Ahead of a crucial hearing in federal district court tomorrow, the Trump administration is reversing the Obama administration’s opposition to Texas’s strict voter-ID law, withdrawing the federal government’s claim that the law intentionally discriminates against black and Latino voters.
According to a new brief, the federal government is withdrawing its intentional-discrimination claim because Texas legislators are currently drafting a revised voter-ID law to allow those without strict forms of photo ID to cast a ballot if they have a “reasonable impediment” to obtaining one. “The United States has determined that, rather than continuing to litigate the purpose claim on an evolving record, it should give full effect to the Fifth Circuit’s directives by withdrawing that claim and allowing the Texas Legislature the opportunity to rectify any alleged infirmities with its voter identification law,” says the brief signed by John M. Gore, deputy assistant attorney general for the Civil Rights Division. (The DOJ’s acting head of the Civil Rights Division, Thomas Wheeler, had to recuse himself because he advised Texas lawmakers during passage of the original bill.)
Texas’s voter-ID law—which allows voters to cast a ballot with a handgun permit but not a student ID—has already been blocked three times by federal courts.
A federal district court in DC first blocked the law in August 2012. But after the Supreme Court gutted the Voting Rights Act in June 2013, ruling that states with a long history of discrimination no longer had to approve their voting changes with the federal government, Texas’s law immediately went into effect.
Thousands were disenfranchised as a result. I’ve been telling their stories for years. Elizabeth Gholar was born in rural southwestern Louisiana in 1938, in the small town of Jennings, the county seat of Jefferson Davis Parish. After growing up in the Jim Crow South, she felt voting was always important.
In 2013, after retiring as a school cook, she moved to Texas to live with her daughter in Austin. She had a driver’s license and birth certificate from Louisiana, but ran into problems when she tried to get a driver’s license in Texas, which she needed to vote. She was told that the name on her birth certificate, which had been incorrectly filled out by the midwife who had delivered her at home and listed her mother’s maiden name, had to match her current name.
Gholar returned to a Department of Public Safety office to apply for a voting-only ID, but was once again told she needed a matching birth certificate. She then hired a lawyer in Louisiana to get her an amended birth certificate. She called the cost and time of getting a new birth certificate “another form” of a poll tax. “Voting is a right that everybody else had and it’s a celebration,” she testified in a federal trial in 2014. “And it’s been taken away again.”
The law was blocked again in September 2014 by a federal district court in Texas. Judge Nelva Gonzales Ramos found that 608,470 registered voters in Texas, 4.5 percent of the electorate, did not possess the limited forms of government-issued ID required to cast a ballot, with African Americans three times as likely as whites to not have a voter ID, and Hispanics twice as likely. She ruled that the law, known as SB 14, violated Section 2 of the Voting Rights Act, which the Supreme Court kept in place.
“It is clear from the evidence,” Ramos wrote, “that SB 14 disproportionately impacts African-American and Hispanic registered voters relative to Anglos in Texas…. To call SB 14’s disproportionate impact on minorities statistically significant would be an understatement.”
She called the law “an unconstitutional poll tax” and said it was passed by the Texas legislature “because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.”
In July 2016, the United States Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country, affirmed the bulk of Ramos’s ruling, saying the law “imposes significant and disparate burdens on the right to vote” and had “a discriminatory effect on minorities’ voting rights.”
The court called out Texas for not presenting a single case of voter impersonation to justify the law. “Even under the least searching standard of review we employ for these types of challenges, there cannot be a total disconnect between the State’s announced interests and the statute enacted,” the court wrote. “The provisions of SB 14 fail to correspond in any meaningful way to the legitimate interests the State claims to have been advancing through SB 14.”
However, they disagreed with Ramos’s finding that the law was intentionally discriminatory and urged the district court to hold another hearing to reexamine the issue. That will take place tomorrow in Corpus Christi.
The Fifth Circuit also allowed the law to stay in place but said those without strict photo ID could cast a ballot by signing an affidavit stating they had a reasonable impediment to obtaining ID. More than 16,000 voters used this option in 2016. However, counties across Texas still wrongly told voters strict photo ID was required to vote.
Here’s why the hearing tomorrow matters: If Texas’s law is declared intentionally discriminatory (again), the entire statute will be invalidated and Texas could be forced to clear its voting changes with federal government for a period of time. This recently happened to Pasadena, Texas, where a federal district court found that white officials “intentionally discriminated against Latinos” by reducing the number of majority-Latino districts on the City Council. The court ordered new elections under the previous districts and, because of the finding of intentional discrimination, required Pasadena to approve all future election changes with the federal government through 2023. It is the first jurisdiction to be subject to preclearance requirements since the Supreme Court’s Shelby County v. Holder decision. (The Fifth Circuit heard Texas’s appeal on February 1.)
A similar ruling in Texas’s voter-ID case could set an important precedent. “The intent part of the claim is really important,” says Gerry Hebert of the Campaign Legal Center, a former high-ranking official in the Civil Rights Division. The case will still proceed with civil rights groups arguing against the voter-ID law, but they will no longer have the federal government on their side. Nothing has changed to make the law any less discriminatory, except now there’s a new administration that is trying to suppress votes instead of protect them. The DOJ’s brief in Texas is a disturbing preview of what’s to come.