Under Section 5 of the Voting Rights Act, Texas has the burden of proving that its proposed voter ID law isn't discriminatory. DOJ officials told Texas in a letter in November that it had provided "incomplete" information on the voter ID law signed by Gov. Rick Perry. The Justice Department blocked a voter ID law in South Carolina (which is also covered under Section 5 of the Voting Rights Act) because the state's data showed the law would have a greater impact on non-white residents.
Abbott's lawsuit argued that it wasn't a Section 5 violation even "if minorities may be statistically less likely than whites to currently possess" government issued photo ID.
"Even if DOJ contends that Senate Bill 14 has the unintended effect of 'denying' or 'abridging' the voting rights of those who do not possess a government-issued photo identification, it does not do so on account of their race or color -- it does so on account of their decision not to obtain the identification that the State offers free of charge," the state argues.
Texas also argues that the court has to rule in their favor in order to "avoid the grave constitutional question of whether section 5 exceeds Congress's enforcement power under Section 2 or the Fifteenth Amendment" or "violates the Tenth Amendment" or "violates Texas's right to 'equal sovereignty'."
"A finding that covered jurisdictions cannot adopt a commonsense voting change already found to be non-discriminatory by the Supreme Court would highlight the constitutional difficulties with section 5," they argue.