Texas voter ID proponents are confident the common-sense voting requirement will stand, following a strong defense in federal appeals court Tuesday against the election integrity law’s challengers.
Texas Attorney General Ken Paxton said he’s hopeful the U.S. 5th Circuit Court of Appeals will uphold the state’s revised voter ID law.
At Tuesday’s appellate court hearing, a three-judge panel questioned plaintiffs’ claims that the law was passed to intentionally discriminate against black and Hispanic voters.
“If there is nothing that says we are trying to advantage white voters … isn’t that proof that there wasn’t discriminatory intent?” Judge Edith Jones asked the plaintiffs’ lawyers.
“You have nothing,” Jones added. “Not one stray word reflecting a racially biased motive appears.”
Allegations of intentional racial discrimination are at the heart of the plaintiffs’ case. Lawyers for the Democrat-aligned groups challenging the law must prove that the photo voter ID requirement, enacted in 2011 and revised this year, was passed by lawmakers with a discriminatory intent to keep protected classes of voters – in this case, black and Hispanic voters – from voting.
“We appreciated the opportunity to inform the 5th Circuit that the Legislature passed Senate Bill 5 last session to comply with the changes that this court ordered to the original voter ID law, Senate Bill 14, from 2011,” Paxton said in a statement.
The 5th Circuit ruled last year that SB 14 had a discriminatory effect under the statistics-based legal theory of disparate impact, but reversed a district court’s ruling that it was passed with a discriminatory intent.
In response, Texas lawmakers passed SB 5 during this year’s legislative session. The legislative fix expanded photo ID options and lets voters without an accepted form of ID sign a reasonable impediment declaration and vote a regular ballot. That means no eligible voter is unable to cast a ballot simply because they lack a photo ID.
The revision “completely changes the nature of the law,” Texas Solicitor General Scott Keller told the appellate court Tuesday.
The question of intent, however, was remanded to U.S. District Judge Nelva Gonzales Ramos to reconsider her 2014 finding that SB 14 was passed with a racially discriminatory purpose. Despite “infirmities” the appellate court found in her initial ruling, Ramos reached the same conclusion in April, using the same reasoning rejected by the 5th Circuit.
In August, Ramos also struck down the newly enacted SB 5. Keller argued Tuesday that the appellate court should reverse that decision too.
Judges and attorneys for the state questioned why plaintiffs continue to litigate when, as Paxton pointed out, “Those who challenged the voter ID law cannot identify one person who faces a substantial burden to voting under the reasonable-impediment exception of the revised law.”
Plaintiffs, the state’s attorneys said Tuesday, are trying to build a case for putting Texas back under federal “preclearance” – a provision of the Voting Rights Act whereby every single change to a state’s voting laws and practices must be pre-approved by the federal government. That requires a finding of intentional discrimination. Judge Patrick Higginbotham agreed plaintiffs are clearly trying “to keep that intent finding intact.”
The U.S. Department of Justice appeared in court Tuesday as well, lending support to the state’s case. DOJ attorney John Gore argued that SB 5 resolves the issue of lawmakers’ intent in enacting SB 14 because it eliminates any discriminatory effects. A DOJ brief filed after passage of SB 5 concluded that the revision “removes any discriminatory effect or intent” and “eliminates any ongoing violation of federal law.”
While Texans await the judges’ decision, which is likely to be appealed to the U.S. Supreme Court, an earlier 5th Circuit ruling keeps the state’s revised voter ID law in effect for future elections