Fifth Circuit affirms voter ID ruling

Made it by the deadline.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas’ voter identification law violates the U.S. law prohibiting racial discrimination in elections, a federal appeals court ruled Wednesday.

The U.S. 5th Circuit Court of Appeals affirmed previous rulings that the 2011 voter ID law — which stipulates the types of photo identification election officials can and cannot accept at the polls — does not comply with the Voting Rights Act.

The full court’s ruling delivered the strongest blow yet to what is widely viewed as the nation’s strictest voter ID law. Under the law, most citizens (some, like people with disabilities, can be exempt) must show one of a handful of types of identification before their ballots can be counted: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card, or a U.S citizenship certificate with a photo.


The case centered on whether Texas discriminated against Hispanic and African-American voters when it passed the legislation: Senate Bill 14.

Paxton, Gov. Greg Abbott and other proponents argued that the law was needed to bolster security at the ballot box by preventing voter fraud, but opponents cite the paucity of proven in-person voter fraud in the state and argue the intent was to undercut the electoral strength of the state’s growing minority population — people less likely to have photo identification or the means to obtain an election certificate.

Experts have testified that more than 600,000 Texans lack such identification, though not all of them have necessarily tried to vote. Those citizens can obtain “election identification certificates” free of charge, but only if they are able to produce a copy of their birth certificate.

Texas argued that opponents of the law had “failed to identify a single individual who faces a substantial obstacle to voting because of SB 14.” In Wednesday’s ruling, the majority rejected that argument.

“For one thing, the district court found that multiple Plaintiffs were turned away when they attempted to vote, and some of those Plaintiffs were not offered provisional ballots to attempt to resolve the issue,” the ruling stated.

The majority also affirmed the lower court’s finding that Texas’ “lackluster educational efforts resulted in additional burdens on Texas voters.”

Seven of the court’s 15 judges backed the decision in full. Two other judges backed most of the decision. Dissenting judges wrote that the “en banc court is gravely fractured and without a consensus. There is no majority opinion, but only a plurality opinion that draws six separate dissenting opinions and a special concurrence.”

More specific to the Texas law, some of the dissenting judges wrote that “requiring a voter to verify her identity with a photo ID at the polling place is a reasonable requirement widely supported by Texans of all races and members of the public belonging to both political parties.”

Voting rights advocates were quick to praise the appeals court’s overall decision Wednesday.

“We have repeatedly proven – using hard facts – that the Texas voter ID law discriminates against minority voters,” Gerry Hebert, executive director of the Campaign Legal Center and an attorney for the plaintiffs, said in a statement. “The 5th Circuit’s full panel of judges now agrees, joining every other federal court that has reviewed this law. We are extremely pleased with this outcome.”

See here and here for some background, and here for a copy of the ruling. I’ve seen several headlines declaring that the Fifth Circuit “struck down” the voter ID law. That’s not the case at all – in fact, they said it should be enforced for the people who have the mandated ID. Rick Hasen explains what they did order:

The bottom line is that the majority of the 5th Circuit has done what the panel opinion had originally held: there is a remand on the question whether Texas acted with a discriminatory purpose, but there is enough evidence of a discriminatory effect so as to render the Texas id law a Voting Rights Act violation.

BUT, and this is a big but, the remedy is NOT going to be to strike the Texas voter id law as a whole, but instead to fashion some kind of relief that give people who have a reasonable impediment to getting an id the chance to get one. This might be like the affidavit requirement just approved yesterday in the Wisconsin case, or something else (like an indigency exception affidavit). Further, given the timing of the election, the trial court has to craft some kind of interim relief and then can figure out a more comprehensive solution after the next election.

BUT, BUT there is a very strong dissent from the 5th Circuit’s most conservative members, and that might give Texas a reason to go to the Supreme Court to try to get this emergency interim relief stayed.

BUT, BUT BUT: the Supreme Court has now lost Justice Scalia, and at best Texas could hope for only 4 votes to reverse what the 5th Circuit has done. Indeed, I’m not sure that even Justice Kennedy/Chief Justice Roberts would be on board. If the court ties, the 5th circuit en banc decision stands. (There’s also the possibility of an argument that the interim relief ordered for this election comes too late under the Purcell Principle, but given that the 5th Circuit acted just within the soft July 20th deadline the Supreme Court set, I think the plaintfiffs will be safe in this regard).

FINALLY, these kinds of softening devices are not all they are cracked up to be, and there’s lots of evidence they are not used by lots of voters who need it. (I discuss this disjunction between theory and practice in Softening Voter ID Laws Through Litigation: Is it Enough?, Wisconsin Law Review Forward (forthcoming 2016) (draft available)). One of the 5th Circuit judges, Judge Higgonson, concurring, has a footnote reading: “I also disagree with the opposite criticism that this interbranch engagement ameliorates too little, though that argument is contributory. See Richard L. Hasen, Softening Voter ID Laws Through Litigation: Is it Enough?, WISC. L. REV. FORWARD (forthcoming 2016), (with apologies to Professor Hasen for my citation of his draft version).”

This is a win for the plaintiffs, no doubt, but not nearly as good as getting the law thrown out for everyone.

Ian Millhiser at Think Progress generally concurs with Hasen:

So the court, after considering a complicated array of factors presented by such cases, held that the law violates the Voting Rights Act. That’s the good news for voting rights. The bad news is two-fold.

First, a majority of the Fifth Circuit determined that “there are infirmities in the district court’s” conclusion that Texas acted with discriminatory intent, although it also returned the case to the lower court to reconsider whether such intent existed. That matters for several reasons, the most potentially significant of which is that Section 3 of the Voting Rights Act permits states that act with racially discriminatory intent to be subjected to continuing federal supervision of their voting laws. If the courts ultimately conclude that Texas acted with discriminatory intent, they could also decide to place Texas under the same kind of supervision that the Supreme Court eliminated in its 2013 decision striking down part of the Voting Rights Act.

Additionally, while the Fifth Circuit found Texas’ voter ID law wanting, it is unclear what the remedy will be for this violation of the law. “We acknowledge that the record establishes that the vast majority of eligible voters possess SB 14 ID, and we do not disturb SB 14’s effect on those voters” the court writes,” adding that “those who have SB 14 ID must show it to vote.” It instructs the lower court that the eventual “remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification.” (One possible solution is that the remedy could match the same one handed down by a Wisconsin federal judge in a similar case on Tuesday.)

So this is a victory for voting rights, but not a total one. Nevertheless, given the Fifth Circuit’s conservatism, it is a surprising decision. And no doubt a welcome one for voting rights supporters.

Here’s more on that Wisconsin decision. The district court may try to craft a solution, but as Andrea Greer notes, it’s not out of the question that Greg Abbott could call a special session to try to “fix” the law. Mostly, it’s a matter of timing. The law as it exists cannot be used – there must be a remedy for the people who don’t have ID. That needs to be in place probably in the next six to eight weeks, to ensure there’s enough time for local election admins to communicate to voters what they will need to be able to vote. Striking the whole thing down would have been better and less confusing, but this is what we’ve got. There’s also still a chance that the district court could find discriminatory intent again under the new standard the Fifth Circuit set, and I presume that one way or another, this will eventually go to SCOTUS. But for now, a decent if not resounding win. The Chron story is here, and Courthouse News, the Brennan Center, the Press, the Rivard Report, and PDiddie have more.

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2 Responses to Fifth Circuit affirms voter ID ruling

  1. Bill Daniels says:

    I guess the Mexican “consular matricula” card will be acceptable ID to vote in America now.

  2. Pingback: New affidavit procedure implemented for HD120 special election runoff – Off the Kuff

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