By Leland Ware
On July 20, 2016, the U. S. Court of Appeals for the Fifth Circuit delivered a strong rebuke to what is widely viewed as the nation’s strictest voter ID law. The court heard the case, en banc, a rarely invoked process in which a full appeals court (as opposed to a panel of three judges) convenes to decide a case. It was a stunning decision by one of the most conservative federal appellate courts in the nation.
In 2011 Texas enacted Senate Bill 14 (“SB 14”), which required individuals to present one of several forms of photo identification to vote. Texas implemented SB 14 by requiring voters to present: (1) a Texas driver’s license or personal identification card issued by the Department of Public Safety (“DPS”); (2) a U.S. military identification card with a photograph; (3) a U.S. citizenship certificate with a photo; (4) a U.S. passport: (5) a license to carry a concealed handgun issued by DPS: or (6) an Election Identification Certificate (“EIC”) issued by DPS.
To secure an EIC Texas residents are required to present either: (A) one form of primary ID, (B) two forms of secondary ID, or (C) one form of secondary ID and two pieces of supporting identification. This meant that any application for an EIC required either a Texas driver’s license or personal identification card or one of the following documents, accompanied by two forms of supporting identification: (1) an original or certified copy of a birth certificate from the appropriate state agency; (2) an original or certified copy of a United States Department of State Certification of Birth for a U.S. citizen born abroad; (3) U.S. citizenship or naturalization papers without a photo; or (4) an original or certified copy of a court order containing the person’s name and date of birth and indicating an official change of name and/or gender.
A civil Action was filed challenging the constitutionality of the Texas law. The plaintiffs also alleged that SB 14 violates the Voting Rights Act. After the conclusion of a trial, the district court held that SB 14 imposed an unconstitutional burden on the right to vote under the First and Fourteenth Amendments, had an discriminatory effect on Hispanics and African Americans under Section 2 of the Voting Rights Act, and was enacted with a discriminatory purpose in violation of the Fourteenth and Fifteenth Amendments and Section 2. The trial court also held that SB 14 created a poll tax that violated the Fourteenth and Twenty-Fourth Amendments.
Texas appealed that decision and a panel of the Court of Appeals for the Fifth Circuit affirmed in part, vacated in part, and remanded the case for further findings. Texas responded with a petition to rehear the case en banc. The Court of Appeals granted the request. After the hearing, the Fifth Circuit affirmed the trial court’s decision on the discriminatory effect issue as a violation of Section 2 of the Voting Rights Act. On the discriminatory intent question, the Fifth Circuit found that some of the trial court’s findings were flawed, but it also stated the record contained evidence that could support a finding of discriminatory intent. As a consequence, the Court remanded the discriminatory intent issue to the district court to reconsider its decision.
The plaintiffs also argued that SB 14 unconstitutionally burdened their right to vote in violation of the First and Fourteenth Amendments. The Fifth Circuit declined to decide this question relying on the principle that courts should not decide a constitutional question if there is some other ground on which to decide of the case.
To avoid any disruption of the upcoming election, the Fifth Circuit directed the district court to fashion interim redress for the discriminatory effect violation in the months leading up to the November 2016 general election.
Veasey v. Abbott is a major victory that gives civil rights advocates a crucial remedy in advance of the 2016 election. The new wave of voter ID laws harken back to the Reconstruction era when African Americans in the South were completely disenfranchised. Six of the 16 states that enacted voter ID laws since 2010 have a documented history of discriminating against minority voters. All but one of those states’ laws were put in place after the Supreme Court overturned a key provision of the Voting Rights Act that required them to seek approval from the Justice Department for any voting law changes.
All of the recent Voter ID laws were sponsored by Republicans and passed overwhelmingly by Republican dominated legislatures. A conservative U.S. circuit judge, Richard Posner, called the expressed concern about voter fraud “a mere fig leaf” and the laws instead “appear to be aimed at limiting voting by minorities, particularly blacks.” Posner also stated “there is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud…and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.” This is clearly the case with voter ID laws. The Republican lawmakers’ motives are the same as those of the white supremacist legislators during the Reconstruction era--disenfranchising minority voters.