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Texas voter ID challenge headed to district court, rather than Supreme Court, for now?

A challenge to a Texas voter identification law that some have described as the strictest in the nation now seems less likely to be headed immediately to the U.S. Supreme Court.  In a 203-page opinion that three dissenting judges characterized as “gravely fractured,” a federal appeals court today struck down one central provision of the law and sent the case back to a federal trial court for more proceedings.  The U.S. Court of Appeals for the Fifth Circuit instructed the lower court to fashion a remedy to address the problems faced by minority voters who have trouble obtaining the identification that they would otherwise need to vote in the November 2016 election.  But today’s decision was not an unqualified victory for the challengers, as the appeals court also reversed the lower court’s finding that the law was invalid because it was intended to discriminate against minority voters.  That question will now go back to the lower court for it to take another look.

The law at the center of the case, known as SB 14, was passed in May 2011.  It requires Texans who want to vote to show one of several forms of identification, ranging from a state driver’s license or U.S. passport to a military photo ID or a permit to carry a concealed weapon.  Defending the law, Texas asserts that the new law is “a constitutional requirement imposed to prevent in-person voter fraud and increase voter confidence and turnout.”

A group of voters and civil rights groups went to court to block the law from going into effect, arguing that it violated both the Constitution and the federal Voting Rights Act.  Earlier this year, the Supreme Court had declined to step in and stop Texas from enforcing the law, but it gave the full Fifth Circuit until July 20 – today – to act on the challenge.

Today a divided Fifth Circuit upheld the district court’s conclusion that the law “imposed excessive and disparate burdens on minority voters” who don’t have a form of identification that will meet the law’s requirements.  And that, the court agreed, violates Section 2 of the Voting Rights Act, which bars any voting requirements that result in “a denial or abridgement of the right of any citizen” “to vote on account of race or color.”  Some of the plaintiffs in the case, for example, “faced an almost impossible bureaucratic morass when they tried to get the underlying documentation” that they needed to vote, and were then turned away at the polls.

The court acknowledged that Texas has an interest in preventing voter fraud, but it emphasized that “the articulation of a legitimate interest is not a magic incantation a state can utter to avoid a finding” that a law disproportionately affects minorities.  This is particularly true, the court added, when (as here) there is a disconnect between the state’s professed goals and the actual substance of the law; although it was supposedly modeled after other states’ voter identification laws, the court noted, Texas lawmakers didn’t include provisions found in those laws that allowed voters to use other forms of identification.

The court sent the separate question whether lawmakers had intended to discriminate against minority voters back to the district court, characterizing some of the evidence on which the district court had relied to conclude that lawmakers had a discriminatory intent as “infirm.”  For example, it noted, the district court had “relied too heavily” on historical evidence of state-sponsored discrimination “dating back hundreds of years” — which has “little probative value” in assessing the legislature’s motives today.  But despite the shortcomings in the district court’s reasoning, the court of appeals concluded that “the record also contained evidence that could support a finding of discriminatory intent.”  And so the court sent the question back to the district court for it to reweigh the evidence.

The district court had blocked the entire voter ID law from going into effect.  But that, the court concluded, went too far in light of today’s more limited ruling.  With lawmakers not scheduled to return to the state house until January 2017, and time running out before the November 2016 election, the Fifth Circuit ordered the district court to come up with an interim solution to remedy the problem of the law’s discriminatory effect on minority voters.  The “vast majority” of Texans who already have identification that will meet the law’s requirements will have to show that identification if they want to vote, the Court made clear.  But the district court will, as soon as possible, need to come up with an alternative for the voters who can’t obtain acceptable identification – for example, allowing them to use voter registration cards.   And the district court’s reconsideration of the question of the legislature’s intent, the court concluded, can wait until after the election.

Today’s ruling drew scorn from several dissenting judges on the Fifth Circuit.  One dissenting opinion suggested that the court’s decision to send the question of the legislature’s potentially discriminatory intent back to the district court “fans the flames of perniciously irresponsible racial name-calling,” and it compares the majority to “Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the ‘truth.’”  Normally, this kind of eye-catching dissent can (and may have been intended to) increase the likelihood that the Supreme Court will agree to step in.  But today’s ruling has the feel of an effective compromise that the Justices will not feel the need to disturb by intervening immediately before the November election.  With the Court operating with only eight Justices since the death of Justice Antonin Scalia, and no prospect that the vacancy will be filled any time soon, even a fiery dissent may not be enough to garner the five votes that Texas would ultimately need to reverse today’s ruling limiting Texas’s voter ID law.

Recommended Citation: Amy Howe, Texas voter ID challenge headed to district court, rather than Supreme Court, for now?, SCOTUSblog (Jul. 20, 2016, 6:22 PM), https://www.scotusblog.com/2016/07/texas-voter-id-challenge-headed-to-district-court-rather-than-supreme-court-for-now/