Sure, Texas's voter ID law violates the Voting Rights Act. Yet, despite repeated warnings from opponents that Senate Bill 14, passed by the Texas Legislature in 2011, would disenfranchise poor and minority voters (something some proponents of the law even publicly admitted would probably occur), the GOP majority that passed the law didn't necessarily want for that to happen.
That's the gist of Wednesday's ruling by the U.S. Fifth Circuit Court of Appeals, which upholds portions of a lower court ruling that called Texas's law an unconstitutional burden on the right to vote that carries the “impermissible discriminatory effect against Hispanics and African Americans.”
Prior to SB 14's passage, voters in Texas simply needed proof of voter registration when heading to the polls – if voters forgot their card proving registration, they could still cast a ballot by signing an affidavit and presenting a photo ID, utility bill, bank statement, or virtually any government mail showing their name and address.
The GOP majority at the Texas Legislature, however, claimed voter fraud is such a rampant problem in the state – despite the fact that since 2004 only four people have been accused of such ballot fraud – that we needed a voter ID law that U.S. Supreme Court Justice Ruth Bader Ginsberg ultimately called “the strictest regime in the country.”
If it feels like we've been down this road before, it's because we have – sort of.
In 2012, a federal court ruled that Texas's voter ID law violated Section 5 of the Voting Rights Act and stopped it from going into effect. However, in 2013, the U.S. Supreme Court struck down a critical component of the landmark civil rights law that had required states, like Texas, with a history of discrimination to get federal approval before making any major changes to state voting or election laws. Congressman Marc Veasey (D-Fort Worth) ultimately filed a lawsuit challenging the law (again) when then-Gov. Rick Perry declared that Texas's voter ID law could go into effect because of the SCOTUS ruling that gutted the VRA.
Last fall a federal judge in Corpus Christi heard the case. After a bench trial, Judge Nelva Gonzales Ramos issued a 147-page opinion that quoted Abraham Lincoln and, in no uncertain terms, condemned the law as a discriminatory, unconstitutional modern day poll tax. As Ramos wrote:
"The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African Americans and was imposed with an unconstitutional discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll tax."
Yet despite Ramos's ruling, the Fifth Circuit let the law go into effect for the 2014 midterm elections. The U.S. Supreme Court, in a 6-3 ruling, declined to step in. Justice Ginsberg, in a stinging 6-page dissent, said the court's inaction “risks denying the right to vote to hundreds of thousands of eligible voters.”
On Wednesday, however, a three-judge panel with the Fifth Circuit unanimously ruled that the law does, indeed, violate the Voting Rights Act but, in a departure from the lower court decision, said there was no evidence that discrimination was the driving force behind the voter ID law.
At the outset, Judge Catharina Haynes, who wrote the opinion, danced around the issue this way:
“The State’s stated purpose in passing SB 14 centered on protection of the sanctity of voting, avoiding voter fraud, and promoting public confidence in the voting process. No one questions the legitimacy of these concerns as motives; the disagreement centers on whether there were impermissible motives as well. We recognize that evaluating motive, particularly the motive of dozens of people, is a difficult enterprise. 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.”
In the lower court ruling, Judge Ramos leaned heavily on Texas's alarming track record of enacting voting laws that discriminate against minorities – all white primaries until 1944, poll taxes until 1966, literacy tests and secret ballots until 1970.
Ramos also pointed to more recent examples of discrimination, particularly in Waller County, which is now infamously tied to the death of Sandra Bland. Up until the practice was banned by the courts in 1979, Waller County officials prohibited citizens from voting unless they or their families owned property in the county. In 1992, the local district attorney even prosecuted a student from Prairie View A&M, a historically black school, for “illegally voting” – the charges were dropped after the U.S. Department of Justice stepped in.
And it doesn't end there. In 2003, when a Prairie View student ran for commissioners court, the local DA and county attorney threatened to prosecute any student caught voting who didn't own property, citing the old domicile law that had been tossed by the courts decades earlier. Then in 2007 and 2008, during then-Sen. Barack Obama's campaign for president, Waller County officials threw out a bunch of voter registration cards as “incomplete,” and then made it even harder for volunteer voter registration drive organizers to let citizens know their registrations had been tossed. On top of that, officials capped the number of voters volunteers could even register.
"This history describes not only a penchant for discrimination in Texas with respect to voting, but it exhibits a recalcitrance that has persisted over generations despite the repeated intervention of the federal government and its courts on behalf of minority citizens," Ramos concluded.
Yet the Fifth Circuit on Wednesday ruled that Ramos wrongly relied on “long-ago history” in ruling that the law was, in effect, passed with the intent to discriminate. As for Waller County's more recent history, Judge Haynes, writing for the appeals court, said, “In a state with 254 counties, we do not find the reprehensible actions of county officials in one county (Waller County) to make voting more difficult for minorities to be probative of the intent of legislators in the Texas Legislature, which consists of representatives and senators from across a geographically vast, highly populous, and very diverse state.”
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In the lower court ruling, Judge Ramos even cited public statements from a Republican state lawmaker and lawyer within the lieutenant governor's office acknowledging that SB 14 would disproportionately effect minorities and the poor. As far as the Fifth Circuit is concerned, however, “these bare acknowledgments by two people of the law's potential impact are insufficient to demonstrate that the entire legislature intended this disparate effect.” And with that, the Fifth Circuit sent that particular issue — whether lawmakers meant to suppress the minority vote when they passed SB 14 — back to the lower court for more hearings.
While the Fifth Circuit ruled that the law is, in its present form, unconstitutional, what exactly that means for the future of voter ID in Texas is unclear.
The state might still ask the full Fifth Circuit, the most conservative appeals court in the country, to review the case. And even after that, it will likely be appealed to the Supreme Court no matter who should win in the Fifth Circuit. Yep, that's right, the odds are good the Supreme Court, which has already gutted the Voting Rights Act once, will be the ultimate decider on whether SB 14 was designed to disenfranchise the poor and minorities. Wonder how that will turn out?
You can read the whole Fifth Circuit ruling here: