In one of the more awkward exchanges, Hughes offered a semi-defense of literacy tests after one judge said that the reason literacy tests were racist years ago was because of inequalities in the education system. The judge asked if it was Texas' theory that there would be a problem with literacy tests today. Setting aside other laws banning literacy tests and poll taxes, Hughes said he did not believe a literacy test would violate Section 5 of the Voting Rights Act.
When a judge noted that some voters would have to travel 120 miles to the nearest DMV to obtain a voter ID, Hughes argued that people in those areas had to travel "long distances to do any number of things." The judge pointed out that people who live more than 100 miles from a courtroom aren't even allowed to be subpoenaed because it is "unduly burdensome," but Hughes argued that traveling far distances was a "reality to life of choosing to live in that part of Texas."
The panel of judges were also highly critical of how Texas handled discovery during the case, pointing out that they did not request federal records about what Texas residents had forms of federal identification, such as passports. (Texas was making the case that many individuals who did not have a Texas drivers license might have a federal form of ID.)
Matthew Colangelo, a deputy assistant attorney general in DOJ's Civil Rights Division, argued that Texas' voter ID law was "exactly the kind of law Congress had in mind" when it passed the Voting Rights Act. He said surveys indicating that even the majority of African-Americans and Latino voters believe voter ID laws are okay shouldn't weigh on the case.
"If there were a poll that said literacy tests or poll taxes were popular, that wouldn't keep the court from striking them down," Colangelo said.
Colangelo, whose boss Assistant Attorney General Tom Perez listened in on a portion of closing arguments from an overflow room at the courthouse, told the judges it was important to look at the passage of the voter ID law within the context of "tremendous population growth" within Texas' Latino community.
He argued that the bill gives discretion to poll watchers when matching individuals to names on the voter rolls and could give them "the opportunity to discriminate against Hispanics."
"Texas has not met its burden," Colangelo argued.
J. Gerald Hebert, a well-known civil rights lawyer representing those intervening in the case, argued during his closing that the threat of voter fraud was "merely a pretext, a cloak" for a voter suppression effort and that Texas' effort had been "tinged with race from day one." He asked the court make an affirmative finding that the law was enacted with a discriminatory purpose.
The trial, which lasted five days, came about after DOJ objected to the measure signed by Gov. Rick Perry (R), arguing it would have an unfair impact on minorities. Texas had sued DOJ in January for not clearing the law in a timely manner. A voter ID law in South Carolina, a state also covered by Section 5 of the Voting Rights Act, will have its day in court later this summer.