Texas Voter ID law again struck down for purposeful racial discrimination

The Houston Chronicle reports that Federal judge again tosses out Texas voter ID law:

A federal judge who has compared Texas’ voter ID requirements to a “poll tax” on minorities once again blocked the law Wednesday, rejecting a weakened version backed by the Trump administration and dealing Texas Republicans another court defeat over voting rights.

You can read the 27 page opinion and order  HERE (.pdf).

U.S. District Judge Nelva Gonzales Ramos rejected changes signed by Republican Gov. Greg Abbott this summer as not only lacking but also potentially chilling to voters because of new criminal penalties. The new version didn’t expand the list of acceptable photo identifications — meaning gun licenses remained sufficient proof to vote, but not college student IDs.

Instead, the changes would allow people who lack a required ID to cast a ballot if they signed an affidavit and brought paperwork that showed their name and address, such as a bank statement or utility bill. Those revisions were supported by the U.S. Justice Department, which under President Barack Obama had joined Democrats and minority rights groups in suing over the law.

But that position has changed with President Donald Trump in charge, who has established a “fraudulent voter fraud commission” to investigate allegations of voter fraud in the 2016 elections. In February, the Trump Justice Department abandoned the argument Texas passed voter ID rules with discrimination in mind and said changes signed by Abbott should satisfy the courts.

Texas first passed the voter ID law in 2011, the same year the GOP-controlled Legislature adopted voting maps that were also struck down as discriminatory [in mid-August]. See Rick Hasen, Breaking: 3-Judge Court Issues Latest Order in Texas Redistricting Case (Congressional Seats), Finding Continued Intentional Racial Discrimination. You can read the court’s 107-page order here.

UPDATE: The Texas Tribune reports:

Texas Attorney General Ken Paxton revealed Friday that Gov. Abbott won’t ask lawmakers to redraw the state’s congressional map — found by a federal court this week to discriminate against Latino and black voters — in a fresh round of legislative overtime.

Instead, Paxton is appealing the ruling to the U.S. Supreme Court and trying to keep the boundaries intact for the 2018 elections, according to his filing to a panel of three judges in San Antonio.

Back to the Chronicle:

Judge Gonazles Ramos, who first struck down the law in 2014, said Texas didn’t go far enough with its changes and said that criminal penalties Texas attached to lying on the affidavit could have a chilling effect on voters who, fearful of making an innocent mistake on the form, simply won’t cast a ballot.

Nor was she swayed by Texas clarifying under the revised law, known as Senate Bill 5, that both U.S. passport books and cards would be accepted. “This feature remains discriminatory because SB 5 perpetuates the selection of types of ID most likely to be possessed by Anglo voters and, disproportionately, not possessed by Hispanics and African-Americans,” she wrote.

It was another major ruling over voter ID laws this year. In May, the U.S. Supreme Court shut the door on efforts by North Carolina to revive a state law that mandated voter identification. The Texas voter ID law could now be the high court’s next opportunity to weigh in.

The decision also leaves open the potential of Texas becoming the first state dragged back under federal oversight since the U.S. Supreme Court in 2013 gutted the federal Voting Rights Act, which had required states with troubled racial histories to submit election changes for approval. Gonzales Ramos left that question open for consideration later.

Texas has spent years fighting to preserve both the voter ID law — which was among the strictest in the U.S. — and its voting maps. Earlier this month, a separate federal court found racial gerrymandering in Texas’ congressional maps and ordered voting districts to be partially redrawn before the 2018 elections.

“From discriminatory gerrymandering to discriminatory voter ID laws, it has become entirely clear that Texas Republicans are rigging our election system,” said Gilberto Hinojosa, chairman of the Texas Democratic Party.

Not just in Texas … wherever the GOP has one party control of state legislatures and state offices. Intentional and purposeful acts to prevent citizens from exercising their constitutional right to vote should be considered a crime for which they do time, not simply dismissed as “politics” and unprosecutable under legislative privilege.

Rick Hasen says this is “an important ruling, but a more important one is yet to come from this court: whether Texas will be put back under the preclearance provisions of the Voting Rights Act.” Federal Court, Reaffirming Racially Discriminatory Purpose of Texas Voter ID Law, Blocks Its Use Entirely in Future Elections:

To simplify things just a bit, when the district court first looked at this case, it determined that Texas’s voter ID law had a racially discriminatory effect, violating Section 2 of the Voting Rights Act, as well as a racially discriminatory purpose, violating the VRA and the 14th and 15th Amendment of the Constitution. When the case reached the Fifth Circuit on appeal, a sharply divided court sitting en banc (all of the 5th Circuit judges) agreed that the law violated Section 2 given its racially discriminatory effect. But the judges also held that the trial court had to reconsider the question of racially discriminatory purpose, because the court considered some evidence it should not have in evaluating purpose. The Supreme Court did not take a further appeal, with Chief Justice Roberts issuing a separate statement saying that the case was not really final enough to merit Supreme Court review.

For two reasons, it matters whether the courts find discriminatory purpose in addition to discriminatory effect. When there is just a discriminatory effect, the remedy is much narrower. In this case, the interim remedy was to tinker with the voter id law, such as allowing voters to file an affidavit explaining why they lack the necessary ID signed under penalty of perjury. With a finding of purpose, however, the entire law could (and today was) thrown out. Second, a finding of intentional discrimination can be the basis, under section 3c of the Voting Rights Act [“bail-in” provision], to put Texas back under the preclearance provisions of the Voting Rights Act for up to 10 years, at the court’s discretion. The court has scheduled further briefing on the section 3c issue for the end of the month.

Today the court reaffirmed the discriminatory purpose finding, and held that the tweaks Texas made to its voter id law in a recent session did not solve the problem of discriminatory purpose. In some ways Texas made things worse. The affidavit requirement, for example, could intimidate voters given that many sections open up voters to prosecutions for felony perjury. The Court also noted that the new law did not include any money for voter education, which the court found crucial to a fairly applied voter id law.

What comes next? Texas will no doubt appeal this ruling to the Fifth Circuit, and the first question will be some kind of interim relief—Texas will ask to continue to enforce its voter ID law as this case works its way through the 5th Circuit (and likely back to the entire 5th Circuit sitting en banc). What happens in the request for a stay of the district court’s order may give us some sense of what is likely to happen on the merits at the Fifth Circuit.

But ultimately this case is heading to the Supreme Court. What kind of reception it gets there will likely depend upon (1) whether Justice Kennedy is still on the Court and (2) how Justice Kennedy, if still on the Court, views the evidence of intentional discrimination in this case.

If the district court later puts Texas back under preclearance, that decision too could put the case back in front of the Supreme Court.

Stay tuned.