A Federal Appeals Court has struck down Texas’s Voter ID law, virtually guaranteeing that the issue will make its way to the Supreme Court, possibly in the upcoming term that begins in October:
A Federal appeals panel ruled Wednesday that a strict voter identification law in Texas discriminated against blacks and Hispanics and violated the Voting Rights Act of 1965 — a decision that election experts called an important step toward defining the reach of the landmark law.
The case is one of a few across the country that are being closely watched in legal circles after a 2013 Supreme Court decision that blocked the voting act’s most potent enforcement tool, federal oversight of election laws in numerous states, including Texas, with histories of racial discrimination.
While the federal act still bans laws that suppress minority voting, it has been uncertain exactly what kinds of measures cross the legal line since that Supreme Court ruling.
The Texas ID law is one of the strictest of its kind in the country. It requires voters to bring a government-issued photo ID to the polls. Accepted forms of identification include a driver’s license, a United States passport, a concealed-handgun license and an election identification certificate issued by the State Department of Public Safety.
Wendy R. Weiser, the director of the democracy program at the Brennan Center for Justice at New York University School of Law, called the ruling “great news for voters in Texas and for the country.”
“It does show the continuing relevance of theVoting Rights Act even in its weakened form,” said Ms. Weiser, whose organization helped represent some of the plaintiffs in the suit.
“But it’s bittersweet because we’ve now gone through a federal election with this discriminatory voting law in place.”
The plaintiffs, including individual voters, civil rights groups and the Department of Justice, said it was discriminatory because a far greater share of poor people and minorities do not have these forms of identification and lack easy access to birth certificates or other documents needed to obtain them.
In a sweeping ruling in 2014, a federal district court in Texas agreed with the plaintiffs about the effect the law had on minority voters.
But it also said legislators had intentionally adopted a discriminatory law, a conclusion that could have led to a restoration of federal oversight over Texas voting laws.
Although the appeals court upheld the finding of discriminatory effect, the three-judge panel said the lower court must re-examine its conclusion that Texas acted with discriminatory purpose.
Texas could appeal to the full Fifth Circuit Court of Appeals in New Orleans or the United States Supreme Court.
In a statement issued Wednesday afternoon, Gov. Greg Abbott did not say whether the state would appeal.
But the governor did say, “Texas will continue to fight for its voter ID requirement to ensure the integrity of elections in the Lone Star State.”
In a 147-page opinion issued in the fall of 2014 after a two-week trial, a district court judge, Nelva Gonzales Ramos, said the law “creates an unconstitutional burden on the right to vote” and blocked its enforcement
She noted the lack of evidence that voter fraud was a threat and cited expert testimony that about 600,000 Texans, mainly poor, black and Hispanic, lacked the newly required IDs and often faced obstacles in obtaining them.
Texas appealed her decision to the Fifth Circuit, which, without deciding the issues, put the identification law back into effect, saying it would be too disruptive to change the rules so close to Election Day.
The appeals panel said Wednesday that because illegal intent to discriminate had not been established — in passing the law, legislators declared an interest in preventing voter fraud — the district court in Texas should seek ways to alter the voter law short of overturning it entirely. The state could, for example, reinstate the acceptance at the polls of certain forms of identification that may be more easily available.
Apparently referring to that part of the ruling, the Texas attorney general, Ken Paxton, said in a statement Wednesday that the decision was a “victory on the fundamental question of Texas’ right to protect the integrity of our elections,” adding that “our state’s common sense voter ID law remains in effect.”
But civil rights advocates focused on the court’s decision to uphold Judge Ramos’s finding that the ID law had a discriminatory effect, thus violating Section 2 of the federal Voting Rights Act.
The appeals court said it did not need to decide whether the law also violated provisions of the Constitution, like the 14th Amendment, and it rejected Judge Ramos’s finding that it amounted to an illegal poll tax.
The evidence that the law violated Section 2 was relatively strong, said Justin Levitt, an elections expert at Loyola Law School in Los Angeles, because the racial difference in impact was striking.
Today’s ruling came in a case that received widespread attention last year as it made its way through trial and arguments at the District Court level. Last October, a Federal District Judge in Corpus Christi not only struck down the Texas law but did so in a ruling in which she found that the legislature had acted with the specific intention of suppressing minority votes through the guise of a Voter ID law. Among other things, the Judge’s ruling mandated that the law could not be enforced even though it had been issued less than a month prior to Election Day. Subsequently, the Fifth Circuit overturned the District Judge’s ruling regarding the stay in the enforcement of the law based in no small part on a Supreme Court precedent regarding judicial changes to election laws in advance of Election Day. The Supreme Court sustained the Fifth Circuit’s decision on the stay, meaning that the Voter ID law was enforced during the 2014 election. In today’s ruling the Fifth Circuit at least partly agreed with the District Court in finding that the Voter ID law violates the Voting Rights Act, however it stopped short of agreeing with the District Court’s finding that there was evidence of intent to discriminate and ordered the case remanded back to the trial court for further proceedings on that issue.
Rick Hasen examines the two key parts of the case:
1. Discriminatory purpose. In a key loss for plaintiffs, the 5th Circuit remanded the question of racially discriminatory purpose to the trial court, under a standard that will likely be very hard to meet. Discriminatory purpose matters for a really important reason: not only will lead to a finding of the law’s unconstitutionality and violation of section 2 of the Voting Rights Act, it can also provide the basis (under Section 3 of the Act) for the court to order Texas “bailed-in” for federal oversight (“preclearance”) for up to 10 years. The 5th Circuit started its purpose analysis by noting: “We recognize the charged nature of accusations of racism, particularly against a legislative body, but we also recognize the sad truth that racism continues to exist in our modern American society despite years of laws designed to eradicate it.” It said that the trial court erred in finding discriminatory purpose based upon (1) old evidence of Texas’s official racial discrimination in voting; (2) statements from opponents of the law about the purpose of the majority passing it; and (3) post-enactment statements, again mostly by opponents of the law. It said the trial court needs to find stronger evidence of contemporaneous statements and actions of the legislature in reaching this decision. So this issue gets remanded, but the onerous standards means it will be very tough to prove such purpose.
2. Discriminatory effect under Section 2. This is the big win for the plaintiffs. The 5th Circuit adopted the two part “vote denial” test for Section 2 claims used by the 4th and 6th circuits (which is probably the standard that the trial court in the North Carolina voter id case will apply). Applying the test, the 5th Circuit affirmed the trial court’s finding of a Section 2 violation. It upheld the finding that the law will have a discriminatory impact on minority voters—that is, minority voters are disproportionately likely to lack one of the types of ID which are allowed under Texas law. Then, applying the “totality of circumstances” test/Gingles/Zimmer/Senate factors, the 5th Circuit found enough evidence to sustain a finding that SB 14 “produces a discriminatory result that is actionable because [it] . . . interact[s] with social and historical conditions in Texas to cause an inequality in the electoral opportunities enjoyed by African-Americans and Hispanic voters.” Particularly interesting in this analysis is the question whether Texas’s explanations for why it needed its law (antifraud, voter confidence) were tenuous. The trial court found that they were because the evidence did not support the need for voter id for either of these purposes, and this factor worked in favor of finding of a Section 2 violation. Also interesting is that the 5th Circuit relied (as I anticipated) on the Supreme Court’s recent Texas housing case in finding enough evidence of disparate impact. “As such, we conclude that the district court did not clearly err in determining that SB 14 has a discriminatory effect on minorities’ voting rights in violation of Section 2 of the Voting Rights Act. As discussed below, we remand for a consideration of the appropriate remedy in light of this finding in the event that the discriminatory purpose finding is different.”
Where the case goes from here is hard to say. Texas could decide to seek an appeal of the matter to the full Fifth Circuit Court of Appeals. Given the fact that the majority of the Judges on the full Court were appointed by Republican Presidents, this might seem like a smart strategy, but it’s worth noting that one of the members of the unanimous panel in this case was appointed by George W. Bush and the granting of en banc appeal is entirely discretionary. Alternatively, the state could allow the case to go back down to the District Court for further proceedings there on the discriminatory effect and other issues that the panel remanded back to the trial judge. One advantage here is that the law would remain in effect while this process continues since the Fifth Circuit declined to issue a new stay against enforcement of the law at this time. Finally, of course, the state could choose to appeal the entire matter to the Supreme Court, which could end up agreeing to take the matter during its current time and thus adding yet another high profile voting rights case to its docket for the coming term. Already, the Court has agreed to accept a case regarding the drawing of legislative districts in which it will be required to rule on the meaning of “one person, one vote,” and whether that means that districts should be drawn based on total population or only on the population of those eligible to vote. Adding this case to the docket would make the next term one of the most important for election law in quite some time. It’s also possible, of course, that the Justices could decide to defer accepting the Texas case at this time. Just last fall, for example, they declined to hear the appeal of a ruling upholding Wisconsin’s Voter ID law and the fact that this case is at least theoretically not resolved at the trial level given the Fifth Circuit’s ruling suggests that the Justices may be inclined to let this matter play out in the lower courts before stepping in to this issue any more than they did when they upheld Indiana’s Voter ID law seven years ago.
Politically, of course, this partial victory for opponents of Voter ID laws is likely to reinvigorate the debate over such laws even further. At this point, there are few states controlled by Republicans that have not enacted some version of a law requiring voters to present identification in order to vote so I wouldn’t expect much movement on that end of the spectrum. Opponents, however, are likely to be somewhat emboldened by this ruling and that may lead to challenges against laws in other states, as well as serving as potential precedent for cases involving similar laws that are pending around the country. As I have said before, on general principles I don’t see anything at all objectionable about the idea that people should be required to provide some proof of identity when they vote. Indeed, the argument that they shouldn’t have to do this at all strikes me as entirely illogical given the fact that people are required to present identification for any number of mundane daily activities. Making voting one of them certainly seems reasonable in the abstract. The problem with the idea comes in the implementation, and there are plenty of studies that show that these laws have a disparate impact on minorities and the poor due to the difficulty in obtaining proper identification, a problem that seems to be especially acute in rural areas in Texas where the offices that one can obtain the necessary documents are not exactly conveniently located for people lacking regular transportation. Add to this the fact that there is little evidence that in-person voter fraud is a serious problem, and the arguments for how important this legislation is to begin with seem to become much less persuasive. At the very least, it suggests that if Voter ID laws are going to be passed, then they should include provisions to make it as easy and inexpensive as possible for people get the identification to exercise their right to vote. Anything less seems guaranteed to create the problems apparent in Texas.
Here’s the opinion:
