Outside the Beltway

Federal Court Strikes Down Texas Voter ID Law

A legal setback for the Texas Voter ID law, but not much of a political setback for Voter ID laws in general.

Doug Mataconis · Thursday, August 30, 2012 · 18 comments

A three judge panel of the U.S. District Court for the District of Columbia has struck down the Voter ID law passed by the State of Texas, primarily on the grounds that it violates the Voting Rights Act:

WASHINGTON (AP) — A federal court on Thursday rejected a Texas law that would require voters to present photo IDs to election officials before being allowed to cast ballots in November.

A three-judge panel in Washington unanimously ruled that the law imposes “strict, unforgiving burdens on the poor” and noted that racial minorities in Texas are more likely to live in poverty.

The decision involves an increasingly contentious political issue: a push, largely by Republican-controlled legislatures and governors’ offices, to impose strict identification requirements on voters.

Republicans are aggressively seeking the requirements in the name of stamping out voter fraud. Democrats, with support from a number of studies, say fraud at the polls is largely non-existent and that Republicans are simply trying to disenfranchise minorities, poor people and college students — all groups that tend to back Democrats.

In the Texas case, the Justice Department called several lawmakers, all of them Democrats, who said they detected a clear racial motive in the push for the voter ID law. Lawyers for Texas argued that the state was simply tightening its laws. Texas called experts who demonstrated that voter ID laws had a minimal effect on turnout. Republican lawmakers testified that the legislation was the result of a popular demand for more election protections.

The judges in the Texas case are Rosemary Collyer, an appointee of President George W. Bush; Robert Wilkins, an appointee of President Barack Obama; and David Tatel, an appeals court judge appointed by President Bill Clinton.

Tatel, writing for the panel, called the Texas law “the most stringent in the nation.” He said it would impose a heavier burden on voters than a similar law in Indiana, previously upheld by the Supreme Court, and one in Georgia, which the Justice Department allowed to take effect without objection.

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During an appearance in Houston in July, Attorney General Eric Holder said Texas’ photo ID requirement amounts to a poll tax, a term that harkens back to the days after Reconstruction when blacks across the South were stripped of their right to vote. The attorney general told the NAACP that many Texas voters seeking to cast ballots would struggle to pay for the documents they might need to obtain the required photo ID.

Last December, South Carolina’s voter ID requirement became the first such law to be rejected by the Justice Department in nearly 20 years. Republican presidential candidate Mitt Romney said the attorney general made a “very serious error” by blocking it. Romney said the requirement is easy to meet and will stem voter fraud.

“We don’t want people voting multiple times” and “you can get a photo ID free from your state. You can get it at the time you register to vote,” Romney said.

Assistant Attorney General Thomas Perez, the Justice Department’s chief civil rights enforcer, has said the Texas and South Carolina photo ID laws will hinder many citizens, particularly minorities, in exercising their right to vote.

Across much of the South, the Voting Rights Act of 1965 is viewed as an overly intrusive burden on the states — a relic once used by the Justice Department’s civil rights division to remedy discriminatory practices that no longer exist. Under Section 5 of the act, Texas, South Carolina and all or parts of 14 other states must obtain clearance from the Justice Department’s civil rights division or a federal court before carrying out changes in elections. The states are mostly in the South and all have a history of discriminating against blacks, American Indians, Asian-Americans, Alaskan Natives or Hispanics.

Last year, new voter ID laws passed in Kansas, Mississippi, Rhode Island and Wisconsin. In addition to Texas and South Carolina, Alabama and Tennessee tightened existing voter ID laws to require photo ID. Governors in Minnesota, Missouri, Montana, New Hampshire and North Carolina vetoed strict new photo ID laws.

Rick Hasen of the Election Law Blog has already reviewed the Court’s decision, and makes these observations:

This is a careful, unanimous opinion from a three-judge court which rejects most of the social science evidence submitted by both sides on whether Texas’s voter id law imposes greater burdens on minority voters. Instead, the court bases its analysis on three basically uncontested facts: (1) Minority voters are at least proportionately as likely as white voters in Texas to lack the documents needed for Texas’s new id law (which the Court calls perhaps the most “stringent” in the nation; (2) the new i.d. law will put high burdens on poor people who lack id (many of whom would have to travel up to 200 or 250 miles at their own expense to get the i.d. as well as pay at least $22 for the documents needed to get the i.d.; and (3) minority voters in Texas are more likely to be poor.  Using this simple structure, the court concludes that Texas, which bears the burden of proof in a section 5 case, cannot prove its law won’t make the position of protected minorities worse off.  And the court suggests this was a problem of its own making: Texas could have made the i.d. law less onerous (as in Georgia, which the court suggests DOJ was probably right to preclear) and Texas could have done more to produce evidence supporting its side at trial, but it engaged in bad trial tactics.

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he court was very careful to show that not all voter id laws are created equal, that states may have ample good reasons to impose voter id laws, and that such laws can be put in place in ways which do not discriminate against minority voters.  Not only did the court suggest that Georgia’s voter id law was probably ok; the analysis here could well be key in how the separate district court hearing the challenge to South Carolina’s voter id law will resolve that case. It is certainly possible that South Carolina’s law could be precleared, especially given some key concessions this week at trial.

As Hasen notes, Texas is likely to appeal this case to the Supreme Court (in cases involved three judge District Court panels such as this the appeal goes directly to the Supreme Court rather than the applicable Circuit Court of Appeals), although the Court is clearly not going to hear the case before the November election. This means that Texas will also likely ask the Court to enjoin the applicability of today’s decision until they have ruled. Whether or not to grant that emergency petition would be a decision the Court would have to make relatively soon given the fact that the election is just over two months away and the Court doesn’t return for it’s new term until the beginning of October. Not being an expert in this field of law, it’s hard for me to even wager a guess as to what the likelihood is that the Court would allow Texas to enforce the Voter ID law in November despite the decision today, but my instinct would tell me that they’d be more likely to deny the emergency relief than to grant it.

Hasen also notes that there is another issue that Texas was raising in this case, namely the argument that Section 5 of the Voting Rights Act, which gives the Federal Government the authority to impose special conditions on states, or portions of states, where there has been a history of discrimination against minorities in the area of voting. It’s because of this provision of the act that states like Texas, Georgia, and South Carolina were required to submit their Voter ID laws to the Justice Department for approval and, in two cases, why the laws ended up being reviewed by a special panel of Federal Judges in Washington, D.C. The argument that Section 5 is unconstitutional, though, is a relatively new one that until recently had only been discussed among academics and some conservative politicians. In 2009, the Supreme Court heard a case that in part presented the argument that Section 5 was unconstitutional, but declined to rule on that issue on the ground that the ultimate issue in the case could be decided without dealing with the Constitutionality of this section of the Act. Other than Justice Thomas, who write in dissent that he would’ve struck Section 5 down as unconstitutional, there is no real indication of how any other Justice on the Supreme Court feels about this issue. In this case, the Constitutional claim was never ruled upon because the Court had reserved argument on that issue until it decided the issued ruled on today. On appeal, though, Texas would be able to raise that issue with the Court again.

Without getting too technical of the legal issues here, it seems clear that the biggest takeaway from this decision is what Hasen notes above, that not all Voter ID laws are created equal. The Georgia law was pre-cleared by the Justice Department without any need for litigation. Additionally, South Carolina, which has its own Voter ID law under review by a different panel in the same District Court, recently made some potentially important concessions regarding what kind of explanations they would take from voters for why they were unable to get an acceptable Voter ID. Based on that concession, they may just have saved their law, although there are still several days of testimony to be heard in that case. If Texas had crafted it’s law in the same manner Georgia did, then perhaps they might have survived. In other words, the Court is saying that the Voter ID laws aren’t per se unconstitutional and they don’t violate Section 5 on their case, but they might be struck down if they cross the line as Texas’s law has in their eyes.

Politically, some will see this as a setback for the cause of Voter ID laws, but it’s not nearly as substantial a loss as opponents of such laws might think. As I noted above, there are circumstances under which these laws can be found acceptable under the Voting Rights Act and the Constitution. Additionally, we have already seen a Pennsylvania court uphold that state’s Voter ID law. Additionally, it’s worth noting that such laws remain tremendously popular, with a recent Washington Post poll showing that 74% of voters support such laws. Finally, we will have to wait for the Supreme Court to rule to find out what the ultimate fate of the Texas law itself will be. If the Court ends up reversing this decision, then there will be little to stop states from implementing similar laws. So, while this is a setback for Texas I would not characterize this as a much of a political victory for the opponents of Voter ID Laws.

Here’s the decision:

Texas v. Holder