by Royce West
Last week’s ruling by the U.S. Fifth Circuit Court of Appeals marks a victory for many like myself who have said since 2011, that the Voter ID law passed by the Texas Legislature that year was discriminatory. In the struggle to ensure voting rights for poor, minority, elderly, young and next generation Texas voters, we’ll take any win that the courts hand down. However, it’s not the first court to say that the strict photo-ID requirements discriminate against too many who are without the required documents or struggle to obtain them. Let’s hope it won’t be the last.
Plaintiffs and other Texas Democrats applauded the decision reached by a three-judge, 5th Circuit panel. But closer examination tells us two things. The ruling could have gone further and there remain more arguments to be made to rid state statutes of barriers to voting.
To recap, the court’s decision comes in response to the state’s appeal of a broad and highly critical ruling handed down in October 2014, by Corpus Christi Federal District Court Judge Nelva Ramos, which said Texas’ restrictive Voter ID law violated Section 2 of the 1965 Voting Rights Act (VRA). Judge Ramos found that Texas’ statute was 1) discriminatory in purpose, 2) discriminatory in its effect, and 3) constituted a poll tax.
Texas Attorney General, now Governor Greg Abbott, immediately sought an injunction from the 5th Circuit and the U.S. Supreme Court to prevent Judge Ramos’ ruling from becoming effective before the November 2014 Midterm Elections. It wasn’t the first time Abbott proved quick on the draw. In June 2013, just hours after the Supreme Court struck down Section 5 of the VRA that required Texas to pre-clear any changes to voting procedures; Abbott was spot-on with implementing SB14, which had awaited federal approval since its passage. In August 2012, a Washington D.C. federal court backed the Department of Justice’s position, under former Attorney General Eric Holder, that SB14 was discriminatory and subject to Section 5 review.
The 5th Circuit panel rejected Ramos’s ruling that SB14’s provisions (which permits only seven forms of photo ID to be used by voters) amounted to a de facto poll tax. Despite undisputed testimony by plaintiffs regarding the number of minority Texans who do not have the approved forms of photo ID and the difficulties they may encounter to obtain such, the panel determined that the indirect costs of acquiring an approved photo ID do not equal to a poll tax.
The appellate court also ruled that more evidence was needed to prove Ramos’ assertion that Texas’ Voter ID law was passed with discriminatory intent. The court said that Texas’ past history of voter discrimination and opposing testimony about the impact SB14 would have on minorities was not enough. Nowhere in official records, the court said, could it be found that there was deliberate intent by Republicans to deny minority voters access to the polls. Their carefully crafted message has – since the first such bills surfaced in 2005 – and remains to this day, that the law’s goal is to protect against voter fraud. This is despite the fact that from 2002-2011, only two convictions for the specific, in-person voter fraud that SB14 was said to be designed for have been handed down.
In sending the case back to district court, Judge Ramos was instructed to work with the parties on a fix for the 5th Circuit’s finding that in totality, the Voter ID law does “in effect” discriminate. It has been suggested that one of the fixes could be adding more approved forms of ID to the current list; for example, a student photo ID. Such has been approved in other states. Texas is likely to appeal the panel’s decision, either to the full 5th Circuit Court or directly to the Supreme Court. Timing will be critical. It may not be at all problematic for the Legislature to take up a remedy during the 2017 Session. Of course that would come after the 2016 Presidential Election.