Acting one day before the fiftieth anniversary of the nation’s most important voting rights law, a federal appeals court on Wednesday ruled that Texas will be barred from enforcing at least part of its four-year-old law that requires a photo ID before a voter can go to the polls.
The ruling by the U.S. Court of Appeals for the Fifth Circuit, however, left a good deal of doubt about how much of the Texas law will actually be nullified after a new round of analysis that it ordered a federal trial judge to do.
The Texas case was one of several new challenges against new laws in a variety of states to cut back on voting rights by imposing new photo ID requirements and other restrictions. The challenges rely upon the 1965 Voting Rights Act. Ultimately, the Texas case or one of the others is likely to make its way to the Supreme Court. The Supreme Court has encountered the Texas voter ID law once before; last October the Justices allowed the law to go into effect, over a strong dissent that Justice Ruth Bader Ginsburg stayed up all night to write for herself and two colleagues.
Although the new ruling by the Fifth Circuit cheered defenders of voting rights for minorities and the poor, especially because it marked the first time that a federal appeals court had ruled against a voter ID law and also because it struck a significant blow against the Texas law’s enforcement, the fifty-one-page decision by a panel of three judges rejected — at least temporarily — the strongest point made by the challengers, and it left uncertain whether Texas would face a future obligation to get official permission before it changed any of its election or voting laws.
The decision was quite complex, but one of the most significant new questions that will now follow the case as it returns to a trial courtroom in Corpus Christi is whether the Texas legislature will again be found to have passed the 2011 voter ID law with the specific purpose of discriminating against blacks, Latinos, and poor residents of the state. U.S. District Judge Nelva Gonzalez Ramos had struck down the entire law, finding that its purpose was explicitly discriminatory.
The Fifth Circuit panel overturned her on that point, and told her to reconsider. But, when she does so, the panel made clear, she will not be able to rely upon perhaps a considerable amount of evidence that the challengers had offered to prove that bias was intended by the legislature. The ruling left open the possibility that she could again rule that the law was intended to discriminate, but that part of its ruling made quite clear that that would be a further reach for the judge. For example, the Fifth Circuit essentially barred her from basing a new discriminatory intent on discrimination that occurred in Texas years ago against racial minorities, in voting and otherwise. Any such evidence, to be considered, must be more recent, it suggested.
Without a finding of such biased intent, the judge would have no authority to order Texas in the future to seek official federal approval in Washington, D.C., before it could put into effect any new election laws, of any kind. Texas used to be under that kind of “pre-clearance” regime, but the Supreme Court ended that requirement two years ago. Another section of the 1965 Voting Rights Act would permit a restoration of such a regime for a specific state, but only if it had been found to have intentionally discriminated in adopting an election law.
The victory that the challengers did win from the Fifth Circuit panel was that the practical effect of the photo ID law was that it made it harder for minorities and for the poor to obtain the necessary documents with photos to prove their identity. Such a “discriminatory effect” is outlawed by Section 2 of the Voting Rights Act, and it can be proved without showing a deliberate intent to discriminate.
The ruling by the panel on Wednesday had several key parts. Here, in summary, is what it ruled:
First, the 2011 photo ID requirement is illegal under Section 2, because of the negative impact it has on the voting opportunities of minorities and the poor.
Second, Judge Ramos must now reopen the case in her Corpus Christi court, and fashion a specific legal remedy for that violation.
Third, the panel stressed, however, that the judge should not issue a remedy order that is broader than the need to remedy the specific violation. It suggested several ways that such an order might be written that would leave Texas free to continue to enforce some form of photo identification requirement. The panel stressed that the case probably would not justify a new order barring enforcement of every part of the law as a way to cure the Section 2 violation. The judge must take into account whether the legislature did have some valid policy reasons for wanting to impose new identification rules.
Fourth, the Fifth Circuit rejected her conclusion that the legislature had passed the law with a specific discriminatory purpose. However, it stressed, the judge could make such a finding again, after a new review of the evidence — although it excluded some proof that Judge Ramos had accepted, finding it unreliable as proof of illegal intent, including Texas’s history some years ago in adopting discriminatory laws.
Fifth, if the judge does make a new finding of discriminatory intent, then she would be obliged to issue a broad injunction to prohibit enforcement of the law as written, the court stressed. In that event, she would not have to reconsider a remedy for the violation of Section 2 that both she and the Fifth Circuit had found to exist.
Sixth, the panel overturned Judge Ramos’s separate ruling that the photo ID law, because it imposed some cost on persons seeking to obtain photo IDs to satisfy the law, was a form of an unconstitutional poll tax. The photo ID law, the panel said, simply did not fit that definition. Part of the judges’ reasoning was that, since this case began, the Texas legislature has removed some of the fees that previously were charged for obtaining a birth certificate to support a photo ID request.
Finally, the Fifth Circuit, having found a violation of Section 2 on the discriminatory impact point, said it was unnecessary to rule on the challengers’ claim that the photo ID law violated the Constitution’s Fourteenth and Fifteenth Amendments.
State officials in Texas now have two options: to seek a new review by the full Fifth Circuit, which would set aside the panel ruling, or to go directly to the Supreme Court as the next step. If en banc review were allowed, the state could go on to the Supreme Court after that is completed.
The ruling was written by Circuit Judge Catharina Haynes and was supported by Chief Circuit Judge Carl E. Stewart and a federal district judge, Judge Nannette Jolivette Brown; Judge Brown normally sits on a trial court in New Orleans, but she was temporarily assigned to take part in this specific Fifth Circuit case.
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