| A federal three-judge panel in Washington, D.C. today struck down Texas' voter ID law. The court's ruling may be read here.
In a unanimous ruling, the court held that Texas failed to show that the Voter ID requirement would not have a retrogressive effect "in the position of racial minorities with respect to their effective exercise of the electoral franchise." Essentially, the court ruled that SB 14, the voter ID law, would worsen the position of minority voters compared to the general populace.
Ruling that this was sufficient to strike down the law, the court declined to rule whether the law would have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. The court refused to grant Texas the declaratory relief it sought.
The ruling was widely anticipated. An appeal of the ruling is expected. Moreover, this appeal will go not to the federal appeals court in D.C., as would most cases decided before the D.C. district court and subsequently appealed. This case decided a question under Section 5 of the Voting Rights Act. Pursuant to the statute, this case will be appealed directly to the U.S. Supreme Court.
Voter ID laws and deep concerns about disenfranchisement of voters - particularly poor and minority voters and voters with disabilities - have been sweeping the nation. SB 14, Texas' Voter ID law, had been one of the more onerous laws.
In reaching its decision, the court cited the built-in, yet unstated, costs of obtaining a photo identification to vote.
"Importantly, it costs money to obtain any of these documents. This means that EIC applicants-i.e., would-be voters-who possess none of these underlying forms of identification will have to bear out-of-pocket costs."
"(A copy of a court order indicating a change of name and/or gender costs $5 for the records search, plus $1 per page for the court order. Actually obtaining a legal change of name and/or gender costs far more-at least $152. See Attorney General's Response to the State's Advisory Regarding Election Identification Certificates, ECF No. 330, at 2-3.) More expensive options exist as well, ranging from $30 for an "expedited" birth certificate order all the way up to $354 for a copy of U.S. citizenship or naturalization papers."
The court did mention that while elderly voters and voters with disabilities continued to receive protections under the statutes, they would have to provide documentation to obtain their exemptions and thus the protections under the statute.
Perhaps anticipating appeals from the Texas side, the court preemptively noted that its decision was mindful of and fully accounted for federalism concerns expressed earlier in Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193, 202 (2009), U.S. Supreme Court precedent surrounding voter identification laws in Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008), and the recent decision by the federal appellate court in D.C. in Shelby County v. Holder, 679 F.3d 848 (D.C. Cir. 2012), which upheld the constitutionality of Section 5 of the Voting Rights Act.
The court rejected Texas' argument that voters who do not obtain identification under voter ID laws choose not to vote. The court also rejected the accompanying assertion by Texas that the voter ID posed a minor inconvenience to the subject voters.
Conservatives had been emboldened to push for Voter ID laws particularly in the wake of the U.S. Supreme Court decision in Crawford v. Marion County Election Bd., 553 U.S. 181 (2008), which had upheld a voter ID in Indiana. Crawford was easily distinguished from the Texas law in that Indiana - unlike Texas - was and is not a covered jurisdiction under Section 5 of the Voting Rights Act and was not required to first seek preclearance of its law from the U.S. Department of Justice. The opinion in Crawford can be viewed here.
The court also made this distinction. Indiana is not covered by Section 5 of the Act and does not have to seek preclearance of its laws changing voting procedure. Texas, however, is covered by the Act and must seek preclearance. Moreover, the court reasoned, the case of SB 14 concerns not all Texas voters, but voters who are racial and language minorities; importantly, Texas bore the burden of proof, where Indiana did not.
The court did hedge in distinguishing from Crawford. The court did acknowledge that preventing voter fraud is a legitimate interest for Texas.
The court distinguished the inconvenience cited in Crawford from the one here, again hinging on the difference between Crawford's facts (all voters in the state) and the facts here (racial and language minorities in the state):
"After all, would-be voters who must take a day off work to travel to a distant driver's license office have most certainly been exposed to burdens beyond those usually associated with voting. The same is likely true if prospective voters must pay a substantial amount of money to obtain a photo ID or wait in line for hours to get one. In some circumstances these heavy burdens could well discourage citizens from voting at all. And if such burdens fall disproportionately on racial or language minorities, they would have retrogressive effect "with respect to their effective exercise of the electoral franchise." Beer, 425 U.S. at 141."
The court reasoned that Texas had to prove that racial and language minorities could easily obtain the ID without cost or major inconvenience. The court then found that Texas failed to meet this burden. As such, the voter ID would, in fact, have a retrogressive effect on racial and language minorities, thus making them worse off relative to the general populace with regards to voting.
Read more below the jump.
|Notably, when it came to access to voter ID, the court cited the testimony of Rep. Trey Martinez Fischer and Sen. Carlos Uresti:
"Reinforcing this proposition, Texas Representative Trey Martinez Fischer, who represents a district which includes the city of San Antonio and its outskirts, testified that "you will not find a DPS office from downtown San Antonio to the western boundary, which is heavily concentrated with African-Americans, and particularly Hispanics." Trial Tr. 7/10/2012 (AM) 119:23-25. State Senator Carlos Uresti echoed this concern, testifying that in his district-which is "70 percent Hispanic, about 5 percent African American"-"[t]here are some towns . . . where the nearest DPS office is about a 100 to 125 mile one way" trip away. Trial Tr. 7/12/2012 (AM) 7:16-8:1. And far from disputing the long travel times imposed by the dearth of DPS offices, Texas's counsel told us that "I don't think that the facts of the geographic distances [between DPS offices] are necessarily contested." Trial Tr. 7/13/2012 52:4-5."
The court summarized the case as such:
"To sum everything up: section 5 prohibits covered states from implementing voting laws that will have a retrogressive effect on racial minorities. See Beer, 425 U.S. at 141. Texas, seeking to implement its voter ID law, bears the burden of proof and must therefore show that SB 14 lacks retrogressive effect. Georgia, 411 U.S. at 538. But as we have found, everything Texas has submitted as affirmative evidence is unpersuasive, invalid, or both. Moreover, uncontested record evidence conclusively shows that the implicit costs of obtaining SB 14-qualifying ID will fall most heavily on the poor and that a disproportionately high percentage of African Americans and Hispanics in Texas live in poverty. We therefore conclude that SB 14 is likely to lead to "retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer, 425 U.S. at 141. Given this, and given that Texas must show that SB 14 lacks both discriminatory purpose and effect, we have no need to examine whether the law was enacted with discriminatory purpose. Accordingly, we shall deny Texas's request for declaratory relief."
The inception of the voter ID law push is fairly well documented. Organizations such as the innocuously-named American Legislative Exchange Council (ALEC) were all too willing to help states implement voter ID laws, according to an article from News21.
According to News21:
"Lawmakers proposed 62 photo ID bills in 37 states in the 2011 and 2012 sessions, with multiple bills introduced in some states. Ten states have passed strict photo ID laws since 2008."
"[M]ore than half of the 62 bills were sponsored by members or conference attendees of the American Legislative Exchange Council (ALEC), a Washington, D.C., tax-exempt organization."
Since the Marion decision and the subsequent passage of voter ID laws in several states, court challenges to voter ID laws have met with mixed results.
In May, the federal appeals court in D.C. rejected an Alabama challenge to the constitutionality of the Voting Rights Act. A voter ID requirement in South Carolina also failed to obtain preclearance from the Justice Department and is up for judicial review in D.C. this week. This month, a Pennsylvania state court upheld a challenge to that state's new voter ID law, and that case is set to go before the Pennsylvania Supreme Court, though the parties are currently wrangling over a September versus October hearing date.
Today's ruling joins that class and doesn't necessarily resolve the issue for Texas voters. As we pointed out in July at the conclusion of the trial, appeals to the Supreme Court loom. If the Supreme Court even agrees to hear the case, it still has to be briefed, argued, and decided. If Texas loses there, there is no voter ID requirement. If Texas wins, it could happen after the general election (so, no voter ID requirement this time around) or it could happen so close in time to the election that implementing the law is simply impossible.
Check out our poll tax analysis of SB 14 from last year; review our initial take on the Voter ID Complaint; and more coverage of the Voter ID law and this suit here and here. See also our review of the Alabama constitutional challenge and the impact of Voter ID on Texans with disabilities.
The case is State of Texas v. Holder, 12-CV-128, in the United States District Court for the District of Columbia.