En Banc Fifth Circuit Court of Appeals hears oral argument in Texas Voter ID case

Lawyers for the state of Texas today defended that state’s discriminatory voter ID law before an en banc panel of the Fifth Circuit Court of Appeals in the case of Veasey v. Abbott. Link to Oral Argument.

The Texas Tribune reports, In High-Profile Case, Texas Defends Its Voter ID Law:

VotersStanding before all 15 members of the U.S. 5th Circuit Court of Appeals, Texas Solicitor General Scott Keller argued that judges were wrong to conclude in two previous rulings that the Texas Legislature discriminated against minority and low-income voters in passing a 2011 law that stipulates which types of photo identification election officials can and cannot accept at the polls.

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Lawyers representing the U.S. Department of Justice, minority groups and other plaintiffs disagreed, asking the judges to affirm what a lower court — and a three-judge panel in this same courthouse — previously concluded: that Senate Bill 14 has a “discriminatory effect” on Hispanic, African-American and other would-be voters in violation of Section 2 of the Voting Rights Act.

Only a handful of judges asked questions at length on Tuesday, making it difficult to know where the majority stands. But the 5th Circuit is considered among the nation’s most conservative, with 1o of its members having been appointed by Republican presidents.

Paxton left the courtroom Tuesday feeling “optimistic” that the law, “which has worked” in preventing voter fraud would survive, he told the Tribune.

“There’s been no discriminatory effect shown – they never provided any evidence,” Paxton said. “We’ve done everything we can to provide a way for people to vote. It’s clear.”

Clearly the trial court and the three judge appellate panel disagreed, finding purposeful discriminatory intent on the part of the Texas legislature in striking the law down as unconstitutional.

Asked whether Texas should also strengthen rules for absentee voting, considering that experts say those ballots are far more prone to fraud than those cast in person, Paxton said that was “totally up to the legislature.”

He added, however: “Anything that eliminates fraud is usually good.”

Chad Dunn, an attorney for the plaintiffs, said he wouldn’t bother trying to read the judges’ leanings based on their questions, but he nevertheless felt confident, calling the Texas law “indefensible.”

In the courtroom, opponents of the rule argued that not all voter ID laws violate the federal law, but that the state’s unusually short list of what election workers can accept at the polls is particularly burdensome for certain voters — particularly minorities.

“The question is whether there are requirements in SB 14 that are needlessly hard” for certain voters, Dunn told the judges. “The details of this law – which have never been justified — are what make this unconstitutional.”

The Texas law requires most citizens (some, like people with disabilities, can be exempt) to show one of a handful of types of identification before their ballots can be counted. Those include: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card or a U.S citizenship certificate with a photo. [Texas Voter ID Allows Handgun Licenses But Not Student IDs.]

Texas is among nine states categorized as requiring “strict photo ID,” and its list of acceptable forms is the shortest.

Experts have testified that more than 600,000 Texans lack such identification, though not all of them have necessarily tried to vote. Those citizens can obtain “election identification certificates” free of charge, but only if they are able to produce a copy of their birth certificate.

Voting rights experts are watching closely, saying this is one of two such battles, alongside one in North Carolina, that the U.S. Supreme Court — currently split along ideological lines — may ultimately decide.

In defending its law, Texas points to a 2008 U.S. Supreme Court ruling — Crawford v. Marion County Election Board — that determined that an Indiana photo ID law should be upheld even if it was “fair to infer that partisan considerations may have played a significant role” in its enactment. At that time, the high court said Indiana had a “valid interest” in “deterring and detecting voter fraud” and had implemented the law neutrally.

“The plaintiff’s aim here, is to essentially try to re-litigate Crawford,” Keller argued Tuesday.

This is true, and for good reason. The judges who wrote the opinions in Crawford have since argued that the decision was wrong based upon what they now know. Seventh Circuit Judge Richard Posner: I may have been wrong on voter ID, but the point was about about the dearth of data, and Justice Stevens who wrote the plurality opinion for the U.S. Supreme Court in Crawford. Stevens says Supreme Court decision on voter ID was correct, but maybe not right. Justice Stevens said recently “I learned a lot of things outside the record that made me very concerned about that statute,” … “And I thought in that case I had a duty to confine myself to what the record did prove, and I thought it did not prove the plaintiffs’ case. And as a result, we ended up with a fairly unfortunate decision.” (A Stevens switch would not have changed the outcome of the case).

For both judges, the problem was the lack of data in the record in Crawford. This is the old adage that “bad facts make bad law.”  This is not a problem in the Texas case where the plaintiff’s entered a substantial amount of data through expert testimony at trial.

Judge Edith Jones, a Ronald Reagan appointee, agreed with Texas that the Crawford decision supports the notion that the “state has legitimate interest in combatting voter fraud.”

But Plaintiffs pointed out key differences between the Texas voter ID law and Indiana’s, which includes a much broader list of acceptable identification. And they asked why Texas, when drawing up its law in 2011, would not have used the three-year-old Crawford decision for guidance — instead of drawing up its much narrower requirements.

Chief Judge Carl Stewart, a President Bill Clinton-appointee, also probed that question.

“Am I missing something here?” he asked in discussing the Indiana case. Later in the arguments, he listed a host of states that require photo ID but allow more options than Texas does. “Why are you saying ‘we’re like those other states’?”

Lawyers on each side sparred over what kind of evidence is needed to prove discrimination under the law. Keller argued that voter turnout figures showing a disparate impact on minority owners was needed. Opponents of the law argued that demonstrating that the law disproportionally diminished some Texans’ “opportunity” to cast a vote was evidence enough.

If that broader view were adopted, Keller suggested, all state election laws would be more vulnerable to challenges under the federal Voting Rights Act.

Janai Nelson, arguing on behalf of the NAACP’s Legal Defense and Education Fund, pointed to the environment under which the Texas law was passed, noting that lawmakers voted for it amid a legislative session that also saw intense race-infused debates surrounding issues like immigration and sanctuary cities — raising questions about their mindset and intent in creating the ID rules.

“The role of race,” she said, “simply cannot be ignored.” 

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Though a federal district court and a panel of 5th Circuit judges have ruled that the Texas requirements violate the U.S. Voting Rights Act,the law has been enforced at polling locations around the state since 2013. The outcome in here could determine whether the rules remain in effect for the presidential election in November. The U.S. Supreme Court set a July 20 timetable for the appeals court to rule.

Which means that this case is headed to the U.S. Supreme Court  in late July, regardless of how the Fifth Circuit rules.

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