Report: Day One of DOJ's Trial Against Texas Anti-Voter Fraud Laws

Report: Day One of DOJ's Trial Against Texas Anti-Voter Fraud Laws

Last week, Breitbart News reported on the partisan Democratic campaign organization Catalist, headed by Harold Ickes. Catalist was hired by the Department of Justice as its data analysis firm in the trial that just opened over the Texas voter ID law.

As the trial commenced on Monday, the claims made by the Justice Department, based on the supposedly “objective” data analysis of Catalist and DOJ’s “experts,” changed once again. DOJ also presented a bizarre radical professor as a witness on Tuesday on the motives of Texas legislators.

On March 12, Thomas Perez, the Assistant Attorney General of Civil Rights, claimed in a letter to Keith Ingram, the Director of Elections in Texas, that “the total number of registered voters who lack a driver’s license or personal identification card issued by DPS could range from 603,892 to 795,955.” However, on June 1, the report of Stephen D. Ansolabehere, hired by DOJ as another of their experts, claimed that “1,893,143 records on the V[oter] R[egistration] files could not be matched to valid records on the state identification lists provided” to Ansolabehere.

There was a reason that Ansolabehere’s numbers were so large — apparently, DOJ did everything it could to avoid finding out what types of photo ID were actually held by the almost 13 million registered voters in Texas. According to Ansolabehere’s deposition on June 22, the Justice Department refused to compare the Texas voter registration list to federal databases that would have matched Texas voters to forms of federal identification acceptable under the Texas law — and that would have identified non-citizens who are illegally registered to vote. Ansolabehere conceded in sworn deposition testimony that he would have preferred to compare the state’s voter registration records to federal passport, military ID, and immigration databases — but he was denied access by the Justice Department: “It would have been great to know those other [federal] ID forms, but we were not allowed to access those databases.”

Texas has a known problem of non-citizens registering to vote in the state. And as the lawsuit filed by Florida recently against the Department of Homeland Security demonstrates, the Obama administration defiantly refuses to follow federal law and provide citizenship-status information to states to verify voter registration information on suspected non-citizens. Allowing DOJ’s expert access to that information would then have provided Texas with the ability to review the same information and remove non-citizens from the voter rolls.

Paul Bettencourt, the former voter registrar for Harris County, Texas, testified before Congress in 2006 about the continuing problem of illegal voting by foreign citizens in Harris County. In 1997, the Immigration and Naturalization Service headquarters in Washington refused to cooperate in a criminal investigation by the FBI and the U.S. Attorney’s Office in Dallas of voting by non-citizens. An INS official was quoted as saying that the INS bureaucracy did not “want to open a Pandora’s Box…If word got out that this is a substantial problem, it could tie up all sorts of manpower. There might be a few thousand [illegal voters] in Dallas, for example, but there could be tens of thousands in places like New York, Chicago or Miami.” 

The Justice Department’s refusal to allow its expert to check state department and Pentagon records deliberately ignores the fact that there are more than 85 million passports issued to Americans. The Veterans Administration reports that there are about 22.7 million veterans age 17 and over in the U.S., each of whom would have an acceptable military ID card. That kind of data could also substantially reduce the number of Texans who supposedly don’t have an ID, particularly given the fact that Texas has a very large number of veterans and current members of the armed forces.

Ansolabehere also said that he was not instructed to determine how many voters actually lacked a photo identification. Instead, he was limited to determining how many voter registration records he could match to the state’s photo-identification database. He acknowledged during sworn testimony that he made no effort whatsoever to clean up the list of voters who were ineligible to vote, and he admitted that more than 50,000 dead voters were included on the DOJ’s no-match list.

By Monday when the trial started, DOJ’s claim about the number of Texans without a photo ID had changed once again. This time, Elizabeth Westfall, the DOJ lawyer leading the charge against Texas, claimed that “at least 1.4 million registered voters in Texas lack any form of state-issued ID accepted under SB 14, and those voters are disproportionately Hispanic and black.”

Westfall failed to mention to the court the hundreds of thousands of ineligible voters that DOJ, Catalist and Ansolabehere deliberately left on its list. The expert hired by the state, University of Texas Professor Thomas Sager, analyzed the DOJ’s list of those who supposedly lack photo identification and found:

  • More than 57,000 of the voters were listed as “deceased” in the Texas Department of Public Safety’s driver’s license database.
  • More than 290,000 of the voters are over the age of 65 — and therefore able to cast mail-in-ballots without having to show any photo identification.
  • More than 260,000 voters are listed as “in suspense” on the Secretary of State’s Voter Registration List because they had moved or left the state — and therefore are ineligible to vote.
  • More than 450,000 were successfully matched to state-issued photo identification records — an obvious, plain, and grievous “error” by DOJ.

The last mistake proved to be quite embarrassing to DOJ on the first day of trial. Two of the individuals listed by the Justice Department and its collection of “experts” as not having a photo ID included Texas Election Director Keith Ingram and his wife, both of whom have Texas driver’s licenses, as Ingram testified on the stand.  DOJ and Ansolabehere also made other mistakes that led Sager to conclude that more than 1.45 million voters were incorrectly listed by DOJ as not having an ID.

By the way, Ansolabehere is on record in his prior academic research as saying that voter ID laws prevent “almost no one” from voting and that “there may be little or no voting rights issue involved in the dispute over Voter ID rules.”  In fact, he concluded that “this debate rests more on phantoms of the past than the realities of the present” and that “identification seems a reasonable requirement for ensuring that only those who are qualified are allowed to vote.”

Texas had another expert, Prof. Daron Shaw, conduct a representative survey of a sample of the voters that DOJ claimed had no ID.  He found that 73 percent reported they actually had a Texas driver’s license. The survey also showed that 39 percent had passports and 18 percent had military IDs.  Once the voters over age 65 who don’t need an ID to vote were eliminated, the survey revealed that 1.9 percent of whites, 0.96 percent of Hispanics, and 1.23 percent of blacks will have to obtain a free photo ID.  Shaw concludes that “there is no statistically significant difference in ID possession rates amongst whites, blacks, and Hispanics” contrary to the false claims made publicly by DOJ (his report also showed that Catalist’s race-matching data is largely flawed – only 68 percent of voters that the Ickes firm claimed are African-American self-identified as black).

What is clear is that DOJ failed to remove ineligible voters like the deceased from its list, made basic errors that exponentially magnified the supposed list of individuals without a state-issued photo ID, and deliberately and intentionally prevented its own experts from accessing any federal ID databases that would have also reduced the number of Texans who supposedly don’t have ID or that would have identified non-citizens registered to vote in the state.  Thus, DOJ’s claims of disenfranchisement all turn out to be nothing but smoke and mirrors.

If you think the deliberate sabotaging of data analysis is bad, it gets worse. Who did the Justice Department call as its “expert” on Tuesday to testify that Texas legislators passed the voter ID law to discriminate against minority voters? Professor Morgan Kousser, a social scientist from Cal Tech. His independence as an expert should be severely questioned by the court. He is a partisan, left-wing Democrat with extreme views about the racial motivations of the Supreme Court. Despite almost no experience with Texas, he was presented as the Department of Justice’s expert to say that Texas’s law is based on discriminatory intent.

Some might question Professor Kousser’s objectivity, given that he admitted in his deposition that he had contributed to Barack Obama presidential campaign in 2008 and 2012 when Obama’s attorney general has made DOJ’s fight against voter ID a hallmark of the administration and the re-election campaign.

Kousser is not an expert on Texas politics. Yet he is opining “that every” legislator who supported voter ID did so with a racially discriminatory purpose (including the Hispanic and black members who voted for it). That apparently included the two Democrats who voted for it, Rep. Craig Eiland (D-Galveston) and Rep. Joe Pickett (D-El Paso), as well as the five Hispanic members of the legislature (Jose Aliseda, John Garza, Larry Gonzales, Aaron Peña, and Raul Torres), two African-Americans (Stefani Carter and James White); and one Asian-American (Angie Chen Button) who supported the bill.

Kousser doesn’t just fault the legislators. He also said that even if a majority of Hispanics in Texas want photo ID, than the bill that was passed “still has a racially discriminatory purpose.” That is because “constituents are not terribly knowledgeable about a subject.” Apparently, professors from Cal Tech know what’s best for Texas voters because the poor dears just aren’t smart enough to make their own decisions.

In fact, to the extent that any Democrats, Hispanics and blacks favored voter ID, that support “was the result of manipulation by Republican proponents of photo voter ID.” Kousser bizarrely cites the anti-voter ID editorials of Texas newspapers, such as the famously liberal Austin American-Statesmen, as evidence that there “was a racially discriminatory purpose behind the Texas photo ID bill,” and he admitted that it was those newspaper editorials that were part of the basis for his opinion. So if opponents to voter ID can gin up anti-ID editorials in their favorite newspapers, DOJ’s “experts” can then use that as evidence that the legislators who passed the law had a discriminatory intent; no matter what the actual facts of the passage were.

But then, Prof. Kousser seems to believe almost anyone who acts in a way he disagrees with is acting with racial animus. Kousser was cross-examined by Texas over his book, “Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction,” in which Kousser actually compares the 1993 case of Shaw v. Reno to Plessy v. Ferguson and Dred Scott v. Sanford.

In Shaw, the Supreme Court said that race could not be the predominant factor in redistricting and that any use of race should be subject to strict scrutiny. In other words, the court was trying to prevent racial discrimination in the redistricting process. And yet Kousser says that Shaw was “wrong — as wrong as Plessy, as wrong as Dred Scott,” two cases that 1) sanctioned racial segregation and 2) endorsed slavery and denied constitutional protection to black Americans. In fact, Kousser makes the almost unbelievable claim that “Dred, Plessy, and Shaw all buttressed a seemingly uncertain white supremacy.” So in his eyes, Supreme Court justices William Rehnquist, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, all of whom voted in the majority in the Shaw decision, are white supremacists.

O’Connor, who wrote the majority opinion, threw out a bizarrely-shaped, racially gerrymandered congressional district in North Carolina because “racial gerrymandering even for remedial purposes, may balkanize us into competing racial factions” and “threatens to carry us further form the goal of a political system in which race no long matters.”

But according to Kousser, O’Connor was not acting according to principles of equal treatment under the law and protecting against racial discrimination. According to Kousser, on page 467 of his book, she was using “easy slogans” that were really “prejudices disguised as principles” and was employing “‘colorblind’ rhetoric in what is actually an attempt to redeem white supremacy once more, by deconstructing the Second Reconstruction.” In his deposition testimony, Kousser also accuses Justice Scalia of a “massive distortion” of U.S. history and that his opinions are all “racially discriminatory.”

Kousser stated in his deposition that he believed the Supreme Court “wrongly decided” Crawford v. Marion County, the 2008 decision in which the Court upheld Indiana’s voter ID law. It is hard to believe that Kousser’s assertion that he knows better than a six-justice majority in Crawford would not bias his supposedly “objective” opinion in the Texas case. He is not even a lawyer, and it is unclear why his opinion is being sought in the first place on the supposed motivations of the legislators. He is not a legal expert explaining some specific aspect of applicable law. It is up to the judges in this case to make their determinations of the motives of the legislators based on the evidence of fact witnesses. The conclusions of an Ivory Tower academic based on newspaper editorials is completely irrelevant and would hardly seem to meet the minimum requirements for expert witnesses.

Kousser also made it clear in his deposition that he doesn’t think much of voter-fraud prosecutions. He thought the attorney general of Texas should spend his time and resources prosecuting environmental crimes as opposed to actual cases of voter fraud. Kousser particularly did not think that non-citizens who register and vote should be prosecuted — which certainly is in accord with DOJ’s data analysis that carefully avoided exposing any non-citizens on the Texas voter rolls.

How much crazier and bizarre an expert could you get? And yet that is the radical “expert” testifying for DOJ this week in its attempt to stop a common-sense election reform supported by a majority of the legislators and voters of Texas.

And talk about misrepresentation!  On Tuesday, the chairman of the Mexican American Legislative Caucus, Rep. Trey Martinez Fisher (D-San Antonio), who led the opposition to voter ID in the Texas House, was put up as a witness by the Justice Department.  In cross-examination by Texas, Fisher had to admit that the statements he had made in the midst of the legislative debate that his 74-year old mother would be unable to vote because she didn’t have a Texas driver’s license were untrue.  Not only did she have a license at the time Fisher made that false claim, she renewed it last August.

Of course, the subjective manipulation of the voter registration data and the use of such an unqualified and biased “expert” as Kousser should also be no surprise. DOJ’s lead lawyer in the case, Ms. Westfall, was one of the new political hires in the career ranks at the Justice Department as outlined in series at Pajamas Media. As that story pointed out:

According to the Federal Election Commission website, she contributed nearly $7,000 to Barack Obama’s 2008 presidential election campaign, contributed another $4,400 to Hillary Clinton’s 2008 presidential campaign, contributed $2,000 to Wesley Clark’s presidential campaign in 2004, contributed $3,000 to John Kerry’s presidential campaign and compliance fund in 2004, contributed $500 to former Senate Democratic Majority Leader Tom Daschle’s PAC in 2004, and contributed $2,000 to Hillary Clinton’s U.S. Senate campaign in 2000.

In addition to this incredible funding of Democratic candidates, Westfall worked for six years at the far-left Advancement Project, directing its Voter Protection Program and managing its litigation and advocacy activities. She also previously served as a staff attorney at the Washington Lawyers’ Committee for Civil Rights in its Fair Housing Group, and worked on the Hill as a legislative assistant to then-Congressman Bill Richardson (D-NM).

On Westfall’s self-drafted Harvard alumni biography, she notes that she has testified before the U.S. Congress about supposed “barriers” to voter registration, “unwarranted” purging of the voter rolls, and voter caging. While those subjects may sound benign, in fact, the Advancement Project and the Lawyers Committee claim that common-sense reforms like voter ID or requiring proof of citizenship are “barriers” to voting and registration and that removing voters who have moved or otherwise become ineligible to vote is “unwarranted purging.”

“Vote caging,” an imaginary crime the Left dreamed up several years ago, faults any efforts by private parties to challenge the eligibility of voters when first-class mail sent to their registration addresses is returned by the U.S. Postal Service as undeliverable because they no longer live there. This despite the fact that federal law specifically authorizes election officials to use the USPS for that very purpose. Just the kind of neutral, detached attorney a state wants reviewing its redistricting submissions and applying the heavy hand of the federal government in voting rights enforcement actions.

Apparently, contributing to Obama’s presidential campaign can get you hired into a career civil service position at the Justice Department. Or get one hired as an “expert” earning big fees that will be paid for by taxpayers because of your crackpot views of racial discrimination and voter ID requirements.

Let’s hope the judges in the Texas case recognize the misleading and biased nature of the Justice Department’s case. If not, this is an issue that Texas will need to appeal all the way to the Supreme Court.

Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation and the former Counsel to the Assistant Attorney General for Civil Rights at the Justice Department.


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