Fifth Circuit affirms that Texas voter ID law violates Voting Rights Act


Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas’ four-year-old voter ID law violates the Voting Rights Act but is not a “poll tax” barred under the U.S. Constitution, a federal appeals court has ruled.

The U.S. 5th Circuit Court of Appeals on Wednesday ruled that the Texas voter ID law – signed into law in 2011 – has a “discriminatory effect” that violates the 50-year old federal law that prohibits racial discrimination in voting, but it is not an unconstitutional “poll tax.”

The ruling, a narrow victory for critics of the law, prolonged a long-winding legal battle over legislation that some called the strictest in the nation.

The New Orleans-based court’s decision sends the case back to a lower court, which will decide whether lawmakers intended to discriminate when they approved the law.

In October, U.S. District Judge Nelva Gonzales Ramos of Corpus Christi ruled that Texas’ voter ID law “constitutes an unconstitutional poll tax.” The state appealed the ruling to the 5th Circuit, arguing that the law improves ballot security and prevents election fraud.

The appeal was heard in April, so relatively speaking this was a lightning-quick decision from the Court. You can see a copy of the ruling at Trail Blazers. I’m going to quote the key bit:

V. Conclusion

For the reasons stated above, we VACATE the district court’s judgment that SB 14 was passed with a racially discriminatory purpose and REMAND for further consideration of Plaintiffs’ discriminatory purpose claims, using the proper legal standards and evidence. We VACATE the district court’s holding that SB 14 is a poll tax under the Fourteenth and Twenty-Fourth Amendments and RENDER judgment for the State on this issue. We need not and do not address whether SB 14 unconstitutionally burdens the right to vote under the First and Fourteenth Amendments; therefore, we VACATE the district court’s judgment on that issue and DISMISS those claims. We AFFIRM the district court’s finding that SB 14 violates Section 2 of the Voting Rights Act through its discriminatory effects and REMAND for consideration of the appropriate remedy.

Finally, on remand, the district court should: (1) give further consideration to its discriminatory purpose findings as specified herein; and (2) if the district court does not find that SB 14 was imposed with a discriminatory purpose, consider what remedy it should grant due to SB 14’s discriminatory effect in violation of Section 2 of the Voting Rights Act, taking account of any impact of SB 983 and this opinion.

SB983 was a bill from this past session that eliminated a fee to request a copy of one’s birth certificate, which is a necessary requirement to get a state-issued election identification certificate (EIC), which is the voter ID card for people who don’t have drivers licenses. What all this means is that the district court was right to say that the voter ID law (referred to throughout in the opinion as SB14, which was the bill number when it passed in 2011) had a discriminatory effect, but used the wrong standard to judge if it had a discriminatory intent. The suit is sent back to the district court to re-evaluate that question under criteria laid out by the appeals court. If the question of discriminatory intent is still answered affirmatively by the district court, then the law would be thrown out, as some news headlines have mistakenly claimed for this. If not, the plaintiffs are still entitled to remedy due to the discriminatory effect finding. Possible remedies are suggested in the preceding section of the opinion:

Accordingly, if on remand the district court finds that SB 14 has only violated Section 2 through its discriminatory effects, it should refer to the policies underlying SB 14 in fashioning a remedy. Clearly, the Legislature wished to reduce the risk of in-person voter fraud by strengthening the forms of identification presented for voting. Simply reverting to the system in place before SB 14’s passage would not fully respect these policy choices—it would allow voters to cast ballots after presenting less secure forms of identification like utility bills, bank statements, or paychecks. See TEX. ELEC. CODE § 63.001(b) (West 2010). One possibility would be to reinstate voter registration cards as documents that qualify as acceptable identification under the Texas Election Code. The court could also decree that, upon execution of an affidavit that a person does not have an acceptable form of photo identification, that person must be allowed to vote with their voter registration card. Cf.TEX. ELEC. CODE §§ 63.008, 63.0101 (West 2010) (allowing a person to present alternate forms of identification upon submitting an affidavit certifying they did not have their voter registration card in their possession). Such a remedy would respect the Legislature’s choice to do away with more problematic forms of identification, while also eliminating SB 14’s invalid applications. See Ayotte, 546 U.S. at 331 (“So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional application.”). However, we recognize that the district court must assess this potential solution in light of other solutions posited by the parties, including other forms of photo identification. We urge the parties to work cooperatively with the district court to provide a prompt resolution of this matter to avoid election eve uncertainties and emergencies.

Actual election law expert Rick Hasen delves more deeply:

This is a narrow but important victory coming on the eve of the 50th anniversary of the passage of the Voting Rights Act.

As I noted when this panel was drawn, this is a relatively liberal panel in the 5th Circuit. [Note: the original version of this post referred to the panel as the “most liberal” and upon hearing from a lot of folks who follow the Fifth Circuit more than I do, this is incorrect.]

It is quite possible that Texas will try to take this case en banc to the full 5th Circuit, or perhaps to the Supreme Court. It is also possible that Texas would let this play out in another round at the district court and then appeal, but that seems less likely.

This also strikes me as an opinion written as narrowly as possible to still give a victory to the plaintiffs. (Perhaps that was the price of a unanimous opinion?) Winning on a Section 2 claim, even given the narrow remedial scope (more on that below) is still a significant victory for Voting Rights plaintiffs and the Department of Justice. We will see if it holds.

From there he gets into the details. The main loss from the plaintiffs’ perspective is that the vacate/remand on discriminatory intent means that there isn’t (yet) a basis to bail Texas back in to needing preclearance under Section 3 of the Voting Rights Act. That could still happen under the re-review, but the standard for such a ruling is tougher now.

Practically speaking, getting back to where your voter registration card suffices as your voter ID card, which is most of what we had before, seems like a pretty good outcome to me. I don’t know what the timeline is at this point, and I presume the earlier rulings that allowed the voter ID law to be enforced for the 2014 election is still in place. It’s still a good result. I’ve received numerous statements and press releases on this, which I’ve included beneath the fold. In the meantime, go read the ruling yourself. There are parts the non-lawyers can and will skim over, but for the most part it’s pretty comprehensible. Read it, or just read Prof. Hasen’s analysis, and see what you think. Daily Kos, ThinkProgress, the Brennan Center, the Press, Texas Leftist, Paradise in Hell, the Texas Election Law Blog, and Newsdesk have more.

Today, Senator Rodney Ellis (D-Houston) released the following statement in response to today’s ruling by the 5th Circuit Court of Appeals on Texas’ voter ID law:

“I’m pleased that the 5th Circuit agreed with the U.S. District Court’s findings that Texas’ voter ID law will have a discriminatory effect, preventing otherwise eligible voters from having their voice heard. Tomorrow is the 50th anniversary of the Voting Rights Act, and today’s unanimous ruling by the 5th Circuit proves the law is still an essential part of protecting Americans’ access to the ballot box. Near last in the country in voter turnout, Texas should be working to get more folks to the polls – not to turn away legal, legitimate voters.”

“I call on Texas to the right thing for once and not appeal the 5th Circuit’s decision.”

Senator Sylvia Garcia on Fifth Circuit’s Voter ID Opinion

NEW ORLEANS, LOUISIANA – Today, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s finding that Senate Bill 14 of the 82nd Regular Session, the “Voter ID” legislation, violates the Voting Rights Act through its discriminatory effects. The Court also remanded the case back to the district court for reconsideration of the plaintiffs’ discriminatory purpose claims and for a decision on the remedy to the Section 2 violation.

“Today’s ruling is a huge victory for all Texans and their fundamental right to vote. While the Fifth Circuit’s opinion focuses on Voter ID’s discriminatory effects on minorities, it is important to note that Texans from all walks of life have been disenfranchised by Voter ID’s burdensome and confusing requirements. Even one citizen being denied their rights is too many.”
“No citizen should be prevented from participating in our democratic process, especially on the basis of race. I hope that the courts will eventually strike down Voter ID completely, and I will keep fighting in the Legislature for laws that treat all Texans equally.”

Today, a three-judge panel of the U.S. Fifth Circuit Court of Appeals upheld a previous ruling by U.S. District Judge Nelva Gonzalez Ramos finding Texas’s photo/voter identification law, Senate Bill 14, violates Section 2 of the Voting Rights Act of 1965.

Last October, after hearing arguments over a nine-day trial in Corpus Christi, Judge Ramos of the Southern District of Texas blocked the photo ID law on the grounds that it creates an unconstitutional burden on the right to vote. The District Court noted that SB 14 “constitutes an unconstitutional poll tax” and was “imposed with an unconstitutional discriminatory purpose” with a discriminatory effect on African American and Hispanic voters in Texas.

Today’s ruling by the Fifth Circuit is a major victory for the Mexican American Legislative Caucus, for voting rights advocates across the country, and most importantly, for Texas voters and the fight to secure free and fair elections in our state.

Today, State Representative Trey Martinez Fischer, Chairman of the Mexican American Legislative Caucus, issued the following statement:

“There is no more fundamental American right than the right to vote. Time and time again, the courts have found Texas’s voter ID law to have a discriminatory effect against Texas Latino and African American voters. I applaud the Fifth Circuit Court for identifying that the state of Texas enacted election reforms that are nothing more than voter suppression tactics.

“Senate Bill 14 has nothing to do with ensuring integrity in our elections. It is merely a ploy to silence the voices of those who need their government’s ear the most – Latinos, African Americans, the elderly, and the poor.”

Rep. Ana Hernandez’s Response to the 5th Circuit Court of Appeals Decision on Texas’s Voter ID Law

Today, August 5th, the U.S. 5th Circuit Court of Appeals struck down Texas’s discriminatory voter ID law.

“It is all-too appropriate that, on the eve of the 50th anniversary of the signing of the Voting Rights Act, this law would be struck down,” Hernandez said. “Any measure that purposefully disenfranchises so many elderly and minority voters has no place in our society.”

“By defending this law, the Governor and Attorney General chose to be on the wrong side of history. Today’s ruling only confirmed that.”

State Rep. Carol Alvarado Statement about 5th Circuit Court’s Decision on Texas’ Voter ID Law

AUSTIN// Today the 5th Circuit Court of Appeals ruled that Texas’ Voter ID law violates the Voting Rights Act. State Representative Carol Alvarado issued the following statement:

“This is a true victory for all Texans. Texas’ Voter ID law was discriminatory pure and simple and was nothing more than a ploy to deny certain Texans the ability to exercise their constitutional right to vote.

I applaud the court’s decision as voting is one of the most fundamental rights citizens have in a democracy. To deny a person this right goes against the foundation that Texas was built on. Texas should once and for all reject this law and support policies that increase voter turnout and improve civic engagement.”

The following is a statement by Crystal Zermeno, director of special projects for the Texas Organizing Project, in reaction to the Fifth Circuit Court of Appeal’s decision to strike down the Texas voting ID law:

“We are elated that on the eve of the Voting Rights Act 50th anniversary, the country’s most conservative appeals court struck down Texas’ discriminatory voter ID law.

“We’ve always maintained that the law was a solution for a problem that didn’t exist. Voter fraud is about as true as Gov. Greg Abbott’s fear that Jade Helm 15 is a covert plan by the federal government to take over our state.

“What the law did do is strip hundreds of thousands of voters of color of their right to vote, just as the authors of the law intended. In Texas, we have too many barriers to the ballot box, which is why we have among the lowest voting rates in the country.

“Now that the law has been struck down, we look forward to continue turning out voters of color so that their interests are fairly represented at every level of government.”

The Fifth Circuit Court of Appeals today issued a ruling in Veasey v. Abbott that found that the Texas photo ID requirements to vote in Texas are discriminatory and in violation of Section 2 of the Voting Rights Act. State Sen. José Rodríguez issued the following statement on the ruling:

I support the Fifth Circuit Court of Appeals finding that the Texas photo ID requirements to vote are in violation of the Voting Rights Act. This is now the third court to find this law, passed in 2011, discriminatory and in violation of the Voting Rights Act. The appellate court agreed with the lower court’s finding of a stark racial disparity between those who possess or have access to ID, and those who do not. Attorney General Ken Paxton and Governor Greg Abbott should not continue to spend taxpayer money to defend a law that has continually been found to hurt minority voting rights. It’s incumbent on them to work with the plaintiffs in this case, including the Mexican American Legislative Caucus, on a remedy that will not disenfranchise eligible voters. The Court even provided some suggestions such as allowing the voter registration card as an acceptable form of ID. I urge the Attorney General and Governor to fulfill their legal duties and stop the implementation of this discriminatory law immediately.

Today’s decision is not the end of this struggle. The right to vote must be constantly defended. I look forward to future elections where more Texans, regardless of race, age, poverty level or education level, are able to participate more freely in the vote.

August 6th marks the 50th anniversary of the Voting Rights Act which was signed into law by President Lyndon B. Johnson. Most notably, the Act has accomplished greater access to the ballot box by eliminating obstacles used to keep racial and ethnic minorities from registering to vote.

On the eve of this historic anniversary, today, the U.S. Fifth Circuit Court of Appeals has ruled that Texas’ Voter ID law has a “discriminatory effect” that violates Section Two of the Voting Rights Act. This ruling strikes down one of the most onerous and controversial voting laws in the nation.

Representative Gene Wu lends his support to plaintiffs in the Voter ID lawsuit: “Our democracy owes much to the Voting Rights Act for providing greater access to the ballot box. Today’s ruling by the Fifth Circuit affirms the continued need for strong protections of our right to vote.” Wu adds, “We should protect our voting process, but that effort should be weighed carefully against measures that disenfranchise voters because they are poor or live in rural areas.”

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