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Ted Cruz makes a Texas-size mess on voter ID and racism

During a Senate Judiciary Committee hearing on Sept. 22, Sen. Ted Cruz (R-Tex.) asked legal experts about the impact of state voter ID laws. (Video: Senate Judiciary Committee)
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Sen. Ted Cruz (R-Tex.) had a clear agenda when he questioned witnesses at a hearing on voting rights Wednesday: He wanted them to call voter ID laws racist.

He wound up getting more nuance than he planned for, though. So he bulldozed right past it.

The exchange with professor Franita Tolson of the University of Southern California’s law school has gotten the headlines. In it, Tolson told Cruz to his face that Texas had a racist voter ID law.

But focusing on that undersells how torturous Cruz’s presentation was. The senator tried to paint the witnesses’ views of how racist voter ID laws are with an extremely broad brush — repeatedly in ways that ran afoul of what the witnesses were actually saying. It was something of a case study in how to mischaracterize an issue for political gain.

Let’s break it down.

CRUZ: In your judgment, are voter ID laws racist? Professor Tolson.
TOLSON: Thank you for your question. So, it depends. One thing we have to stop doing is treating all voter ID laws as the same —
CRUZ: Okay, so your answer — I want to move quickly. So “it depends” is your answer.
TOLSON: Yes, that’s my answer.

That “it depends” answer is an increasingly frequent one from Democrats, who have emphasized in recent months that they don’t dismiss all voter ID laws out of hand. And Democrats have supported a voter ID proposal by Sen. Joe Manchin III (D-W.Va.).

Then comes the headline exchange.

CRUZ: Okay, so what voter ID laws are racist?
TOLSON: Apologies, Mr. Cruz. Your state of Texas, perhaps?
CRUZ: Okay, so you think the entire state of Texas is racist? What about requiring an ID to vote is racist?

Tolson, in fact, said neither of the things Cruz suggested she had. She didn’t say that the “entire state of Texas is racist.” And she didn’t say that “requiring an ID to vote is racist.”

Just because a state’s legislators pass a law doesn’t mean that measure is a reflection of the entire populace, which should really go without saying. In fact, legislation can pass based upon the votes of lawmakers installed by a relatively small minority of a state’s voters. It’s a ridiculous assertion that someone like Cruz, an accomplished lawyer who has argued in front of the U.S. Supreme Court, has to know better about.

Tolson called this out in another rather blunt response — at which point Cruz moved on to addressing her actual claim.

TOLSON: So I think, sir, that’s pretty reductive. I'm not saying the entire state of Texas is racist.
CRUZ: You just said my state of Texas. So you tell me what about the Texas voter ID laws is racist.
TOLSON: Absolutely. So the fact that the voter ID law was put into place to diminish the political power of Latinos, with racist intent, and has been found to have racist intent —

Cruz pressed her on the point.

CRUZ: You're asserting that. What's your evidence for that?
TOLSON: The federal district court that first resolved the constitutionality of Texas’s voter ID law.

Cruz seemed to ask the question as if Tolson’s claim were mere conjecture. But the evidence Tolson cited backed her up.

A federal court in 2015 ruled that Texas’s 2011 voter ID law "constitutes an unconstitutional poll tax.” The state appealed the ruling, and a federal appeals court ruled that, although it wasn’t a poll tax, it did have a “discriminatory effect.” That ruling was later affirmed.

Texas later passed a new law scaling back the ID requirement, which was again struck down before an appeals court upheld the law.

(A GOP witness later cited the updated law, but Tolson’s point didn’t necessarily pertain to that. Both that witness, Hans von Spakovsky of the Heritage Foundation, and the GOP’s other witness, Maureen Riordan of the Public Interest Legal Foundation, maintained voter ID laws were not racist.)

Cruz summed up the exchange, while moving to the next witness, Asian Americans Advancing Justice President John C. Yang.

CRUZ: Okay, so your view is voter ID laws are racist. How about you, Mr. Yang?

Again, this is not what Tolson said. But Cruz was intent upon pretending as if she had.

So Yang again emphasized that the point was that voter ID isn’t inherently racist but can be.

YANG: I agree with Professor Tolson. Voter ID laws can be racist.
CRUZ: That’s two.

It’s not two if the argument, as Cruz suggested, is that they are saying “voter ID laws are racist.”

Cruz then turned to a third witness, Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund (MALDEF), who echoed the point that only “some” voter ID laws are racist.

CRUZ: Mr. Saenz?
SAENZ: There are some voter ID laws that are racially discriminatory in intent.
CRUZ: How about in practice? In intent, fine, you say there’s some racist with a malevolent intent lurking in the back of their mind. But let’s just talk about [it] as a practical matter. When I go to vote, they ask me for my ID. I pull out my ID. I show it to them. I vote. Is that racist?

Again, Cruz seemed to want the witnesses to paint everyone even tangentially involved as racist — potentially up to and including the poll workers abiding by the voter ID law.

And again, the witness offered much more nuance, saying that the effect of the law (though not necessarily the person who abides by it) is indeed discriminatory.

SAENZ: If the law that requires you to do that was motivated by racially discriminatory intent, under our Constitution —
CRUZ: What about the effect? Set aside intent. Set aside intent, I’m asking about the effect.
YANG: Yes, in effect, I think that there are discriminatory effects from a number of voter ID laws.

This is a pretty noncontroversial statement. If the law is discriminatory, it logically follows that carrying it out — whatever one’s personal intentions and wherever the blame lies — is also, in effect, discriminatory. Cruz’s effort to loop the poll workers into this alleged discrimination is very much akin to him asking, “So you think the entire state of Texas is racist?”

Cruz later wrapped up the exchanges on whether voter ID is racist by allowing for the actual nuance in the responses — but then, just as quickly, again mischaracterizing what the witnesses had said.

CRUZ: The record should reflect all three of the Democratic witnesses invited by the chairman maintained to this committee that voter ID laws can be, in many instances, in most instances — I think are the various ways they formulate it — are racist.

But none of them said “in most instances” or anything like it. They said “can be.” They said “some.” They said “it depends.” They never quantified it.

Cruz, though, had a point to make, and he soon made clear what it was. He concluded the exchanges by citing the 35 states that have some kind of voter ID law on the books and the 81 percent of Americans who support voter ID, according to one public opinion poll. He contrasted that with a supposedly small minority of “radicals” who were hijacking the issue.

Again, though, there was a huge logical disconnect. It’s true that 35 states have voter ID laws, but most are not considered strict, and only seven actually require photo ID, according to the National Conference of State Legislatures.

In other words, many of those voter ID laws could actually be in line with what the witnesses were suggesting might be acceptable.

But Cruz was intent upon pretending as if they were writing off all or even most voter ID laws as racist — and potentially, by extension, the people who either live in states with such laws or support voter ID more broadly.

Perhaps we should heed Tolson’s advice and not treat all voter ID laws the same. It would probably make for a better public policy debate.