WASHINGTON ― Under President Barack Obama, the Justice Department spent the better part of a decade battling a strict voter ID law in Texas, which several federal judges found to be discriminatory. Now, in the Trump era, the acting head of the department’s Civil Rights Division is a Republican attorney who offered Texas officials guidance as they wrote the disputed law.
Thomas E. Wheeler, an Indiana lawyer who previously served as general counsel to Vice President Mike Pence when Pence was governor of Indiana, was named the acting head of the Civil Rights Division this week. For the time being, he is the person charged with overseeing the implementation of federal law on issues like voting, police conduct, housing discrimination and disability rights. He heads a division full of employees with big worries about the future of civil rights enforcement.
The Obama Justice Department had taken the position that the 2011 Texas law ― signed by former governor and likely Trump Cabinet member Rick Perry ― not only discriminated, but was passed explicitly to discriminate, against black and Latino voters. The latest step in the convoluted legal battle was set to be a hearing before a federal judge on Jan. 23, this past Monday.
Then, hours after President Donald Trump’s inauguration last week, the Justice Department asked for a delay in the case due to the change in administration, likely to give the department’s new leaders time to re-evaluate its position. But Wheeler won’t be involved in that decision. A Justice Department official told The Huffington Post that Wheeler is recused from the case.
That’s because back when Texas legislators were working on the bill, Wheeler sent them some advice based on his experience as chairman of the Indiana Election Commission from 2005 to 2010. Indiana’s version of a voter ID law had survived Supreme Court scrutiny, and Wheeler suggested that it was also responsible for an increase in voter registration and turnout.
“Over the course of 2008, there were well over 345,000 newly registered voters and over 800,000 new or updated registration records. While some of this is surely due to the ‘Obama factor,’ this cannot explain the reversal in voter turnout in off year elections in 2006 and 2010,” Wheeler wrote to the Texas lawmakers.
“Indiana’s experiences in 2006, 2008 and 2010 have demonstrated that our photo ID requirement does not act as a deterrent to participation,” Wheeler continued. “In fact a strong argument can be made that it actually increases voter turnout.”
Electoral experts don’t agree.
“While there is some dispute if voter ID laws depress turnout, and if so whether that depression skews to limit voters likely to vote for Democrats, there is no good evidence whatsoever that voter ID laws increase turnout,” said Rick Hasen, an election law specialist and professor at the University of California, Irvine.
Civil rights advocates, already on edge about what the future of civil rights enforcement could look like under Attorney General nominee Jeff Sessions, are worried about the fate of voting rights when a supporter of unduly strict voter ID laws, like Wheeler, takes over the Civil Rights Division.
“How can we possibly entrust a champion of voter identification to safeguard the rights of minority voters across the country, particularly at a moment when voter suppression is on the rise?” asked Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “We need a Justice Department that will work to ensure compliance with the Voting Rights Act and our other federal voting laws.”
Indiana’s voter ID law, which was supported by state Republicans and opposed by Democrats, is different from the version passed in Texas. Indiana’s measure allows for a wider range of forms of identification than the Texas law, which is among the strictest in the nation. The Indiana law also survived a challenge in the Supreme Court in 2008, although the former justice who wrote the main opinion has since questioned that decision.
The history of Texas’ voter ID law is as long as it is complicated. (Follow HuffPost’s coverage of the case in the stories listed below.)
In 2012, the year after it was passed, a panel of federal judges rejected the law as discriminatory, calling it “the most stringent in the country” and concluding it would “almost certainly have retrogressive effect: it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty.” The judges pointed out that the legislature had “defeated several amendments that could have made this a far closer case” by reducing the burden on those most heavily affected by the law.
But when the Supreme Court gutted a key provision of the Voting Rights Act in 2013, federal authorities lost their power to stop the law before it went into effect. Texas moved forward to implement it.
The federal government filed a new challenge to the law, arguing that it was passed with the specific purpose of discriminating against Hispanic citizens. The Justice Department said that the law was enacted “against a backdrop of dramatic growth in the State’s Hispanic population” and that the legislative debate “contained anti-immigrant rhetorics.” Texas lawmakers offered “virtually no evidence” that in-person voter impersonation was a serious problem, the department said.
U.S. District Judge Nelva Gonzales Ramos ruled against the law in October 2014, finding that those who passed the measure “were motivated, at the very least in part, because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.”
A three-judge panel of the U.S. Court of Appeals for the 5th Circuit found in 2015 that the law would have a discriminatory impact, but didn’t reach a conclusion on whether the law was intentionally discriminatory. Then the full appeals court took up the case and ruled in July 2016 that the law violated the Voting Rights Act. Texas was then required to make sure that the state’s voters understood the law was not fully in effect for the November election and to ensure that no voters were disenfranchised because they lacked specific forms of identification.
The Supreme Court said Monday that it would not review the 5th Circuit ruling for now, but Chief Justice John Roberts suggested Texas could bring the case to the high court down the line.
Meanwhile, President Trump said on Wednesday morning that he’d be asking for a “major investigation” into voter fraud.
Under then-President George W. Bush, the Justice Department launched an extensive effort to identify voter fraud. After five years, investigators had found “virtually no evidence of any organized effort to skew federal elections,” according to a 2007 New York Times story.
Across the nation, there’s simply no evidence of widespread voter fraud, especially the type of in-person voter impersonation that voter ID laws could possibly prevent. But strict voter ID laws requiring a very limited range of forms of identification can keep significant numbers of people from being able to exercise the franchise.
Trump has insisted, against all logic and evidence, that 3 to 5 million “illegals” cost him the popular vote, which he lost to Hillary Clinton. The White House confirmed this conspiracy theory is actually a thing that Trump believes.
Do you work in a federal agency? Email us at firstname.lastname@example.org and let us know what you’re seeing and hearing. To email us on an encrypted channel, create a protonmail.com account and use it to write to email@example.com. Note that it’s only as secure as it can be if you’re using the same encrypted email network on your end. It’s not secure to do so on your work computer. Beware that no email network, no matter how sophisticated, is 100 percent secure all the time. Read more on Protonmail here.