By Leland Ware
In 2005, the U.S. Census Bureau announced that Texas had become a majority-minority state. In 2010 Texas legislators enacted a law that disenfranchised an untold number of Latinos and African American voters. A civil action was filed challenging the law under the U.S. Constitution and the Voting Rights Act. The district court ruled that the law had a disparate impact and was enacted with a discriminatory intent. Texas appealed and a panel of the Court of Appeals affirmed in part, vacated in part, and remanded the case for further findings.
After a rehearing en banc the Fifth Circuit affirmed the trial court’s decision on the discriminatory effect issue and remanded the discriminatory intent issue for reconsideration by the district court. In January of 2017, the Supreme Court denied Texas’ petition for a writ of certiorari but left open the possibility of an appeal at a later time. On April 10, 2017, the trial court affirmed its earlier ruling that the legislature acted with a discriminatory intent when it enacted a voter ID law.
Veasey v. Abbott was prompted by the passage of Senate Bill 14 (“SB 14”). The barriers to voting this law erected were enormous. Voters were required to present one of the following: a Texas driver’s license or personal identification card issued by the Department of Public Safety (“DPS”); a U.S. military identification card with a photograph; a U.S. citizenship certificate with a photo; a U.S. passport; a license to carry a concealed handgun issued by DPS; or an Election Identification Certificate (“EIC”) issued by DPS.
To obtain an EIC Texas residents were required to present either: one form of primary ID, two forms of secondary ID, or 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.
The trial court’s April 10 decision affirmed its previous finding that the legislature’s actions were “unexplainable on grounds other than race.” Proponents of SB 14 were aware of the potentially disproportionate effect of the law on minorities, but they passed the bill without adopting a number of proposed measures that might have reduced the adverse impact. Supporters of the ID law claimed it was needed remedy for voter fraud. This was a specious rationale. The evidence showed in person voting resulted in only two convictions for fraud out of 20 million votes cast in the decade leading up to SB 14’s passage.
Voter ID laws are part of a longstanding Republican effort to disenfranchise Black and Latino voters. The authors of a recent study concluded “[b]y instituting strict voter ID laws, states can alter the electorate and shift outcomes toward those on the right. Where these laws are enacted, the influence of Democrats and liberals wanes and the power of Republicans grows. Unsurprisingly, these strict ID laws are passed almost exclusively by Republican legislatures.”
Racial gerrymandering, restrictive voter ID laws and similar measures are part and parcel of Republican efforts to suppress the African American and Latino vote. This and other cases show that Supreme Court was wrong when it decided in Shelby v. Holder pre-clearance was no longer needed. Texas’ persistent and egregious conduct justifies the imposition of a requirement to pre-clear any changes in its voting procedures before they are put into effect.