Sunday, March 8, 2015

Selma and Texas' Discriminatory Voter I.D. Law

by Michael Handley

Thousands gathered with President Obama this weekend at Selma’s Edmund Pettus Bridge, site of Selma’s “Bloody Sunday” march on March 7, 1965.

They gathered to commemorate the 50th anniversary of a brutal police assault on civil rights demonstrators that spurred the passage of the Voting Rights Act in August 1965. In 1963, only 156 of 15,000 eligible black voters in Selma, Alabama, were registered to vote.

The federal government filed four lawsuits against Alabama county registrars between 1963 and 1965, but the number of black registered voters only increased from 156 to 383 during that time. The federal government couldn’t keep up with the pace and intensity of voter suppression with existing laws.

The Voting Rights Act,  signed by President Johnson in August 1965, ended the blight of voting discrimination in places like Selma by eliminating the literacy tests and poll taxes that prevented so many people from voting. (VRA)

The Selma of yesteryear is reminiscent of the current situation in Texas, where one of the nation's most restrictive voter photo ID laws remains enforce.  This restrictive and discriminatory law has been twice blocked by federal courts finding it to be a discriminatory poll tax, but it has been twice revived by the Supreme Court. The law remains enforce today, but the struggle for voting rights continues.  Read on...

Texas' discriminatory voter photo ID law was enacted by the 2011 Texas legislative session. The law requires in-person voters to present photo identification like a Texas driver’s or gun license, a military ID or a passport.  The state of Texas readily admits at least 600,000 registered voters - mostly African-American and Hispanic voters - do not hold any the very limited selection of newly required identification documents.  Testimony in lawsuits challenging the voter photo ID law shows up to 1.2 million registered Texas voters do not hold any of those required identification documents.

Texas' discriminatory voter photo ID law was first blocked by the federal District Court in D.C. in August 2012 under Section 5 of the federal Voting Rights Act.  The VRA required some states and localities with a history of discrimination, including the state of Texas, to obtain federal permission before changing voting procedures. That federal court found that the law had been adopted with an unconstitutional discriminatory purpose, and created an unconstitutional burden on the right to vote.

The Supreme Court in June 2013 effectively struck down Section 5 of the VRA in Shelby County v. Holder, an Alabama case. That SCOTUS decision freed all Section 5 covered voting jurisdictions to enact election laws at will, even laws previously found to be discriminatory, including Texas' voter photo ID law.  Texas officials immediately announced the state would start enforcing the ID law upon that SCOTUS decision.

Texas' voter photo ID law was immediately again challenged in a law suit filed in the U.S. Southern District Court, located in Corpus Christi, Texas, by an array of individuals, including Congressman Marc Veasey, the League of United Latin American Citizens (LULAC), other Texas voters, and the U.S. Department of Justice under other Sections of the VRA.  That suit took over a year to actually go to a trial hearing. 

After a two-week trial conducted in September 2014, U.S. District Court Judge Nelva Gonzales Ramos struck down Texas' law with a 147-page opinion issued on October 9, 2014. Judge Ramos found the law had been adopted “with an unconstitutional discriminatory purpose,” created “an unconstitutional burden on the right to vote” and amounted to a poll tax.  Two days later, and less than two weeks before the start of early voting for the November 2014 gubernatorial election, Judge Ramos entered an injunction blocking the law.

Greg Abbott, the state attorney general for Texas and then Republican candidate for governor, immediately filed an emergency motion to the U.S. Court of Appeals for the Fifth Circuit asking that appellate court to stay Judge Ramos' final judgment pending appeal and asked for expedited consideration. The Fifth Circuit Court did stay Judge Ramos’s injunction saying, "We must consider this injunction in light of the Supreme Court’s hesitancy to allow such eleventh-hour judicial changes to election laws.

Plaintiffs in the District Court case immediately appealed the Fifth Circuit Court's decision with the Supreme Court. The brief filed with the Supreme Court said confusion at the polls was unlikely under Judge Ramos’s injunction. “Expanding the list of acceptable IDs will not disenfranchise any voter,” the brief said, “since the forms of ID acceptable under the old voter ID system include all forms of photo ID specified by” the 2011 law.

The Supreme Court upheld the appellate court's emergency stay against Judge Ramos’s injunction, allowing Texas to use its strict voter identification law in the November 2014 election.

Justice Ruth Bader Ginsburg issued a six-page  dissent to the court’s order saying the court’s action “risks denying the right to vote to hundreds of thousands of eligible voters.” Justices Sonia Sotomayor and Elena Kagan joined the dissent.  Justice Ginsburg wrote, the law “may prevent more than 600,000 registered Texas voters (about 4.5 percent of all registered voters) from voting in person for lack of compliant identification. A sharply disproportionate percentage of those voters are African-American or Hispanic.” Justice Ginsburg added that, “racial discrimination in elections in Texas is no mere historical artifact.”

The "emergency stay" blocking Judge Ramos' action to strike down Texas' photo voter ID law remains in place while the State of Texas appeals Ramos' ruling to the Fifth Circuit Court - and ultimately the Supreme Court - for a final determine.

The Stated of Texas last week filed an opening brief with the Fifth Circuit Court in its appeal of Judge Ramos' ruling blocking Texas’s voter-ID law.  The main points of the brief includes:
  1. The holding that the voter-ID law is a poll tax violates Supreme Court precedent—namely, Justice Stevens’s opinion in Crawford v. Marion County Election Board. (Texas provides free voter IDs. Anyone who needs to obtain a copy of his birth certificate in order to obtain the voter ID can do so for $2-$3. In Crawford, Indiana charged $3-$12 for a birth certificate.) Brief at 13-16. 
  2. The U.S. Department of Justice and the other plaintiffs failed to show that the voter-ID law prevented a single person from voting. DOJ lawyers “have crisscrossed Texas, traveling to homeless shelters with a microphone in hand, searching for voters ‘disenfranchised’” by the voter-ID law—but have come up empty. Brief at 20. 
  3. Despite the extraordinary and unprecedented fishing expedition that Judge Ramos authorized into the files and e-mails of state legislators and their staff, DOJ found not a single document evidencing a desire to suppress minority voting. Brief at 44-45.

Plaintiffs in the case also filed a brief last week urging the Fifth Circuit Court to uphold District Court Judge Ramos' ruling striking down Texas’ voter photo ID law (SB 14) on these main points:
S.B. 14 was enacted on May 27, 2011, and Texas began enforcing it on June 25, 2013. This lawsuit began the next day, when Congressman Marc Veasey and others filed a complaint in the United States District Court for the Southern District of Texas. The United States and other Plaintiffs thereafter filed suit or intervened, and the district court consolidated all the lawsuits with consent of all parties. These suits collectively challenged Senate Bill 14 (S.B. 14) on four main grounds:
  1. S.B. 14 was enacted with discriminatory purpose against African-American and Hispanic voters (statutory violation under Section 2 of the Voting Rights Act, as well as constitutional violation under the 14th and 15th Amendments);
  2. S.B. 14 results in discrimination against African-American and Hispanic voters (statutory violation under Section 2 of the Voting Rights Act);
  3. S.B. 14 is a tax on the right to vote (constitutional violation under the 14th and 24th Amendments) ;
  4. S.B. 14 unduly burdens the right to vote without sufficient justification (constitutional violation under the 1st and 14th Amendments).
The trial began on September 2, 2014, and ran for two weeks, including a day for closing arguments. The district court’s Opinion and Order found liability on all four grounds, and the district court entered an injunction against enforcement of S.B. 14. This appeal followed.

The parties of course dispute the ultimate facts in this case, such as whether the purpose of S.B. 14 was to discriminate and whether the burdens it imposes on voters are heavy. The underlying facts, however, are essentially undisputed.
UPDATE: Texas' Voter Photo I.D. Law Appeal Fifth Circuit  Hearing Tuesday, April 28, 2015

Additional background: Reagan-Appointed Federal Judge Who Approved First Photo ID Law in 2008 Writes Devastating Dissent AGAINST Photo ID Voting Restrictions.

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