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Texas voter ID law can’t take effect

Treating Texas’s photo ID requirement for voters as “the most stringent in the country,” a three-judge U.S. District Court in Washington on Thursday barred the state from enforcing it.   If put into effect, the court found, the law would infringe on the voting rights of poor people in the state, who are predominantly racial or ethnic minorities, and that would violate the 1965 federal Voting Rights Act.

The decision set the stage for the same three judges to consider Texas’s claim that, if its law cannot stand under the Voting Rights Act, that Act is unconstitutional because it infringes too deeply on the power of states to control their own elections.   Perhaps without waiting for that review to unfold, the state’s attorney general, Greg Abbott, announced plans to appeal to the Supreme Court to challenge Thursday’s decision blocking the law.

Texas’s voter ID law — known as “SB 14” — was signed by Gov. Rick Perry in May of last year, but has never gone into effect because Texas is one of the states that, under Section 5 of the Voting Rights Act of 1965, must get official clearance in Washington before they can implement any change in state or local election laws.  That requirement was imposed upon states that had a history of racial discrimination in voting.   After the Obama Administration objected to the law, Texas asked the three-judge District Court to clear it.   After a trial in July, the District Court promised a ruling by Thursday — the last day for a decision in order to give Texas time to implement the requirement for the November election this year, if it were allowed to do so.

State officials have shown a keen interest in having the law in place for the November balloting, and one option for them to do so would be to ask for and obtain a temporary order by the Supreme Court allowing enforcement.  Although the District Court handling the case has not yet reached a decision on the constitutionality of the state’s photo ID requirement, the state presumably could raise the constitutional objection it now has to the law as part of a plea to the Justices for permission to put it into effect this fall.

When Texas filed its case in defense of the law in the District Court, it made two general points: first, that the requirement does not reduce the voting rights of minorities protected by the Voting Rights Act and thus should be cleared, and, second, that if the Act did not get clearance, then the Act itself is unconstitutional.   The District Court split the case into two parts: dealing first with the clearance question, and, later, with the constitutional challenge should clearance be denied.   After denying clearance Thursday, the District Court issued a separate order telling lawyers in the case to submit by no later than September 13 a joint proposal on a schedule for its review of the constitutionality question.

The D.C. Circuit Court, which is a higher-level federal court in the Washington area, has already upheld Section 5 of the 1965 law against a constitutional challenge.   Two petitions seeking review of that decision are already pending at the Supreme Court (dockets 12-81 and 12-96).   Ordinarily, a District Court is bound by a ruling on the same issue by the Circuit Court for its area, but it is not clear that this would be true in the situation of a special three-judge District Court like the one that ruled Thursday.  Congress has given those special courts the authority to decide challenges to federal voting rights laws, and the decisions of those courts can only be appealed directly to the Supreme Court, bypassing the usual route through the Circuit Court.

The author of the Thursday ruling against clearing the voter ID law — Circuit Judge David S. Tatel — also sat on the Circuit Court panel that upheld the constitutionality of Section 5, and he wrote the opinion for the two-judge majority.  That was the case from Shelby County, Alabama.  That case did not involve a clearance issue; Shelby County filed its challenge to Section 5 without asking for clearance of a voting procedure, but simply sought a ruling to strike down Section 5 because it did not have the option of avoiding the reach of the law.  (Shelby County’s petition in the Supreme Court is the one docketed as 12-96.)

Judge Tatel, in the voter ID case, was joined by two District judges, Rosemary M. Collyer and Robert L. Wilkins.   There was a single opinion for the three judges, concluding that the photo ID requirement would have the effect, if implemented, of reducing the chances of minority voters to cast votes in elections.   Section 5 of the 1965 law requires a state like Texas to prove that a change in an election law will not have the effect of diminishing minority voters’ rights, and was not enacted with the specific intent to discriminate against such voters.   The District Court concluded that Texas could not satisfy the “effect” test, so it did not rule on whether the requirement was imposed with the aim of discrimination.

The panel stressed that its ruling was confined specifically to the situation in Texas, especially the fact that those least able to obtain the required forms of photo IDs were among the poorest people in the state, along with the fact that, among the poor, the predominant number are either black or Hispanic.   The opinion rejected a claim by Texas that, because either the Supreme Court or a lower federal court had upheld photo ID laws for voters in Indiana and Georgia, Texas should be also be allowed to have such a law.   Neither Indiana nor Georgia has a sizable Hispanic population, compared to Texas, the panel noted.  Moreover, the decision said, the laws in those two states are not nearly as demanding as the Texas law.

In another limitation that the Tatel opinion emphasized, the court said it was not casting doubt on photo ID requirements for voters as a general proposition, and stressed that states are free to adopt such laws even if there is no problem of fraud caused by voters seeking to cast ballots when they are not entitled to do so.   States are entitled to pass such laws in order to improve the public’s confidence that elections will be conducted fairly, the decision said.

The three judges expressed deep skepticism about testimony offered in the case by competing experts for each side in the case, especially on whether photo ID laws actually cause reduced participation in voting and on whether the inability to obtain a photo ID to satisfy such a requirement is a widespread problem.  But the judges said there was clear evidence in the record that, at least in Texas, the law is so restrictive that many individuals among the “working poor” would not be able to obtain an acceptable ID, or could not afford to do so.   While poor people, as such, are not protected by the Voting Rights Act, the court noted, they are when their numbers are greatest among minorities, like blacks and Hispanics.

The decision flatly rejected two legal arguments that Texas had made to try to justify the legality of the voter ID law under the 1965 Act’s Section 5.   In one of those arguments, the state’s lawyers contended that Section 5 does not apply to a state law that merely makes it slightly inconvenient for voters to cast their ballots, since such a law does not directly take away the right to vote.   Just as potential voters might choose not to register to vote at all, Texas asserted, some may choose not to get a photo ID when that is required.   Rejecting that argument, the court found that it “misses the point of Section 5,” which is that a state like Texas must justify any change it makes in its law, no matter how small such a change, with proof that it would not limit the voting rights of minorities.  The Section 5 impact-on-voters analysis, the court declared, cannot be made to turn on a question of voter choice about obeying a law.

The state’s other argument in support of its law was that, because the Supreme Court has already upheld a photo ID law for the state of Indiana, that decision is binding for such laws in other states, too.   The court rejected that argument, saying that, while the Supreme Court ruling (in Crawford v. Marion County Election Board, in 2008) did bear upon the general question of state power to pass such laws, the situation was different between the two states and between their two specific laws.  The issue in the Indiana case was whether such a law was valid if applied to all voters in a state, while the issue in the Texas case is what impact such a law has on minority voters, the court said.  (The District Court also rejected an argument by the Justice Department, that the Crawford decision has no bearing at all on cases involving voter ID laws under Section 5.)

Beyond those two points, the District Court also rejected a claim by Texas that its voter ID law would not have a severe effect on reducing votes among minorities, and a claim that the effect cannot be analyzed according to the impact a law may have on someone because they are poor, since poverty is not a condition that Section 5 addressed and only racial impact can be analyzed.

On the actual effect, the court said that Texas’s law may require people to travel perhaps 150 to 200 miles and pay as much as $22 to get a substitute ID if they don’t have one of the specific kinds demanded by the state law.  Many counties, the court said, do not have offices where such a substitute ID can be obtained, or such offices have only limited open hours.   Texas, the court said, has never before imposed such burdens on individuals seeking the chance to vote.

Turning to the state argument that the effect on the poor is beyond the reach of Section 5, since that law only protects individuals of race or color, the District Court said Section 5 is not limited to state laws that only treat minorities differently because of their race or color.  Congress explicitly intended for the 1965 law to prohibit election devices based on something other than race, but that in reality work to discriminate against minorities.   The “effects” test under Section 5 is different from the intentional discriminatory purpose test of that law, the court stressed.



Recommended Citation: Lyle Denniston, Texas voter ID law can’t take effect, SCOTUSblog (Aug. 30, 2012, 4:39 PM),