Thursday, August 6, 2015

Texas’ Voter I.D. Law Discriminatory, Rules U.S. Fifth Circuit Court

On Wednesday, a three-judge panel of the U.S. Fifth Circuit Court of Appeals in New Orleans unanimously agreed with U.S. Southern District Court Judge Nelva Gonzales Ramos' October 2014 finding that Texas’ SB14 photo voter ID law has a discriminatory effect on black and Latino voters, and therefore violates section 2 of the 1965 Voting Rights Act.

After a two-week trial on the constitutionality of Texas' photo I.D. law in September 2014, Judge Ramos struck down Texas' voter photo I.D. law with a 147-page finding 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.

The state of Texas petitioned the Fifth Circuit Court to stay Judge Ramos' order, pending the appeal. The stay was granted and the the Fifth Circuit three-judge panel heard the appeal on April 28, 2015.

The 2011 SB14 law reduced the types of identification documents voters can show to vote from fourteen down to just seven types of photo identification documents. Four are available from the Texas Department of Public Safety — driver’s licenses, personal IDs, concealed-handgun permits, and election identification certificates. Federally issued passports, citizenship certificates and military IDs also are acceptable.

This Texas photo voter I.D. lawsuit is unique among legal challenges to similar voter I.D. laws adopted by other states, because Judge Ramos found evidence of intentional racial discrimination by Texas Republican legislators in drafting the SB14 voter I.D. legislation in 2011.

The full Fifth U.S. Circuit Court of Appeals is one of the most conservative in the nation. The three-judge panel who will rule on the appeal is composed of: Chief Circuit Judge Carl Stewart, appointed by President Bill Clinton; Circuit Judge Catharina Haynes, appointed by President George W. Bush; and Federal District Judge Nannette Brown, appointed by President Barack Obama. Judge Brown normally sits on a trial court in New Orleans, but was temporarily assigned for this specific Fifth Circuit case. The ruling issued Wednesday was written by Judge Haynes and supported by Judge Stewart and  Judge Brown.

The Fifth Circuit three-judge panel rejected Judge Ramos’s finding that the SB14 law was enacted with the intent to discriminate, saying the evidence she relied on — Texas’ “uncontroverted and shameful history” of racial discrimination in voting, as well as comments by lawmakers who were opposed to the law — was not enough. The appeals panel said Wednesday that because illegal intent to discriminate had not been established — in passing the law, legislators declared an interest in preventing voter fraud — the district court in Texas should seek ways to alter the voter law short of overturning it entirely. 

The three-judge appellate court panel remanded the case back to the U.S. Southern District Court ordering Judge Ramos to reconsider her finding of "intentional discrimination" using different evidence. Under Section 3 of the Voting Rights Act, a finding that legislators had intentionally adopted a discriminatory law, would allow Judge Ramos to order a restoration of federal preclearance oversight over Texas voting laws.

On June 25, 2013, the U.S. Supreme Court struck down a part of the Voting Rights Act that required Texas and other states to get a federal DOJ or District Court approval before implementing any election law change.

The Court struck down Section 4 of the Voting Rights Act, the provision of the landmark civil rights law that designates which parts of the country must have changes to their voting laws cleared by the U.S. Department of Justice or a federal court. With Section 4 invalidated, the states listed in Section 4, which includes Texas, are no longer compelled to comply with Section 5 preclearance requirements or previous DOJ or District Court rulings. Those states are now free to enforce laws previously blocked under Section 5 regulations.

On August 30, 2012, a federal DC Court three-judge panel blocked Texas' SB14 Voter Photo I.D. Law, under provisions of the Voting Rights Act struck down by the Supreme Court. The three-judge panel found that SB 14 imposed "strict, unforgiving burdens on the poor" and noted that racial minorities in Texas are more likely to live in poverty. Texas immediately started enforcing the SB14 after the June 25, 2013, Supreme Court decision.
The appellate court panel also said Judge Ramos could not throw out the entire SB14 law and ordered her to fashion a specific legal remedy that recognizes legislators declared interest to prevent voter fraud in passing the SB14 law.  Such a remedy, for example, could be to reinstate the acceptance at the polls of certain forms of identification, such as the Voter Registration Card, that may be more easily available.

Until Judge Ramos reconsiders whether the Texas legislature truly had racist motives when passing the law, Texas gets to keep SB14 on its books and enforce it, subject to whatever limited Remedy Ramos orders to keep it in check. Texas also escapes being again placed under federal preclearance review of new election laws.

Texas Attorney General Ken Paxton now has three options:  1) Seek an en banc review of the three-judge panel's decision by the full Fifth Circuit, which would set aside the panel's ruling; 2) Immediately appeal the three-judge panel's decision directly to the Supreme Court; or 3) Return to the U.S. Southern District Court and work with Judge Ramos and the Plaintiff's, including individual voters, civil rights groups and the Department of Justice, following the three-judge appellate panel's remand orders.  If the Fifth Circuit en banc review happened, the state could go on to the Supreme Court after that is completed.  In a statement issued Wednesday afternoon, Texas Gov. Greg Abbott said, “Texas will continue to fight for its voter ID requirement to ensure the integrity of elections in the Lone Star State.”  He did not say whether the state would appeal.

What ever happens next, this case will almost certainly ultimately be decided by the U.S. Supreme Court. SCOTUS justices last considered such a law in 2008, upholding Indiana’s statute despite a total lack of evidence of fraud. Justice John Paul Stevens, now retired, who wrote the 2008 decision, has since admitted misgivings about voter ID laws. So has Richard Posner, a federal appeals judge in Illinois who had previously upheld the Indiana law, but later said that these laws are “a means of voter suppression rather than of fraud prevention.”

Here, in summary, are the key points of the Fifth Circuit's ruling, originally published by Lyle Denniston at SCOTUSblog:
First, the 2011 photo ID requirement is illegal under Section 2, because of the negative impact it has on the voting opportunities of minorities and the poor.

Second, Judge Ramos must now reopen the case in her Corpus Christi court, and fashion a specific legal remedy for that violation.

Third, the panel stressed, however, that the judge should not issue a remedy order that is broader than the need to remedy the specific violation.  It suggested several ways that such an order might be written that would leave Texas free to continue to enforce some form of photo identification requirement.   The panel stressed that the case probably would not justify a new order barring enforcement of every part of the law as a way to cure the Section 2 violation.  The judge must take into account whether the legislature did have some valid policy reasons for wanting to impose new identification rules.

Fourth, the Fifth Circuit rejected her conclusion that the legislature had passed the law with a specific discriminatory purpose.  However, it stressed, the judge could make such a finding again, after a new review of the evidence — although it excluded some proof that Judge Ramos had accepted, finding it unreliable as proof of illegal intent, including Texas’s history some years ago in adopting discriminatory laws.

Fifth, if the judge does make a new finding of discriminatory intent, then she would be obliged to issue a broad injunction to prohibit enforcement of the law as written, the court stressed.  In that event, she would not have to reconsider a remedy for the violation of Section 2 that both she and the Fifth Circuit had found to exist.

Sixth, the panel overturned Judge Ramos’s separate ruling that the photo ID law, because it imposed some cost on persons seeking to obtain photo IDs to satisfy the law, was a form of an unconstitutional poll tax.   The photo ID law, the panel said, simply did not fit that definition.  Part of the judges’ reasoning was that, since this case began, the Texas legislature has removed some of the fees that previously were charged for obtaining a birth certificate to support a photo ID request.

Finally, the Fifth Circuit, having found a violation of Section 2 on the discriminatory impact point, said it was unnecessary to rule on the challengers’ claim that the photo ID law violated the Constitution’s Fourteenth and Fifteenth Amendments.
Case History

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