common law .  In short, instead of allowing a person to use deadly force only in their own homes, Stand Your Ground Laws allow a person to use deadly force to defend themselves in a host of other situations in a variety of other places (e.g.: business, vehicle, place of employment, and other locales made appropriate entirely upon ad hoc context).

Proponents of Stand Your Ground Laws claim that such laws make aspiring criminals think twice before committing violence.  They tout the deterrent effect.  As further support, they cite the protection of blameless victims.  They argue, essentially, that the laws save lives, and that even where lives are not saved, the lives lost are the lives with lesser societal value.

Without addressing that last contention, a new study seriously undermines the first contention, that those laws save lives.  The new study, from the Department of Economics at Texas A&M, comes to a devastating conclusion in its first page:

"We find no evidence of deterrence; burglary, robbery, and aggravated assault are unaffected by the laws. On the other hand, we find that murder and non-negligent manslaughter are increased by 7 to 9 percent.  This could represent either increased use of lethal force in self-defense situations, or the escalation of violence in otherwise non-lethal situations.  Regardless, the results indicate that a primary consequence of strengthening self-defense law is increased homicide."

Reacting to the study, Rep. Garnet Coleman (D-Houston), said the following:

"Contrary to the expectations of many lawmakers, the report by Texas A&M University shows that our 'Stand Your Ground' law is ineffective at best and counterproductive at worst. I do not think Texans want their lawmakers in Austin to produce legislation that does not deter felonies and only results in more needless loss of life. It should be startling even to those who originally supported the law they cause an increase in the amount of murder and non-negligent manslaughter by 7 to 9 percent, which 'translates into an additional 500 to 700 homicides per year nationally' across the states that have adopted these laws.

Much like Governor Scott in Florida in the wake of the Trayvon Martin shooting, it is obvious that we here in Texas need to revisit our own flawed legislation. We can and should have an intelligent set of laws on the books that allows Texans to defend themselves and their property without putting the rest of us at risk by giving armed and untrained citizens the license to shoot first and ask questions later. We need laws that reduce crime and loss of life; this study proves that 'Stand Your Ground' laws do just the opposite."

It's an exciting day for people who like civil liberties and who cheer for David over Goliath in the continuing imbalance of electoral power.

The United States Court of Appeals for the First Circuit, the federal appeals court in Boston, ruled that Section 3 of the Defense of Marriage Act ("DOMA") is unconstitutional. DOMA is a law passed by Congress in 1996 as then President Clinton was seeking re-election.  Clinton has since expressed regret about signing DOMA.  DOMA defined marriage as between one man and one woman.  

Additionally, retired SCOTUS Justice John Paul Stevens predicted the eventual demise of the Citizens United decision by the U.S. Supreme Court.

More about DOMA and Citizens United below the jump.
The ruling in the federal appeals court does not strike down all of DOMA.  Rather, it held that Section 3 of DOMA unconstitutionally discriminated against same-sex couples by denying them the same federal benefits which are available to heterosexual couples.

As the appeals court stated early in its unanimous opinion:

"Rather than challenging the right of states to define marriage as they see fit, the appeals contest the right of Congress to undercut the choices made by same-sex couples and by individual states in deciding who can be married to whom."

As the court noted, while a state could actually permit same-sex marriage, same-sex couples could face unpalatable choices and consequences based on their status.

"Notably, it prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C. § 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. § 402(f), (i). DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses."

This landmark appeal arose from two companion cases in Massachusetts - one in which surviving spouses in same-sex couples sought federal benefits, and one in which the state sought to ensure that it continued to receive federal funding for its programs, such as veterans' cemeteries and its state Medicaid program, where the inclusion of same-sex couples under Massachusetts law would render Massachusetts non-compliant and ineligible for federal dollars because of DOMA.

The lower court struck down Section 3 of DOMA in both of these cases and the appeals court today upheld their rulings.  Not surprisingly, the lower court found that Section 3 of DOMA violated the Equal Protection Clause of the Constitution.  Interestingly, though, the lower court did find that Section 3 of DOMA violated the Spending Clause and the Tenth Amendment.  The Spending Clause is actually part of the Taxing and Spending Clause, is found at Article I, Section 8, Clause 1 of the United States Constitution, and reads thus:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States."

The Tenth Amendment goes to states' rights and reads thus:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

What makes this interesting is not necessarily the legal reasoning, but how the legal reasoning would make seemingly strange bedfellows out of the current political landscape.  If the legal reasoning of the federal trial court were to withstand scrutiny at the level of the U.S. Supreme Court - which many speculate is the case's next stop - this would take the definition of marriage out of the hands of the federal government - or at least, severely curtail the federal government's ability to weigh in on the issue.  This would affect both sides of the debate.  It would leave the definition of marriage, and the possibility of gay marriage squarely in the bailiwick of state legislators.  On the one hand, this would encourage gay marriage advocates as it would bar federal lawmakers from banning gay marriage.  On the other hand, it would embolden gay marriage opponents to the frustration of gay marriage advocates as there would be potentially 50 different definitions of marriage - some helpful to gay marriage advocates, and others less likely so. At that point, the best recourse at the federal level for gay marriage advocates would be argument at the U.S. Supreme Court to strike down restrictive state laws as unconstitutional on other grounds.  

The appeals court departed somewhat from the lower court's reasoning in that it did not necessarily apply the strict scrutiny standard found in deciding Equal Protection cases, but it did proceed with a heightened scrutiny of sorts for groups that are affected by legislation and which are historically disadvantaged or unpopular.  Moreover, rather than rely on the state's receipt of federal funding for programs such as Medicaid, the court focused on how federal regulation affected a state's choices in making its own laws concerning marriage.  The court ruled that there was no permissible federal interest supporting the law.  

Today's opinion can be viewed here.

Notably, the court disapproved of one of DOMA's justifications, "moral disapproval" of same-sex marriage, relying on the U.S. Supreme Court's opinion striking down sodomy laws in Lawrence v. Texas, 539 U.S. 558 (2003), an opinion founded on the reasoning of Justice John Paul Stevens, who is our next story.

Citizens United to Fall?

Several media outlets are reporting that retired Justice John Paul Stevens, in a speech yesterday predicted the eventual demise of the Citizens United decision by the U.S. Supreme Court.  Citizens United is widely - and justifiably - scapegoated for the massive influx of corporate and/or secretive money into elections and the rise of SuperPACs.  

In an article in The New York Times yesterday, Adam Liptak reported that in a speech at the University of Arkansas at Little Rock, Stevens stated that the court has boxed itself into a logical corner:

"Justice Stevens questioned whether the majority was prepared to apply one of the principles it had announced in the decision in other contexts. In striking down part of the 2002 McCain-Feingold campaign finance law, the majority said that "the First Amendment generally prohibits the suppression of political speech based on the speaker's identity."

But Justice Stevens said the court has sustained laws that did just that in other settings."

Justice Stevens had written a blistering dissent to the Citizens United opinion.  He had characterized the majority's opinion as a "dramatic break from our past."  He criticized the majority for not deciding the case on narrower grounds where such was possible and even advocated by the parties before the Court.   And he took exception to the majority's  disregard for stare decisis, noting the "role of corporations and unions-and the narrow interests they represent-vis-à-vis the role of political parties-and the broad coalitions they represent-in determining who will hold public office." He wrote:

"At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."

The speech may be viewed here.

Last week, the world received some guidance on how the Texas Voter ID case might play out.  Currently, the Texas Voter ID case is set for trial on July 9 in the federal district court in Washington, D.C.  Among other things, the state of Texas has challenged the constitutionality of the Voting Rights Act (the "Act") which has required Texas to seek preclearance before it can implement the Voter ID law it passed in 2011.  

The Circuit Court of Appeals for the District of Columbia last week struck down another challenge to the constitutionality of the Act, this one brought by Shelby County, Alabama.  

The County claimed that Congress exceeded its enumerated powers when it reauthorized Section 5 of the Act in 2006 - the section that requires that covered jurisdictions obtain preclearance before they can effectuate certain laws pertaining to voting.  

In its challenge to the Act's constitutionality, Alabama made two key arguments: 1) the remedy of preclearance imposed by Section 5 of the Act is not congruent and proportional to the harm (i.e.: the current burdens are not justified by the current needs), and 2) the disparate geographic coverage (i.e.: only a few states and counties are required to get preclearance before implementing new voter laws) is not sufficiently related to the problem it targets.   The D.C. court was not persuaded.  
In a sweeping, historically-minded, soundly-reasoned opinion, the D.C. appeals court rejected the Alabama county's arguments.  Tracing the history of the Republic, the division of powers between state and federal government, the opinion explains the tension between federalism as a safeguard against oppression with states' rights as an instrumentality to uphold slavery.  It recounts the Thirteenth, Fourteenth, and Fifteenth Amendments, as well as Jim Crow, poll taxes, literacy tests, grandfather clauses, and property qualifications, as well as other disenfranchising devices, setting the ground for the passage of the Act in 1965.  

The linchpin of the court's opinion is deference to legislative findings - in short, that Congress is in a better position to decide whether the protections of the Voting Rights Act are still necessary.  The court's role, loosely but not technically stated, is to determine if Congress had the appropriate basis to make the finding it did.  In this case, the Court held that Congress was well within its authority under the Constitution when it reauthorized the provisions of the Voting Rights Act in 2006.  

CONGRESS' MOUNTAIN OF EVIDENCE

In finding that Congress did not exceed its constitutional authority, the court noted a legislative record  "over 15,000 pages in length, and includ[ing] statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination."  That evidence regarded "racial disparities in voter registration, voter turnout, and electoral success; the nature and number of section 5 objections; judicial preclearance suits and section 5 enforcement actions; successful section 2 litigation; the use of "more information requests" and federal election observers; racially polarized voting; and section 5's deterrent effect."  

In deferring to Congressional authority and findings, the court stated that when Congress legislates against discrimination in voting - "one of the gravest evils that Congress can seek to redress" - it is at the apex of its power.  Uniquely:

"Expressly prohibited by the Fifteenth Amendment, racial discrimination in voting is uniquely harmful in several ways: it cannot be remedied by money damages and, as Congress found, lawsuits to enjoin discriminatory voting laws are costly, take years to resolve, and leave those elected under the challenged law with the benefit of incumbency."

The Alabama county argued that Congress still exceeded its powers because the types of disenfranchisement the Act sought to redress are not the types of acts found today.  The court roundly turned on this argument:

"Although such methods may be "more subtle than the visible methods used in 1965," Congress concluded that their "effect and results are the same, namely a diminishing of the minority community's ability to fully participate in the electoral process and to elect their preferred candidates of choice."

In short, the rules may have changed, but the game has not.  

CONTINUED, PERVASIVE DISCRIMINATION

The court went on to cite various instances of disenfranchisement in the last 25 years, some blatant, some insidious, including: abruptly canceling an election, reducing the black population in various districts, reviving dual-registration systems from 1882, creating a new at-large seat on a county board, threatening to prosecute students near an historically black university for illegal voting.   One of those actually happened in Texas in 2004.

Moreover, in reaching its conclusion, Congress relied on evidence of "the tens of thousands of Federal observers that have been dispatched to observe elections in covered jurisdictions"" and had found that many jurisdictions covered by the Act had not sought preclearance for new voting laws, but rather had implemented them anyway, in violation of federal law.

The court summarized Congress' findings thus:

"This brings us, then, to Congress's ultimate conclusion...

• 626 Attorney General objections that blocked discriminatory voting changes;

• 653 successful section 2 cases;

• over 800 proposed voting changes withdrawn or modified in response to MIRs;

• tens of thousands of observers sent to covered jurisdictions;

• 105 successful section 5 enforcement actions;

• 25 unsuccessful judicial preclearance actions;

• and section 5's strong deterrent effect, i.e., "the number of voting changes that have never gone forward as a result of Section 5.""

In short, Section 5 of the Act is still as necessary as ever.

DISPARATE TREATMENT NECESSARY

Are the jurisdictions covered by the Act still the correct ones?  Here, the court answered yes.  Shelby County, Alabama, targeted the formula in the Voting Rights Act, found in Section 4 of the Act, stating that it, too, was outmoded, and that disparate treatment was unwarranted.  Focusing the inquiry on whether the preclearance requirement of the Act covered jurisdictions where unconstitutional voting discrimination was concentrated, the court held that the disparate treatment for certain jurisdictions was still warranted.  

The court especially cited the notion of bailing in or bailing out.  Under bail-in and bailout, jurisdictions which came under the Act at the time of its original passage in 1965 could bail out if they had a clean record concerning voting rights for ten years in a row.  Conversely, jurisdictions whose record had lapsed or had become problematic relative to civil rights could be bailed in and become covered jurisdictions under the Act where they previously had not.

The court cited bail-in and bailout because it emphasized that bail-in and bailout ensured that the Act covered only those jurisdictions which truly required it - those which truly offended voting rights.  The statute, on its face, it congruent and proportional and rationally related to the evil it seeks to remedy.  Moreover, the court noted that the Alabama county had not sought bailout from the Act.  Why?  As it happens, Shelby County was, in fact, one of the jurisdictions which had previously passed and implemented changes to its voting laws without first seeking preclearance under the Act, in clear violation of federal law.  The county would never have received the bailout had it sought it.  Its failure to do so was a tacit admission that it did not, in fact, have a clean voting rights record.  The court was able to point this out - that the county's own actions defeated its argument that it should not be covered under the Act and that Congress had exceeded its authority under the Act.  

As the Texas Voter ID law goes to court in the jurisdiction where the Alabama challenge failed, it is interesting to note that the Alabama case itself had Texas roots.  Shelby County's principal authority was the U.S. Supreme Court case, Northwest Austin Municipal Utility District No. One v. Holder, 129 S.Ct. 2504 (2009).  In that case, the Supreme Court had, in fact, cast doubt on the continued necessity of the Voting Rights Act.  As the D.C. court put it:

"On appeal, the Supreme Court identified two "serious . . . questions" about section 5's continued constitutionality, namely, whether the "current burdens" it imposes are "justified by current needs," and whether its "disparate geographic coverage is sufficiently related to the problem that it targets." Nw. Austin, 129 S. Ct. at 2512-13."

Shelby County tied its arguments to the dicta in the Supreme Court opinion, hoping that authority would secure its case.  In a deft sleight of hand, designed to insulate it from harsh scrutiny and a possible overruling at the U.S. Supreme Court, the panel of D.C. judges also relied on Northwest Austin to entirely undermine the Alabama challenge.  Currently, D.C. does not seem receptive to constitutional challenges to the Act.  It looks fit to survive all comers.  

And, lest we forget, the Supreme Court will soon be weighing in on yet another Texas civil rights case, this one concerning education.

View the opinion here.

See where it all began with the Northwest Austin case.

The case took another turn when Texas Attorney General Greg Abbott dropped his opposition to a number of depositions being taken, as the Austin-American Statesman  reported.

Bell-Metereau, left, and Jennings, right.

In 2010, Judy Jennings and Rebecca Bell-Metereau both ran for seats on the Texas State Board of Education.  They lost.  In 2011, a well-known Republican political operative sued them for a political ad they ran in the 2010 race.  This year, they're running for the SBOE yet again - Jennings for District 10 and Bell-Metereau for District 5. Both are career educators with extensive experience in the field, and would be tremendous assets to our state board of education.

Why, after defeats and prohibitively expensive, ongoing litigation that could drain anyone's war chest, would anyone subject herself to this again? And why would there be lawsuits filed over a race for the State Board of Education?
Two key things answer the first question: Jennings and Bell-Metereau themselves, and a brief history of the SBOE.  

Jennings and Bell-Metereau are educators.  Bell-Metereau is Professor of English and Film and directs the Media Studies Minor at Texas State University.  She was Visiting Professor at the University of Nebraska and University of St. Louis in Senegal, Africa, and worked on helping first-year students transition from high school to college at Texas State.  

Jennings is similarly credentialed in education and education policy.  She was a teaching assistant at the University of Texas at Austin, and earned her Ph.D. in educational psychology while she was working at the Texas Education Agency on accountability issues.  Her resume boasts her specialty in interpreting assessment data, and specifically her role as co-project manager of the Texas Education Agency's (TEA) Texas High School Redesign and Restructuring Grant Program.

The SBOE would seem to have a fairly mundane mission and would seem to be a natural fit for two career educators.  The past few years have borne out neither of those assumptions.

By its own telling, the SBOE plays the following role:

"Establishing policy and providing leadership for the Texas public school system are the responsibilities of the State Board of Education. By adopting policies and setting standards for educational programs, the board provides the direction necessary to enable Texas public schools to prepare today's schoolchildren for a successful future."

"Together the board, the commissioner, and the agency facilitate the operation of a vast public school system consisting of 1,237 school districts and charter schools, more than 8,400 campuses, more than 659,000 educators and other employees, and more than 4.8 million schoolchildren."

The SBOE's functions are divided into three core committees - 1) curriculum and instruction, 2) oversight of the Permanent School Fund, and 3) school initiatives (e.g.: authorizing new charter schools).  Drawing the most scrutiny have been the committees on curriculum and oversight of the Permanent School Fund.  The Permanent School Fund is a $25 billion endowment that funds public schools.  

Curriculum for grade school, junior high, and high school should be fairly straightforward and immune to controversy.  Over the last decade, however, politics crept into the functions and decision making of the SBOE curriculum committee.  Conservative members felt that the curriculum in public schools - and academia itself - reflected liberal bias and needed a correction.  

And correct they did.  By the time the controversy reached a fever pitch in 2010, several subject areas had been or were being revised - English and language arts, science, and social studies and history.  

In 2008, the SBOE revised the English and language arts curriculum.  The curriculum change was in essence a "back to basics" approach.   Board members wanted to separate grammar education from building skills in reading comprehension.  The new curriculum also emphasized learning by phonics.  Supporters advocated these changes because they threw English and language arts education back to American education methods of the 1950s when they were in school.  Opponents wanted to block these changes because they threw English and language arts education back to American education methods of the 1950s.  

At the time, the Houston Chronicle reported criticisms that the standards "ignore[d] at least 50 years of research on grammar instruction."  The standards also reflected a time when success in college (and presumably reading comprehension) was not as directly tied to finding meaningful employment, or employment at all.  

Bell-Metereau, for her part, called the changes "a hatchet job on the language arts curriculum."  She went on, specifically objecting to the revived emphasis on phonics.  "English is not a particularly phonetic language," she said.  As a result, this type of English instruction is "particularly hard for second language learners," and "especially for native Spanish speakers, for example.  It was a move backwards and not an improvement."

The curriculum revisions continued in 2009 with science and unabated with history and social studies in 2010.  As the Wall Street Journal explained in 2009, the SBOE "approved a science curriculum that opens the door for teachers and textbooks to raise doubts about evolution."  

The WSJ further explained:

"For instance, they want textbooks to suggest the theory of evolution is undercut by fossils that show some organisms -- such as ferns -- haven't changed much over millions of years. They also want texts to discuss the explosion of life forms during the Cambrian Era as inconsistent with the incremental march of evolution."

The Big Bang and the age of the universe, considered by the mainstream science community to be well-settled issues, were also opened up for debate in the revisions to the curriculum.  

In early 2010, with several members of the board already voted out in primaries, but still serving out the remainders of their respective terms, the SBOE made changes to the history and social studies curriculum, drawing global attention and derision.  

Jon Stewart and The Daily Show weighed in, naturally.  Even Al-Jazeera sent over correspondents to investigate.  The New York Times filled with reporting and op-ed pieces.  

Thomas Jefferson disappeared from the curriculum as an Enlightenment thinker, reportedly because he had advocated for and believed in the separation of church and state.  Instead, the list of Enlightenment thinkers included John Locke, Thomas Hobbes, Voltaire, Charles de Montesquieu, Jean Jacques Rousseau, William Blackstone, John Calvin, and Thomas Aquinas.  Never mind that Aquinas died in 1274, and the Enlightenment did not begin until the 17th Century.  

By the time of the final vote in May, Jefferson was ultimately restored to the curriculum, but other changes stayed put.  On May 25, 2010, The New York Times concisely summarized the more notable alterations:  

"In what looks like an effort to justify injecting more religion into government, it voted to require students to examine why the founding fathers protected religious freedom - and how that approach contrasts with "separation of church and state." The board also required third graders to "explain how government regulations and taxes impact consumer cost," presumably to get them off to an early start in fearing government. Older students will have to "evaluate efforts by global organizations to undermine U.S. sovereignty" and, under an earlier change, analyze the "unintended consequences" of such programs as the Great Society and affirmative action."

During the contentious revision process, a March 12, 2010,  New York Times article reported:

"Dr. [Don] McLeroy, a dentist by training, pushed through a change to the teaching of the civil rights movement to ensure that students study the violent philosophy of the Black Panthers in addition to the nonviolent approach of the Rev. Dr. Martin Luther King Jr. He also made sure that textbooks would mention the votes in Congress on civil rights legislation, which Republicans supported."

"Mr. Bradley won approval for an amendment saying students should study "the unintended consequences" of the Great Society legislation, affirmative action and Title IX legislation. He also won approval for an amendment stressing that Germans and Italians as well as Japanese were interned in the United States during World War II, to counter the idea that the internment of Japanese was motivated by racism."

Other changes that worked their way through the process but were ultimately struck down included recharacterizing the slave trade as the "Atlantic triangular trade" and referring to the president as "Barack Hussein Obama" when there was no real precedent for employing a president's middle name, except in such cases as John Adams and John Quincy Adams where using the middle name actually conferred some sort of instructional value.

Bell-Metereau saw problems with this at the time.  "You explain history in terms of various interests; you don't pick winners and losers," she says.  "You try to describe as accurately as you can."

She goes on:  "There was no clear logic to why different figures were stuck in different places - no guiding principle.  It was arbitrary.  [The Board] even removed the term capitalism because of perceived negative connotation and simply inserted what was politically correct from their perspective."

Board votes were along party lines.  That same  March 12, 2010, New York Times article stated the following:

""We are adding balance," said Dr. Don McLeroy, the leader of the conservative faction on the board, after the vote. "History has already been skewed. Academia is skewed too far to the left.""

Jennings cited these agendas as part of her motivation to run for the Board for the first time in 2010.  "I realized we were once again in a situation where we could have another Cynthia Dunbar on the board."  Jennings was concerned with people pushing alternative agendas on the Board, other than education.  

Notably, then-outgoing member Cynthia Dunbar had authored a book entitled One Nation Under God and had characterized public education as "a subtly deceptive tool of perversion."  

In response, Jennings flatly states: "Someone who doesn't believe that public schools are valuable should not be making policy for 5 million public school students."  

"I work with teachers a lot.  Most of my work goes to support teachers, so I'm in schools often, I see the struggles schools have, see the problems they have.  I felt strongly that I wanted to help be part of whatever we could do to further the education of children."

For her, it was important that the Board had someone who had the best interests of children in mind, rather than an ideological agenda.  She made the decision and in 2010 entered the race for SBOE.

For more on the ensuing race, the ad, the lawsuit, and this year's race, check back next week for our ongoing coverage.

Last week, the federal district court in Washington, D.C. accused the state of Texas of dragging its feet in preparing for the July 9 trial in the Voter ID case.  

In its order scolding the state and attempting to hasten the progress of the case, the court ordered Texas that by the end of the day on May 9, the lead counsel of record for Texas certify "without equivocation, under oath, and in good faith" the following:

1. Texas can "comply fully with every deadline, term and condition set forth in this Order;"

2. "Texas has completed production of all relevant databases to the United States, and will produce to Defendant-Intervenors by May 9, 2012" all underlying data and supplemental information necessary for comparison and analysis;

3. "Texas will produce all non-privileged documents to Defendants [United States]... without imposing a further qualification for documents that are not 'of public record.'"

4. "Texas will not require the service of a subpoena to produce any witnesses (or documents in the possession of a witness) from current state legislators or their staff, the Texas Legislative Council, the Department of Public Safety, the staff of the Secretary of State, the staff of the Lieutenant Governor, or the staff of the Governor."

5. "Texas will not assert any new privileges as to any documents or witnesses other than those already represented to this Court."

6. "Texas will not violate any further discovery deadlines or Orders from this Court and will comply fully and in good faith with such discovery."

Did they comply?
On May 9, Texas did file two documents with the court.  The first was a request to extend the May 9 deadline - from 5 pm until 8 pm.  The second document was a response to the Monday federal court order accusing Texas of slowing the discovery process.  In its response, Texas stated:

"The State of Texas remains ready, willing, and able to work steadfastly toward achieving the goals outlined in the Court's proposed order."

The state then sidled up to the court and attempted to deflect some of the criticism it endured in the Monday order:

"At this point in the proceedings, one thing is clear: All parties should be required to expedite remaining discovery and move promptly toward trial on July 9."

The state went on:

"Because so many aspects of discovery are outside the Texas Attorney General's control and because of the inherent vagaries of litigation, counsel for the State cannot certify under oath that future events in this process will absolutely take place. Many of the future events about which the Court has asked counsel to make certifications are subject to the intervening actions of people and agencies outside counsel's control-including the opposing parties. While we cannot certify under oath that the discovery process will play out precisely as envisioned in the Court's order, we can assure the Court that we will do everything in our power to comply with the vast majority of the Court's proposal. Some parts of the Court's proposal, however, cannot be complied with, such as the requirement that counsel for the State preemptively waive privileges that do not belong to counsel and that have not yet been asserted."

Read charitably, in response to a binding order from a federal court in Washington, the state of Texas said, "We'll try."

The rest of the state's response goes through what it has produced, what it has yet to produce, and supplies explanations for its failure to produce other materials subject to the court order.  The response then explains that the state cannot agree that it will not assert new privileges, and it attempts to show that the Department of Justice is equally culpable in failing to comply with discovery.  This is noteworthy for several reasons: first, the court order was not susceptible to a response; responses are generally appropriate to address the pleadings and filings of other parties; second, a court order demands compliance, where failure can often result in sanctions up to and including a finding of contempt; and , third, the state's rationale that the Department of Justice has been equally dilatory directly contradicts the finding of the court in last Monday's order. It's an argument being made when the forum for argument has been closed.

Regardless, on Friday, the Department of Justice submitted a Joint Status Report to the court advising them of the progress of discovery - briefly, whether Texas had complied with the court order.

The Joint Status Report notes that some of the production is complete; some is not.  The state produced data from the Driver's License System and License to Carry Handgun databases, and while the Department of Justice could not necessarily access the data, the state of Texas characterized it as an IT problem, but stated that they were willing to assist the DOJ access the files.

The report also indicated that the Driver's License Database provided by the state was substantially incomplete, omitting records for 20% of the individuals in the state who hold a driver's license or state ID.  There was also an indication by one of the retained experts that one of the extracts for the driver's license database was "not usable for conducting data analyses relevant to this litigation."

A copy of Texas' response may be viewed here.

A copy of the Joint Status Report may be viewed here.

As we mentioned yesterday, the Photo ID case between the state of Texas and the Department of Justice marches steadily toward trial in July.  After we posted yesterday, the federal district court in D.C. that is hearing the case issued a new order, this time scolding the state of Texas for its conduct in this lawsuit.

In some respects, the order is a fairly routine scheduling order, setting out the important dates between now and trial, currently set for July 9th.  It lists things such as the last date to file discovery motions (May 21st), the date that expert disclosures are due (June 1st), and the date for motions in limine to be filed (June 20th).  All of these are fairly ordinary processes leading up to a trial.

Except, of course, for the specific instructions that apply to Texas and Texas only.

Find out what they are below the jump.  
Before setting out the regular deadlines ahead of trial, the court set out specific instructions and restrictions pertaining to the state of Texas only.  The court ordered, among other things, that the lead counsel of record for Texas certify "without equivocation, under oath, and in good faith" by the end of the day on May 9th (tomorrow) the following:

1. Texas can "comply fully with every deadline, term and condition set forth in this Order;"


2. "Texas has completed production of all relevant databases to the United States, and will produce to Defendant-Intervenors by May 9, 2012" all underlying data and supplemental information necessary for comparison and analysis;


3. "Texas will produce all non-privileged documents to Defendants [United States]... without imposing a further qualification for documents that are not 'of public record.'"


4. "Texas will not require the service of a subpoena to produce any witnesses (or documents in the possession of a witness) from current state legislators or their staff, the Texas Legislative Council, the Department of Public Safety, the staff of the Secretary of State, the staff of the Lieutenant Governor, or the staff of the Governor."


5. "Texas will not assert any new privileges as to any documents or witnesses other than those already represented to this Court."


6. "Texas will not violate any further discovery deadlines or Orders from this Court and will comply fully and in good faith with such discovery."

Talk about a tight leash.

What would make a panel of three judges draft and sign off on an order that orders a party to a lawsuit to promise that it will comply with all court orders?

It does take some doing.  Apparently, Texas did.  When the lawsuit challenging Texas' Voter ID law was beginning, Texas requested expedited review so that it could implement the law before the election this November.  The federal court in D.C. sided with Texas over the objections of the Department of Justice.  In its order, the court cites with approval discovery efforts by DOJ in order to illuminate the issues for trial and unpack the relevant evidence so that all parties are prepared by the July 9th trial date.  The court disapproved of Texas' conduct, however:

"Unfortunately, Texas has failed to act with the same diligence and sense of urgency. Although Texas states that its paramount objective is obtaining preclearance and implementing S.B. 14 in time for the November 2012 general election, Texas' actions reflect a wholly different view. Rather than engaging in expedited discovery consistent with its stated goal, Texas has taken steps that can only be interpreted as having the aim of delaying Defendants' ability to receive and analyze data and documents in a timely fashion. Texas has repeatedly ignored or violated directives and orders of this Court that were designed to expedite discovery, and Texas has failed to produce in a timely manner key documents that Defendants need to prepare their defense. Most troubling is Texas' conduct with respect to producing its key state databases, which are central to Defendants' claim that S.B. 14 has a disparate and retrogressive impact on racial and/or language minority groups. 1 The record reflects that these databases are voluminous, complex, and essential to the preparation of the opinions of Defendants' expert witnesses. Yet, according to Texas, the full production of such databases to the United States was only complete on May 4, 2012-35 days after they were initially due. (Dkt. No. 43 at ¶ 5). The production to Defendant-Intervenors is still not complete."

The court's stance is summed thus:

"Although this Court still firmly believes that Texas is entitled to implement S.B. 14 for the November 2012 election if it is a valid law under the VRA, this Court will not continue to grant such an expedited review while Texas obstructs discovery in a manner that potentially severely prejudices Defendants' ability to prepare for trial."

The full text of the order is available here.

Stay tuned.  

As we go into this last week of early voting for city council elections in Austin, and we get ready for primary elections in just a few short weeks, let's take a quick look at the mechanics of voting.  Over the past few months, we've looked at voter identification laws, the ensuing lawsuits, and some history of poll taxes.  A list of BOR pieces covering the Texas Voter ID law from top to bottom is at the bottom of this article.  

Have you looked at your voter registration card lately?  Check out the back of the card.  What does it say?  If you don't have it handy, read below to see what it says:

"Upon federal approval of a photo identification law passed by the Texas Legislature in 2011, a voter must show one of the following forms of photo identification at the polling location before the voter may be accepted for voting: Driver's license, election identification certificate, personal identification card or concealed handgun license issued by the Texas Department of Public Safety; United States Military identification card that contains the person's photograph; United States citizenship certificate that contains the person's photograph; or a United States passport.

The above identification must be current and not expired, or if expired, then it must have expired no more than 60 days before it is presented for voter qualification at the polling place.  Please contact the Secretary of State or your local voter registrar for information concerning when the above photo identification requirement for certain voters with disabilities, or voters with religious objections to being photographed, and voters affected by certain natural disasters.

Please visit the Secretary of State website at www.sos.state.tx.us or call toll free at 1-800-252-8683.  If any information on this certificate changes or is incorrect, correct the information in the space provided below, sign and return this certificate to the voter registrar."

The bottom half of the back of the card has a statement in Spanish, of similar length.  We have not translated it, but it is fairly safe to assume it says substantially the same thing.  

So, when you go to the polls this week or this month, do you need a photo identification?  Yeah, from that statement on the voter registration card, we couldn't tell either.  However, as we have reported numerous times here at Burnt Orange Report, the federal government has absolutely not given its approval to the voter identification law passed in Texas in 2011, and signed by Governor Perry that same year.  To the contrary, the federal government, by way of the Department of Justice, pounced on that law, and continues via the court system to seek to squash the law.  Moreover, the case is currently before the federal district court in the District of Columbia.   Both sides have submitted their briefs, and the case is set for trial in July, months after the primaries here in Texas.

Which is to say, the federal government is far from giving its approval to the Texas voter ID law - either voluntarily or compulsorily.  Which is to say, that while the law is on the books, it's not even enforceable.  

But, some might argue, if the statement on the back of the card is true, what's the problem?  The purpose of a statement on the back of a voter registration card should be to inform the bearer of the card as efficiently and concisely as possible of the current state of requirements to vote, and to not mislead, in doing so.  

As we noted, currently, photo identification is not absolutely required in order to vote at the polls in Texas, although there are instances when identification other than a voter registration card is required.  However, the language on the back of the card could easily suggest that it is.  It simply refers to the federal approval of the Texas voter ID law.  It does not state whether that approval has happened yet or will happen in the future. It does not state that the law is under review by the courts in DC.  It does not state that rather than approve the voter ID law, the federal government has, in fact, affirmatively challenged that law in order to strike it down.  It does not state that the federal government will not approve nor be compelled to approve the Texas voter ID law before city council elections in Austin or the primaries in a few weeks.

Even more significantly, the statement in the voter registration card states requirements for voting that do not currently exist.  It does not list or refer to requirements for voting that are currently on the books and enforceable.  And, by putting the statement of non-existent requirements for voting on the card, ostensibly for the "convenience" of voters, but telling voters that they can check on the current and enforceable state of the law by calling the Secretary of State's office, they have, in fact, made it more difficult and onerous for voters to come by the information that can actually assist them.  

So, for your convenience, we have linked to the Secretary of State's website where you can read what is currently and actually required by the state of Texas to vote at the polls, and in which instances identification (but not necessarily photo identification) will be legitimately requested at the polls.  You can see those pages here and here.

Will this confuse voters?  Will voters who are unsure if they have the right documentation simply avoid the polls?  Will they be turned away by election workers who are themselves confused by the discrepancies between the law and what is pending in a court in D.C.?  We'll see if this ends up being thrown into the case currently before the D.C. court, or if this ends up as part of another suit brought under the Voter Rights Act.

For complete coverage of the Texas Voter ID story from Burnt Orange Report, check out these stories:

What's a Poll Tax? And How Do I Get One?

Voter ID Complaint Broken Down

Texas' Voting Rights Act Suit Intended to Force Supreme Court Ruling

A showdown on voter ID in Texas is coming in July

Florida's Stand Your Ground Law has garnered international attention since the recent shooting death of Trayvon Martin.  As it happens, Texas has its own Stand Your Ground law and has for some time.  Codified at §9.31, et seq. of the Texas Penal Code, the law as we know it was first passed in 1973, with the most recent amendments to it being enacted by the legislature in 2007.  

The notion of standing one's ground as a tenet or maxim of the law is not particularly new.  What's relatively new and particularly Texan is just how much ground one can stand.  
Briefly, English common law transplanted to the American colonies permitted one to stand one's ground in the face of attack, but only in limited circumstances.  A person under attack had a duty to retreat from the attack if it could be done so safely. If a retreat could not be accomplished safely, then the person under attack could use deadly force to protect him or herself against death or serious bodily injury.  Traditionally, there was one exception to this duty; a person did not have to retreat in his or her own home.  It did not matter if he could retreat safely.  One's home was one's castle.  

As settlers pushed west during the 19th century, the duty to retreat evolved and - well - retreated.  The notion of retreat became associated with cowardice and judicial opinions concerning self defense began to be littered with words and phrases such as "true man" and "American man."  The notion of retreat became so disfavored that by the early part of the 20th century, no less a justice than Oliver Wendell Holmes, Jr., wrote, "Detached reflection cannot be demanded in the presence of an uplifted knife."

Texas common law reflected these changes and was ultimately codified.  Section 9.31(a) of the Penal Code reads thus:

"(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used."

Section 9.31(e) explicitly eliminates the requirement to retreat, and Section 9.31(f) states that under this section, neither judge nor jury may consider whether the person retreated, while determining criminal culpability.

Section 9.31(d) then goes on to limit the use of deadly force to an ostensibly discrete set of circumstances also found in Subchapter C of the Penal Code.  Those alleged limits, however, are simply the situations found in Section 9.31(a), but where the person reasonably believes that not just any force will do - deadly force must be employed (Section 9.32); instances of protecting a third person (Section 9.33); and preserving another's life in an emergency (Section 9.34).  (Section 9.34, despite its seeming inherent contradictions, does not permit the use of deadly force to prevent another from committing suicide.  Yet, it does allow the use of deadly force to preserve the life of another in an emergency; which begs the question, against whom is that deadly force to be used?)

The Texas law departs radically from the traditional notion of self defense.  In the age-old tension between dignity of the person and dignity of life, it seems to err on the side of dignity of the person.  Where the traditional notion of self-defense gave a person the right to use deadly force once he had retreated "to the wall," and where the wall was often confined to one's home, Texas expands the scope of where a person may use deadly force: to the home, to the car, to the person's own business, and even to the person's place of employment, as well as to anywhere where they may be to prevent various violent crimes.

Notably, the law gives an enormous amount of discretion to the actor who seeks to use the force in any of these situations.  The standard employed is reasonable belief.  Therefore, if a person uses deadly force, and she is entirely mistaken about the actions or intentions of the person against whom she uses the force, but she were reasonable in her belief (and mistake), there is no culpability.  Further, the statute and case law also permits a person to use deadly force and not just do so while retreating or merely standing his ground; he can actually pursue the person against whom he seeks to use the force if doing so is consistent with the rest of the law, or even depart from the retreat in order to retrieve a weapon to fight back.  

The statute also presents other issues.  If a person is engaging in criminal activity, he cannot avail himself of the protections of the statute.  In a sense, this is like a trial before a trial.  Before a person has been convicted of engaging in criminal activity - even in her own home - she must surrender any protections she may have had to defend herself under this law.  Section 9.34 is perhaps the least intuitive and least interpreted section of the Texas law.  For instance, a person may use deadly force to preserve the life of another in an emergency.  Interestingly, case law has established that this does not apply to unborn children or fetuses.  Still, it is unclear which lives are to be protected under this section or against whom the force is to be used.  However, the section does seem to provide some clarity as it states that force, but not deadly force, may be used to prevent someone from committing suicide.  Which, given the law's aversion to linguistic surplusage, would seem to prevent an absurd result of killing someone to prevent his suicide, but removes an attempted suicide from the definition of emergencies.

* Thanks to Richard Maxwell Brown, No Duty to Retreat: Violence and Values in American History and Society (1991) for backgrounder on the evolution of law on the American frontier.  

The Department of Justice Civil Rights Division yesterday issued a letter ruling refusing to preclear S.B. 14, Texas's new voter identification law.  The Division wrote that Texas had not sustained its burden under Section 5 of the Voting Rights Act to show that Sections 9 and 14 of S.B. 14 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.

Civil in tone, the Division's letter lays out the standards which the state of Texas must meet for preclearance and then methodically eviscerates the new law as it shows how Texas failed to meet each one.  
Acknowledging that "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," the Division concludes early in the letter:

"[W]e 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 Division then set out the standard Texas must meet:

"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.'"

The Division then broke down the data provided by the state, finding several problems that would bar preclearance of the law.  First, while approximately 21% of the state's voters are Hispanic, the ratio of voters who would be disenfranchised under S.B. 14 and who are Hispanic is 29%.  In short, Hispanic voters would be disproportionately disenfranchised if the new laws were to go into effect.   That was under data released in September 2011.  Under data released in January 2012, that discrepancy was even higher, with the ratio of disenfranchised voters who are Hispanic standing at 38%.  

The Division found even more problems - the state did not explain the reason for the two separate results or explain which data set was more accurate.  Further, under the more forgiving data, Hispanic voters were 46.5% more likely to not have the required identification; under the more recent data, Hispanic voters were more than twice as likely to lack the required identification. Additionally, Texas had provided no data on whether African American or Asian [sic] registered voters were also disproportionately affected by S.B. 14.

The state failed to meet its burden in other ways.

• The law ostensibly offers a "free" election identification certificate but doesn't account for the $22 fee to get a birth certificate to obtain the free ID, or address the correlation between the Hispanic population and poverty and thus an impact on the availability of money to pay for such a fee.  

• The law doesn't address the lack of vehicles for Hispanics (higher percentage than non-Hispanic whites) and that impact on the ability to travel to a driver's license office for the new ID.

• The law doesn't address the fact that in 81 of 254 of Texas counties, there are no operational driver's license offices, and that in those counties, the number of Hispanics without appropriate identification is, again, disproportionately higher.

• The law creates no standards for a program of voter education efforts concerning the new voter identification strictures for either the public or for officials, and it allows too much discretion to poll workers in cases of non-exact name matches.

Throughout the letter, the Division repeatedly hammers the Texas Legislature for striking down several amendments to S.B. 14 that would have mitigated the effects of the draconian law, opting instead for a harsher regime.

So, is that it?  Is Senate Bill 14/the Voter ID Law dead?  Nope.  Not yet.  As you may recall, in January, the state filed a complaint in federal court in D.C. to get preclearance.  That case is set for hearing this week.  

For more background on Voter ID, including links to the state's complaint in federal court, the skinny on preclearance, the text of the Supreme Court opinion under which this entire fight is playing out (Crawford v.Marion County Election Bd., 553 U.S. 181 (2008)), and the ins and outs of Sections 2 and 5 of the Voting Rights Act, go here.

The Department of Justice Civil Rights Division yesterday issued a letter ruling refusing to preclear S.B. 14, Texas's new voter identification law.  The Division wrote that Texas had not sustained its burden under Section 5 of the Voting Rights Act to show that Sections 9 and 14 of S.B. 14 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.

Civil in tone, the Division's letter lays out the standards which the state of Texas must meet for preclearance and then methodically eviscerates the new law as it shows how Texas failed to meet each one.  
Acknowledging that "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," the Division concludes early in the letter:

"[W]e 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 Division then set out the standard Texas must meet:

"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.'"

The Division then broke down the data provided by the state, finding several problems that would bar preclearance of the law.  First, while approximately 21% of the state's voters are Hispanic, the ratio of voters who would be disenfranchised under S.B. 14 and who are Hispanic is 29%.  In short, Hispanic voters would be disproportionately disenfranchised if the new laws were to go into effect.   That was under data released in September 2011.  Under data released in January 2012, that discrepancy was even higher, with the ratio of disenfranchised voters who are Hispanic standing at 38%.  

The Division found even more problems - the state did not explain the reason for the two separate results or explain which data set was more accurate.  Further, under the more forgiving data, Hispanic voters were 46.5% more likely to not have the required identification; under the more recent data, Hispanic voters were more than twice as likely to lack the required identification. Additionally, Texas had provided no data on whether African American or Asian [sic] registered voters were also disproportionately affected by S.B. 14.

The state failed to meet its burden in other ways.

• The law ostensibly offers a "free" election identification certificate but doesn't account for the $22 fee to get a birth certificate to obtain the free ID, or address the correlation between the Hispanic population and poverty and thus an impact on the availability of money to pay for such a fee.  

• The law doesn't address the lack of vehicles for Hispanics (higher percentage than non-Hispanic whites) and that impact on the ability to travel to a driver's license office for the new ID.

• The law doesn't address the fact that in 81 of 254 of Texas counties, there are no operational driver's license offices, and that in those counties, the number of Hispanics without appropriate identification is, again, disproportionately higher.

• The law creates no standards for a program of voter education efforts concerning the new voter identification strictures for either the public or for officials, and it allows too much discretion to poll workers in cases of non-exact name matches.

Throughout the letter, the Division repeatedly hammers the Texas Legislature for striking down several amendments to S.B. 14 that would have mitigated the effects of the draconian law, opting instead for a harsher regime.

So, is that it?  Is Senate Bill 14/the Voter ID Law dead?  Nope.  Not yet.  As you may recall, in January, the state filed a complaint in federal court in D.C. to get preclearance.  That case is set for hearing this week.  

For more background on Voter ID, including links to the state's complaint in federal court, the skinny on preclearance, the text of the Supreme Court opinion under which this entire fight is playing out (Crawford v.Marion County Election Bd., 553 U.S. 181 (2008)), and the ins and outs of Sections 2 and 5 of the Voting Rights Act, go here.

The Department of Justice Civil Rights Division yesterday issued a letter ruling refusing to preclear S.B. 14, Texas's new voter identification law.  The Division wrote that Texas had not sustained its burden under Section 5 of the Voting Rights Act to show that Sections 9 and 14 of S.B. 14 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.

Civil in tone, the Division's letter lays out the standards which the state of Texas must meet for preclearance and then methodically eviscerates the new law as it shows how Texas failed to meet each one.  
Acknowledging that "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," the Division concludes early in the letter:

"[W]e 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 Division then set out the standard Texas must meet:

"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.'"

The Division then broke down the data provided by the state, finding several problems that would bar preclearance of the law.  First, while approximately 21% of the state's voters are Hispanic, the ratio of voters who would be disenfranchised under S.B. 14 and who are Hispanic is 29%.  In short, Hispanic voters would be disproportionately disenfranchised if the new laws were to go into effect.   That was under data released in September 2011.  Under data released in January 2012, that discrepancy was even higher, with the ratio of disenfranchised voters who are Hispanic standing at 38%.  

The Division found even more problems - the state did not explain the reason for the two separate results or explain which data set was more accurate.  Further, under the more forgiving data, Hispanic voters were 46.5% more likely to not have the required identification; under the more recent data, Hispanic voters were more than twice as likely to lack the required identification. Additionally, Texas had provided no data on whether African American or Asian [sic] registered voters were also disproportionately affected by S.B. 14.

The state failed to meet its burden in other ways.

• The law ostensibly offers a "free" election identification certificate but doesn't account for the $22 fee to get a birth certificate to obtain the free ID, or address the correlation between the Hispanic population and poverty and thus an impact on the availability of money to pay for such a fee.  

• The law doesn't address the lack of vehicles for Hispanics (higher percentage than non-Hispanic whites) and that impact on the ability to travel to a driver's license office for the new ID.

• The law doesn't address the fact that in 81 of 254 of Texas counties, there are no operational driver's license offices, and that in those counties, the number of Hispanics without appropriate identification is, again, disproportionately higher.

• The law creates no standards for a program of voter education efforts concerning the new voter identification strictures for either the public or for officials, and it allows too much discretion to poll workers in cases of non-exact name matches.

Throughout the letter, the Division repeatedly hammers the Texas Legislature for striking down several amendments to S.B. 14 that would have mitigated the effects of the draconian law, opting instead for a harsher regime.

So, is that it?  Is Senate Bill 14/the Voter ID Law dead?  Nope.  Not yet.  As you may recall, in January, the state filed a complaint in federal court in D.C. to get preclearance.  That case is set for hearing this week.  

For more background on Voter ID, including links to the state's complaint in federal court, the skinny on preclearance, the text of the Supreme Court opinion under which this entire fight is playing out (Crawford v.Marion County Election Bd., 553 U.S. 181 (2008)), and the ins and outs of Sections 2 and 5 of the Voting Rights Act, go here.

The Department of Justice Civil Rights Division yesterday issued a letter ruling refusing to preclear S.B. 14, Texas's new voter identification law.  The Division wrote that Texas had not sustained its burden under Section 5 of the Voting Rights Act to show that Sections 9 and 14 of S.B. 14 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.

Civil in tone, the Division's letter lays out the standards which the state of Texas must meet for preclearance and then methodically eviscerates the new law as it shows how Texas failed to meet each one.  
Acknowledging that "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," the Division concludes early in the letter:

"[W]e 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 Division then set out the standard Texas must meet:

"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.'"

The Division then broke down the data provided by the state, finding several problems that would bar preclearance of the law.  First, while approximately 21% of the state's voters are Hispanic, the ratio of voters who would be disenfranchised under S.B. 14 and who are Hispanic is 29%.  In short, Hispanic voters would be disproportionately disenfranchised if the new laws were to go into effect.   That was under data released in September 2011.  Under data released in January 2012, that discrepancy was even higher, with the ratio of disenfranchised voters who are Hispanic standing at 38%.  

The Division found even more problems - the state did not explain the reason for the two separate results or explain which data set was more accurate.  Further, under the more forgiving data, Hispanic voters were 46.5% more likely to not have the required identification; under the more recent data, Hispanic voters were more than twice as likely to lack the required identification. Additionally, Texas had provided no data on whether African American or Asian [sic] registered voters were also disproportionately affected by S.B. 14.

The state failed to meet its burden in other ways.

• The law ostensibly offers a "free" election identification certificate but doesn't account for the $22 fee to get a birth certificate to obtain the free ID, or address the correlation between the Hispanic population and poverty and thus an impact on the availability of money to pay for such a fee.  

• The law doesn't address the lack of vehicles for Hispanics (higher percentage than non-Hispanic whites) and that impact on the ability to travel to a driver's license office for the new ID.

• The law doesn't address the fact that in 81 of 254 of Texas counties, there are no operational driver's license offices, and that in those counties, the number of Hispanics without appropriate identification is, again, disproportionately higher.

• The law creates no standards for a program of voter education efforts concerning the new voter identification strictures for either the public or for officials, and it allows too much discretion to poll workers in cases of non-exact name matches.

Throughout the letter, the Division repeatedly hammers the Texas Legislature for striking down several amendments to S.B. 14 that would have mitigated the effects of the draconian law, opting instead for a harsher regime.

So, is that it?  Is Senate Bill 14/the Voter ID Law dead?  Nope.  Not yet.  As you may recall, in January, the state filed a complaint in federal court in D.C. to get preclearance.  That case is set for hearing this week.  

For more background on Voter ID, including links to the state's complaint in federal court, the skinny on preclearance, the text of the Supreme Court opinion under which this entire fight is playing out (Crawford v.Marion County Election Bd., 553 U.S. 181 (2008)), and the ins and outs of Sections 2 and 5 of the Voting Rights Act, go here.

The Department of Justice Civil Rights Division yesterday issued a letter ruling refusing to preclear S.B. 14, Texas's new voter identification law.  The Division wrote that Texas had not sustained its burden under Section 5 of the Voting Rights Act to show that Sections 9 and 14 of S.B. 14 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.

Civil in tone, the Division's letter lays out the standards which the state of Texas must meet for preclearance and then methodically eviscerates the new law as it shows how Texas failed to meet each one.  
Acknowledging that "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," the Division concludes early in the letter:

"[W]e 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 Division then set out the standard Texas must meet:

"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.'"

The Division then broke down the data provided by the state, finding several problems that would bar preclearance of the law.  First, while approximately 21% of the state's voters are Hispanic, the ratio of voters who would be disenfranchised under S.B. 14 and who are Hispanic is 29%.  In short, Hispanic voters would be disproportionately disenfranchised if the new laws were to go into effect.   That was under data released in September 2011.  Under data released in January 2012, that discrepancy was even higher, with the ratio of disenfranchised voters who are Hispanic standing at 38%.  

The Division found even more problems - the state did not explain the reason for the two separate results or explain which data set was more accurate.  Further, under the more forgiving data, Hispanic voters were 46.5% more likely to not have the required identification; under the more recent data, Hispanic voters were more than twice as likely to lack the required identification. Additionally, Texas had provided no data on whether African American or Asian [sic] registered voters were also disproportionately affected by S.B. 14.

The state failed to meet its burden in other ways.

• The law ostensibly offers a "free" election identification certificate but doesn't account for the $22 fee to get a birth certificate to obtain the free ID, or address the correlation between the Hispanic population and poverty and thus an impact on the availability of money to pay for such a fee.  

• The law doesn't address the lack of vehicles for Hispanics (higher percentage than non-Hispanic whites) and that impact on the ability to travel to a driver's license office for the new ID.

• The law doesn't address the fact that in 81 of 254 of Texas counties, there are no operational driver's license offices, and that in those counties, the number of Hispanics without appropriate identification is, again, disproportionately higher.

• The law creates no standards for a program of voter education efforts concerning the new voter identification strictures for either the public or for officials, and it allows too much discretion to poll workers in cases of non-exact name matches.

Throughout the letter, the Division repeatedly hammers the Texas Legislature for striking down several amendments to S.B. 14 that would have mitigated the effects of the draconian law, opting instead for a harsher regime.

So, is that it?  Is Senate Bill 14/the Voter ID Law dead?  Nope.  Not yet.  As you may recall, in January, the state filed a complaint in federal court in D.C. to get preclearance.  That case is set for hearing this week.  

For more background on Voter ID, including links to the state's complaint in federal court, the skinny on preclearance, the text of the Supreme Court opinion under which this entire fight is playing out (Crawford v.Marion County Election Bd., 553 U.S. 181 (2008)), and the ins and outs of Sections 2 and 5 of the Voting Rights Act, go here.

The right to a trial by a jury of one's peers.  The right of all freeborn Americans and inviolable.  Well, not so much.  Look at your cell phone contract or your credit card contract. Mandatory arbitration clauses abound - which means that when either breaches its contract with you, there is no jury for you, no trial, no civil proceedings.  

So too with employment contracts in Texas.  
This week, the Texas Supreme Court handed down a decision upholding an employee's waiver of his right to a jury trial in case of any disputes with his employer.  The case, In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No. 10-0687, concerned an employee who had worked for is employer for more than 28 years.  In 2008, he signed an Employee Handbook Acknowledgment & Mutual Waiver of Jury Trial (the "Waiver").  

In part, the Waiver read as follows:

"I agree that with respect to any dispute between [Frank Kent] and me to resolve any disputes between us arising out of or in any way related to the employment relationship (including, but not limited to, employment and  discontinuation of employment) before a judge without a jury. [FRANK KENT] AND EACH EMPLOYEE THAT SIGNS THIS ACKNOWLEDGMENT, RECEIVES A COPY OF THIS HANDBOOK, HAS KNOWLEDGE OF THIS POLICY, AND CONTINUES TO WORK FOR [FRANK KENT] THEREAFTER, HEREBY WAIVES THEIR RIGHT TO TRIAL BY JURY AND AGREE TO HAVE ANY DISPUTES ARISING BETWEEN THEM RESOLVED BY A JUDGE OF A COMPETENT COURT SITTING WITHOUT A JURY."

Notably, the employer car dealership had previously asked the employee to sign the Waiver, and he had refused.  Why did the employee sign this time?  Because his supervisor told him that if he didn't he would lose his job.  So, he signed.  Less than a year after he signed, he was fired.

The employee subsequently sued, making claims for age discrimination, and arguing that the Waiver was signed under duress - "was not signed under circumstances which were 'knowing, voluntary and intelligent.'"  

In siding with the employer and upholding the validity of the Waiver, the Texas Supreme Court agreed with the proposition that "a jury waiver agreement that is coerced is invalid" but held that the threat to fire an employee - "[the] threat to exercise a legal right" is not "coercion that would invalidate the [Waiver]."  The Court went on:

"[A]n at-will employer's threat to exercise its legal right to terminate an employee cannot amount to coercion that invalidates a jury waiver agreement."

In reaching this conclusion, the Court stated that "an employer does not coerce an at-will employee by demanding that the employee accept new dispute resolution procedures."  The Court tied its reasoning in this case to previous challenges to arbitration clauses and plans.  See In re Halliburton Co., 80 S.W.3d 566, 572 (Tex.2002) (orig. proceeding) ("not procedurally unconscionable to premise continued employment on acceptance of an arbitration plan.").  The Court reasoned that there was no distinction between the effect of an arbitration clause on an at-will employment relationship and the effect of a jury trial waiver on the same.  As such, compelling an employee to accept a jury trial waiver as a condition of continued employment is not coercion or duress, but rather a threat to merely exercise a pre-existing legal right.  Such a contract will not be invalidated.

The text of the opinion may do so here.

The right to a trial by a jury of one's peers.  The right of all freeborn Americans and inviolable.  Well, not so much.  Look at your cell phone contract or your credit card contract. Mandatory arbitration clauses abound - which means that when either breaches its contract with you, there is no jury for you, no trial, no civil proceedings.  

So too with employment contracts in Texas.  
This week, the Texas Supreme Court handed down a decision upholding an employee's waiver of his right to a jury trial in case of any disputes with his employer.  The case, In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No. 10-0687, concerned an employee who had worked for is employer for more than 28 years.  In 2008, he signed an Employee Handbook Acknowledgment & Mutual Waiver of Jury Trial (the "Waiver").  

In part, the Waiver read as follows:

"I agree that with respect to any dispute between [Frank Kent] and me to resolve any disputes between us arising out of or in any way related to the employment relationship (including, but not limited to, employment and  discontinuation of employment) before a judge without a jury. [FRANK KENT] AND EACH EMPLOYEE THAT SIGNS THIS ACKNOWLEDGMENT, RECEIVES A COPY OF THIS HANDBOOK, HAS KNOWLEDGE OF THIS POLICY, AND CONTINUES TO WORK FOR [FRANK KENT] THEREAFTER, HEREBY WAIVES THEIR RIGHT TO TRIAL BY JURY AND AGREE TO HAVE ANY DISPUTES ARISING BETWEEN THEM RESOLVED BY A JUDGE OF A COMPETENT COURT SITTING WITHOUT A JURY."

Notably, the employer car dealership had previously asked the employee to sign the Waiver, and he had refused.  Why did the employee sign this time?  Because his supervisor told him that if he didn't he would lose his job.  So, he signed.  Less than a year after he signed, he was fired.

The employee subsequently sued, making claims for age discrimination, and arguing that the Waiver was signed under duress - "was not signed under circumstances which were 'knowing, voluntary and intelligent.'"  

In siding with the employer and upholding the validity of the Waiver, the Texas Supreme Court agreed with the proposition that "a jury waiver agreement that is coerced is invalid" but held that the threat to fire an employee - "[the] threat to exercise a legal right" is not "coercion that would invalidate the [Waiver]."  The Court went on:

"[A]n at-will employer's threat to exercise its legal right to terminate an employee cannot amount to coercion that invalidates a jury waiver agreement."

In reaching this conclusion, the Court stated that "an employer does not coerce an at-will employee by demanding that the employee accept new dispute resolution procedures."  The Court tied its reasoning in this case to previous challenges to arbitration clauses and plans.  See In re Halliburton Co., 80 S.W.3d 566, 572 (Tex.2002) (orig. proceeding) ("not procedurally unconscionable to premise continued employment on acceptance of an arbitration plan.").  The Court reasoned that there was no distinction between the effect of an arbitration clause on an at-will employment relationship and the effect of a jury trial waiver on the same.  As such, compelling an employee to accept a jury trial waiver as a condition of continued employment is not coercion or duress, but rather a threat to merely exercise a pre-existing legal right.  Such a contract will not be invalidated.

The text of the opinion may do so here.

The right to a trial by a jury of one's peers.  The right of all freeborn Americans and inviolable.  Well, not so much.  Look at your cell phone contract or your credit card contract. Mandatory arbitration clauses abound - which means that when either breaches its contract with you, there is no jury for you, no trial, no civil proceedings.  

So too with employment contracts in Texas.  
This week, the Texas Supreme Court handed down a decision upholding an employee's waiver of his right to a jury trial in case of any disputes with his employer.  The case, In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No. 10-0687, concerned an employee who had worked for is employer for more than 28 years.  In 2008, he signed an Employee Handbook Acknowledgment & Mutual Waiver of Jury Trial (the "Waiver").  

In part, the Waiver read as follows:

"I agree that with respect to any dispute between [Frank Kent] and me to resolve any disputes between us arising out of or in any way related to the employment relationship (including, but not limited to, employment and  discontinuation of employment) before a judge without a jury. [FRANK KENT] AND EACH EMPLOYEE THAT SIGNS THIS ACKNOWLEDGMENT, RECEIVES A COPY OF THIS HANDBOOK, HAS KNOWLEDGE OF THIS POLICY, AND CONTINUES TO WORK FOR [FRANK KENT] THEREAFTER, HEREBY WAIVES THEIR RIGHT TO TRIAL BY JURY AND AGREE TO HAVE ANY DISPUTES ARISING BETWEEN THEM RESOLVED BY A JUDGE OF A COMPETENT COURT SITTING WITHOUT A JURY."

Notably, the employer car dealership had previously asked the employee to sign the Waiver, and he had refused.  Why did the employee sign this time?  Because his supervisor told him that if he didn't he would lose his job.  So, he signed.  Less than a year after he signed, he was fired.

The employee subsequently sued, making claims for age discrimination, and arguing that the Waiver was signed under duress - "was not signed under circumstances which were 'knowing, voluntary and intelligent.'"  

In siding with the employer and upholding the validity of the Waiver, the Texas Supreme Court agreed with the proposition that "a jury waiver agreement that is coerced is invalid" but held that the threat to fire an employee - "[the] threat to exercise a legal right" is not "coercion that would invalidate the [Waiver]."  The Court went on:

"[A]n at-will employer's threat to exercise its legal right to terminate an employee cannot amount to coercion that invalidates a jury waiver agreement."

In reaching this conclusion, the Court stated that "an employer does not coerce an at-will employee by demanding that the employee accept new dispute resolution procedures."  The Court tied its reasoning in this case to previous challenges to arbitration clauses and plans.  See In re Halliburton Co., 80 S.W.3d 566, 572 (Tex.2002) (orig. proceeding) ("not procedurally unconscionable to premise continued employment on acceptance of an arbitration plan.").  The Court reasoned that there was no distinction between the effect of an arbitration clause on an at-will employment relationship and the effect of a jury trial waiver on the same.  As such, compelling an employee to accept a jury trial waiver as a condition of continued employment is not coercion or duress, but rather a threat to merely exercise a pre-existing legal right.  Such a contract will not be invalidated.

The text of the opinion may do so here.