Sept. 15, 2016 - The lead counsel who led the fight to reverse the Texas voter ID law and an election law specialist from the conservative Heritage Foundation squared off in a debate on the issue Tuesday at the University of Houston Law Center.
Chad Dunn, of the Houston firm of Brazil & Dunn, debated current voter ID laws with Hans von Spakovsky, a former member of the Federal Election Commission and the U.S. Department of Justice counsel to the assistant attorney general for civil rights. He has written extensively on both election issues and judicial activism. The debate was hosted by the American Constitution Society and the Federalist Society. UHLC Professor D. Theodore Rave moderated the discussion.
Dunn said while identification requirements vary from state to state, the regulations in place were working effectively.
"This was a solution in search of a problem," Dunn said. "According to the testimony we had in a trial in this case, over decades of investigation revealed throughout the United States about a dozen in-person voter fraud cases that might have been prevented by a voter ID law. It's like choosing to amputate your arm for a cut on your finger."
Von Spakovsky argued requiring a photo ID at the polls is a necessary step if American citizens want to prevent fraud.
"Our democracy depends on fair elections," von Spakovsky said. "When people cheat in elections, that's a strike against the most basic foundation of the country. This is of crucial importance in close elections, and we have close elections all the time in this country, particularly at the local level.
"There is no reason not to require an ID to exercise your right to vote. It is just a basic step that you need to take if you want to have secure elections."
The state revised its voter photo ID law and agreed to a $2.5 million campaign to educate voters about voting requirements in the wake of a July finding by the 5th Circuit Court of Appeals that the state's photo ID requirement was racially discriminatory.
"In Texas, it was the individual choices in the individual construction of this law that resulted in its ultimate failure," Dunn said. "Texas' law was the most restrictive in the country with the least amount of IDs available. We think the evidence shows that these IDs were selected specifically because of the racial makeup of the individuals who held them.
"A majority of the 5th Circuit, a very conservative court made up of judges mostly appointed by Republican presidents, even they were compelled to strike it down."
So far, Texas has declined to appeal the decision to the current eight-member U.S. Supreme Court where a 4-4 split decision would leave the lower court ruling intact. South Carolina recently appealed an order that struck down its voter ID law and a split decision of the high court left that ruling in place.
In its order, the 5th Circuit remanded a question to the Southern District of Texas (Corpus Christi) in which Dunn seeks to prove discriminatory intent. The judge set oral arguments for two weeks into the next legislative session in January during which the state presumably could amend provisions in the law to resolve issues of discrimination.
If Dunn successfully proves discriminatory intent, it could potentially serve as groundwork to reverse Shelby v. Holder, a 2013 landmark decision that struck down a significant core of the Voting Rights Act.
"The issue of voter identification and states' rights will be affected by the upcoming election and future court appointments as well as having an impact on legislative and congressional action," said Dennis Nall 3L, president of the Federalist Society.
"We believe the content of this timely discussion from well qualified advocates close to the issue will help shape the debate and ultimate policy in Texas and nationally," he added.
"Voter photo ID laws threaten the right to vote for millions of Americans, especially people of color and low income voters," said Christina Beeler 3L, president of the American Constitution Society. "The 5th Circuit ruling is a step in the right direction to ensure that all voters have equal access to the ballot."
Click here to watch debate.