So now what for voter ID?

It’s hard to say how much prospects have changed now that Donald Trump gets to appoint the ninth Supreme Court justice, but it’s fair to say that thing haven’t improved for the plaintiffs.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Five years ago, Texas passed one of the strictest Voter ID laws in the country. The legal fight began immediately and has continued through this day, with critics of the law getting some assistance from the Obama administration’s Justice Department.

Now, with Republican Donald Trump set to ascend to the Oval Office, the law’s future is more uncertain than ever. Among the questions up in the air: Whom will Trump nominate to the U.S. Supreme Court seat left vacant by Antonin Scalia’s death, and how will a Trump-led Justice Department operate compared to the current administration?

“We’re not going to stand idle when a law is discriminatory,” said Leah Aden, senior counsel of the NAACP Legal Defense Fund. “The strategy may be different depending on who is in office, but we’ll fight it regardless of who’s in power.”


Rick Hasen, an expert in voting law trends and a professor of political science and law at the University of California, Irvine, said Texas has a “very good chance” at reversing the 5th Circuit’s ruling against them if Trump appoints a conservative justice to Scalia’s seat and the court decides to hear Texas’ appeal. It would depend, he said, on how the court reads Section 2 of the Voting Rights Act, which forbids changes that discriminate against minorities.

“If the court reads Section 2 very narrowly, as I expect a conservative court majority would, that would lead to a reversal of the 5th Circuit’s decision,” Hasen said. “The Supreme Court could say that the 5th Circuit applied the wrong standards to determine whether or not that was discrimination.”

See here for the last update. I’m not going to argue with Prof. Hasen, but I will say that the full Fifth Circuit, which also has a pretty conservative majority, ruled for the plaintiffs, so all hope is not lost. Antonin Scalia was always a vote to uphold voter ID, so the net effect of a Trump appointment is basically neutral. As with many things, it will likely come down to Anthony Kennedy. Having the Justice Department switch sides or at least drop out of the proceedings would be appalling but probably not a difference-maker. It’s not an optimal position to be in, but all hope is not lost.

The much greater challenge now will be the litigation over whether the law had discriminatory intent. That case is in Judge Nelva Gonzales Ramos’ court, with briefs by both sides due Friday. The story says she will issue a ruling by January 24. No matter how she rules, the road after that is considerably rocky, but let’s not get ahead of ourselves.

The other thing to watch for is the Legislature. Greg Abbott and Dan Patrick have been vowing to revisit the voter ID law in the next session, and with the current national landscape I doubt they will feel any restraints when they do. Whatever they pass will wind up in court again, and after that, who knows? I know we already know this, but it’s going to be an ugly four years.

UPDATE: Those briefs have been filed, by the Justice Department and the Attorney General.

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10 Responses to So now what for voter ID?

  1. Bill Daniels says:

    Kuff, how many people voted in Texas by filling out a form explaining why they had no ID? Surely this information is known by now.

  2. Bill Daniels says:

    After a little digging of my own, I find this, from the NYT:

    There was a relatively limited number of cases during early voting in which voters with improper IDs were required to submit provisional ballots, which will be counted only if the people come back with a valid ID within six days. Officials said that statewide, 2,354 provisional ballots were cast this election, which is about 0.2 percent of voters. In the last off-year election, in 2011, there were 738, or 0.1 percent of the ballots cast that year.

    Officials also said that there was little traffic at the offices set up by the state to provide free voter ID documents for those without another approved form of identification. By Election Day, only 121 voter identification documents had been issued statewide.

    Hardly seems like the mass disenfranchisement we were promised would take place.

  3. ES says:

    @Bill Daniels

    Do you have any numbers from THIS election as opposed to three years ago?

    Do you have the number of people who didn’t vote during THIS ELECTION because (a) the state’s illegal ID requirement discouraged or overburdened them, (b) they didn’t know about the alternatives, (c) those alternatives were too burdensome for them, and/or (d) incompetent poll workers misinformed them about the requirements to vote (I saw this happening at my own early voting location at the Champion Forest Baptist Church)?

    Using your 2013 number–2,354 provisional ballots–do you have proof of at least 2,354 individual instances of people trying to unlawfully cast ballots this election? Otherwise the ID law did more harm than good.

  4. Bill Daniels says:


    I was hoping Kuff would have the numbers from this go-round. I’m not, nor do I claim to be, the research wonk that he is.

    Whatever this year’s number turns out to be, I doubt it will be the apocalyptic, sky-is-falling number either side expects. In other words, I don’t think systemic voter fraud is as big of a problem as the (R)’s claim, and I don’t think that any significant number of eligible voters do not have a Texas DL or Texas ID, as the (D)’s claim. If there is significant voter fraud, I think it would be most likely to happen with mail in absentee ballots, which the voter ID law doesn’t address.

    I could be wrong, though, and will accept Kuff’s research on the number of affidavit voters as fact.

  5. Bill Daniels says:


    I would just about bet that the problems you saw in Champions Forest had to do with married or divorced women, whose names don’t match the name they signed up with when they registered to vote. Are you saying that people in Champions Forest showed up with a utility bill and told the election clerks that they had an insurmountable challenge getting a DL, ID, or voter certificate?

  6. Bill Daniels says:


    My own anecdotal experience voting in the general this year was this: the poll worker told me they had over 10,000 voters at that polling station and only ONE person created drama over showing ID….the poll worker said the potential voter stated he had ID, but was offended by being asked for it, refused to show it and walked out.

  7. voter_worker says:

    Under the court order, anyone signing the declaration of reasonable impediment and presenting alternative documentation were to be voted on a regular, not provisional, ballot. I would think that the Texas SOS would be the source of how many voters did that.

  8. Neither Here Nor There says:

    Any money spent on fighting with lawsuits would be better spent helping people get IDs. Voter IDs is a minor thing that can be easily be taken care of. More important is that the Democrats get control of the county clerk’s position, that way they can make sure that minority precincts do not have long lines or that they are adequately equipped and staffed.

  9. brad moore says:

    Abbott and Patrick. Lying liars.

    Voter ID fraud is virtually non-existent (31 confirmed in-person voter ID frauds in 1 BILLION votes), not “rampant” as described by Abbott, and does not justify the real and true disenfranchisement of hundreds of thousands of voters in our state.

    Read about Voting Rights and Elections at

  10. Pingback: Pasadena voting rights trial update – Off the Kuff

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