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Wednesday’s ruling by a federal appeals court against Texas’s voter ID law looks likely to lower a massive barrier to voting that had threatened to disenfranchise large numbers of the state’s minority voters. The ruling also offers a stinging rebuke to state lawmakers and officials who enacted and defended the law. And its cogent dismantling of many of the key claims advanced by backers of strict ID laws — all the more remarkable coming from a conservative-leaning court — could have implications beyond the Lone Star State.
Still, exactly what happens next — and what it all means for voters this November — remains somewhat up in the air.
The 9-6 opinion from the 5th Circuit Court of Appeals didn’t give the plaintiffs everything they wanted. It did uphold a district court’s 2014 finding that the law had a discriminatory effect in violation of the Voting Rights Act, making it harder for Texas’s blacks and Hispanics to vote than it is for whites. But it told the district court to reconsider the question of whether Texas intended to racially discriminate, and it overturned the district court’s finding that the law was an unconstitutional poll tax. Most importantly, rather than striking down the law, the appeals court left it to the district court to fashion a remedy, saying it should be narrowly tailored to solving the problem, while respecting the intent of the legislature.
Voting rights advocates are taking heart from the fact that the 2014 district court ruling from Judge Nelva Gonzales Ramos, an Obama appointee, amounted to a sweeping and, in places, impassioned denunciation of the ID measure. So whatever remedy Gonzales Ramos comes up with is unlikely to go easy on the law.
“I fully expect the district court to come up with a remedy as quickly as possible, and one that effectively affords relief for the discriminatory effects of the law,” said Gerald Hebert, the executive director of the Campaign Legal Center, which helped bring the challenge.
Indeed, if she finds, again, that Texas acted with discriminatory intent, Gonzales Ramos could even order that the state be brought back under the “preclearance” system that was effectively ended by the Supreme Court’s 2013 decision in Shelby County v. Holder. That would require Texas to get all its election changes approved in advance by the federal government — a result that would significantly strengthen the Voting Rights Act as a whole.
Still, whatever approach Gonzales Ramos takes, problems on the ground are still likely to crop up this fall. The election law scholar Rick Hasen has questioned whether court-ordered “softening” of voter ID laws, whatever form that takes, does enough to protect access to voting. “Softening may do less to alleviate the actual burdens of voter identification laws than to make judges feel better about their Solomonic rulings,” Hasen wrote in a forthcoming paper. “In fact, softening devices still leave an uncertain number voters disenfranchised.”
The district court might decide that voters without ID must be allowed to sign an affidavit swearing to their identity before voting — an arrangement that has been used in other voter ID cases. But voting rights advocates say that’s far from ideal, since signing an affidavit can be intimidating to some people, and could cause confusion over whether their ballot counts. Another alternative in Texas would be to allow people to vote if they present their voter registration card, which is sent to every registered Texas voter. But after years of being told that their registration card isn’t enough, that still might keep some voters away.
That raises another issue: What's the best way to make voters aware of the new rules? The district court is likely to order Texas to undertake a public education campaign — a step Wednesday’s opinion all but ordered. But based on the state’s lackluster efforts to publicize the law’s requirements up to now, it’s hard to imagine that campaign being conducted aggressively. Gonzales Ramos found that more than 608,000 registered Texans, disproportionately black and Hispanic, lack the ID required under the law.
Adding to the uncertainty: Texas hasn’t yet said whether it will appeal Wednesday’s ruling to the U.S. Supreme Court — though it appears unlikely that the eight-member court, given its makeup since the death of Justice Antonin Scalia, would reverse the ruling. A spokeswoman for Texas Secretary of State Carlos Cascos didn’t respond to several inquiries from NBC News on Wednesday.
Immediate consequences aside, Wednesday’s opinion was noteworthy for painting a picture of Texas’s Republican lawmakers as, at best, indifferent to the struggles of the state's low-income and minority voters to get an ID. The ruling also offered firm rebuttals to many of the arguments made both by Texas in support of its law, known as SB 14, and by ID proponents more broadly. That it came from Judge Catharina Haynes, a staunch conservative — though one with a reputation for independence — writing for likely the most conservative federal appeals court in the nation, only bolstered its impact.
The appeals court affirmed Gonzales Ramos’s finding that the law’s drafters were aware that it would make it harder for minorities to vote, but they nonetheless rejected a slew of measures that would have softened its impact, largely refusing to explain why. The ruling also swiftly dispatched Texas’ claim that the plaintiffs hadn’t identified a single person who faces a substantial obstacle to voting thanks to the law, noting several people who the district court found were clearly disenfranchised by it. (News reports, including from MSNBC, have turned up many more.) And it slammed the state for devoting “little funding or attention to educating voters about the new voter ID requirements.”
Perhaps most forcefully, the opinion derisively rejected Texas’ claim that the law was needed to prevent voter fraud.
“Ballot integrity is undoubtedly a worthy goal,” Judge Haynes wrote. “But the evidence before the Legislature was that in-person voting, the only concern addressed by SB 14, yielded only two convictions for in-person voter impersonation fraud out of 20 million votes cast in the decade leading up to SB 14’s passage. The bill did nothing to combat mail-in ballot fraud, although record evidence shows that the potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.”
Haynes also noted that preventing non-citizens from voting was offered as another rationale for the bill “even though two forms of identification approved under SB 14 are available to noncitizens.”
“The provisions of SB 14,” Haynes wrote, “fail to correspond in any meaningful way to the legitimate interests the State claims to have been advancing through SB 14.”
Instead, the court suggested, the law had a different purpose. “The extraordinary measures accompanying the passage of SB 14 occurred in the wake of a ‘seismic demographic shift,’” Haynes wrote, “as minority populations rapidly increased in Texas, such that the district court found that the party currently in power is ‘facing a declining voter base and can gain partisan advantage’ through a strict voter ID law.”
The opinion also took on an argument used more broadly in support of ID laws: That they must not keep people from voting, since turnout rates have increased, compared to previous years, in elections where they’ve been used. As Haynes noted — and as voting rights advocates challenging voting restrictions have been at pains to point out from Texas to North Carolina to Wisconsin — turnout fluctuates for all sorts of reasons. “That does not mean the voters kept away were any less disenfranchised,” Haynes wrote.
Perhaps most far-reachingly, the opinion in several places starkly rejects Texas’ effort throughout the case essentially to narrow Section 2 of the Voting Rights Act so that it would bar only intentional and blatant acts of racial discrimination in voting. That’s a crusade that for decades has been pursued by numerous leading conservative legal minds, as they’ve looked to further weaken the landmark civil rights law.
Instead, the court affirmed, the law must recognize that racial discrimination usually comes in subtler forms. “To require direct evidence of intent would essentially give legislatures free reign [sic] to racially discriminate so long as they do not overtly state discrimination as their purpose and so long as they proffer a seemingly neutral reason for their actions,” Haynes wrote, “This approach would ignore the reality that neutral reasons can and do mask racial intent, a fact we have recognized in other contexts that allow for circumstantial evidence.”
Texas’s interpretation of the law, Haynes added “effectively nullifies the protections of the Voting Rights Act by giving states a free pass to enact needlessly burdensome laws with impermissible racially discriminatory impacts. The Voting Rights Act was enacted to prevent just such invidious, subtle forms of discrimination.”
Reading Section 2 in the way Texas recommends, Haynes wrote, would “cripple” the Voting Rights Act, and “unmoor” it “from its history and decades of well-established interpretations about its protections.”
A similarly clear endorsement of the Voting Rights Act's reach by the U.S. Supreme Court would go a long way toward strengthening the law as a tool to stop the wave of voting restrictions advanced by Republicans in recent years.