The Department of Justice has been waging a battle against Texas' photo ID voting law since last July. That battle became more openly partisan this week when it was revealed that the DOJ hired a progressive voter data firm called Catalist to supplement it's argument before a D.C. court. In a letter to the DOJ, Rep. Lamar Smith of Texas wrote "There is at least the appearance that ... Catalist might prefer that Texas' election laws favor Democratic Party candidates."

History of the Texas Voter ID Law

Because of the history of racial discrimination in the south, the Voting Rights Act of 1965 requires certain states and counties to get "pre-clearance" from the DOJ in order to make any changes to their voter laws. Under Eric Holder, the DOJ has been using this pre-clearance authority to fight voting changes tooth and nail, even when the changes have already been adopted and ruled constitutional in states not under DOJ preclearance authority.

In Texas, a photo ID law was signed into law by Governor Rick Perry on May 27, 2011. The state submitted the new law for pre-clearance with the DOJ on July 25th. At that point the DOJ was supposed to make a ruling within 60 days, but it waited until the last day and then announced that it did not have the information it needed to reach a decision. The DOJ asked Texas to provide information on "the 605,576 registered voters who the State has advised do not have a Texas driver's license or personal identification card, please provide the number of such persons by Spanish surname, as well as an estimated number by race, within county of residence." In a response to the DOJ in October, Texas's Attorney General noted the irony of the DOJ's request "the very reason Texas refuses to maintain racial and ethnic data on its list of registered voters is to facilitate a colorblind electoral process, and Texas adopted this race-blind voter-registration policy shortly after the enactment of the 1965 Voting Rights Act." Delays over this issue continued until, on January 23, 2012, Texas sued the DOJ demanding they make a decision. The DOJ finally rejected the pre-clearance request on March 12, 2012.

The underlying issue in the Texas case--whether states can require photo ID at polling places--has already been decided by the Supreme Court. In 2008, the Court issued a 6-3 decision upholding an Indiana law which became the model on which the Texas photo ID was based. In the majority decision in the Indiana case, Justice Stephens wrote "We cannot conclude that the statute imposes 'excessively burdensome requirements' on any class of voters." But because of the Voting Rights Act, the DOJ has the ability to make its own decision about what is legal in 12 southern states, including Texas. In effect, the DOJ is ignoring the Supreme Court's Indiana decision.

Enter Catalist

The dispute between Texas and the DOJ is scheduled to be heard in a D.C. Court this month. In an effort to bolster its case, the DOJ turned to Harvard political science professor Stephen Ansolabehere who provided an opinion based on data from progressive firm Catalist.

There is no doubt that Catalist is decidedly liberal interest which has been credited with playing a role in the 2008 victory of Barack Obama. As Rep. Smith's letter explains, that's just the tip of the iceberg:

Catalist's clients include the Democratic Congressional Campaign Committee, the Democratic Senatorial Campaign Committee, the Democratic Governors Association, several state Democratic parties, the Texas Democratic Trust, Obama for America, at least 43 Democratic members of Congress and a host of other Democratic and progressive groups.

A "Client" page on Catalist's website offer a more complete list.

Catherine Engelbrecht is the founder of True the Vote, a national voter integrity organization based in Texas. Asked about DOJ's decision to rely on Catalist, Ms. Engelbrecht told me "Catalist isn't the problem; the problem is that the DOJ is relying on a data provider that is openly partisan. Catalist makes no excuses for who they are or who they serve. Who does Eric Holder serve? By all appearances, his first allegiance is to the furtherance of a progressive agenda, not to the American people."

Some, including professor Ansolabehere, will no doubt argue that the data provided by Catalist is not itself partisan, but the fact remains that openly progressive Catalist has been enlisted to bolster the supposedly non-partisan legal argument by the U.S. Department of Justice. The Republican Party also maintains a large voter database. Would it have been an issue if Attorney General Alberto Gonzalez had relied on this GOP provided data to win a case? Would the fact that the underlying data was very similar to the data provided by Catalist matter to the media?

With the hiring of Catalist, the mask has once again slipped at DOJ. Eric Holder is no more concerned about the appearance of non-partisanship in this case than he is about the Supreme Court's ruling in 2008 which ought to have precedent over the Texas law. Holder is seeking a win for his side. The Catalist decision makes clear that's what really matters to this DOJ.