Tuesday, August 29, 2017

Court Again Strikes Down Texas Voter I-D Law

Veasey v. Abbott: Texas Voter ID[1]

On August 23, 2017, a federal court struck down a Texas voter ID law that intentionally discriminated against Black and Latino voters. The dispute began when Texas enacted a voter identification law, SB 14, in 2011. In 2014, a federal trial court ruled that SB 14 violated the Voting Rights Act and the U.S. Constitution by disproportionately burdening minorities’ right to vote. 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 documents listed below, accompanied by two forms of supporting identification.

A civil action was filed and the judge held that the law disproportionately burdened minorities’ right to vote and was enacted with the purpose of disenfranchising minorities. The decision was appealed and in 2015 a panel of judges for the 5th U.S. Circuit Court of Appeals agreed that SB 14 was unlawful. Texas appealed, but in 2016, the full 5th Circuit, sitting en banc, ruled that the measure unlawfully imposed a disproportionate burden on minority voters. The appeals court sent the case back to trial court to reevaluate whether Texas passed the law with an intent to discriminate.

In the interim Texas legislators enacted SB 5 as a solution to the problems with the original law. The new law allows Texans without a photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID. Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification. Those found to have lied about not possessing the proper photo ID could be charged with a state jail felony, which carries a penalty of 180 days to two years in jail. Under the new law, the permissible IDs remained the same as the earlier law.

Minority groups suing the state asked the court to enjoin the new law, saying it was still discriminatory because lawmakers did not expand the list of acceptable IDs. On August 23rd the trial court agreed, saying "SB 5 perpetuates the selection of types of ID most likely to be possessed by Anglo voters and, disproportionately, not possessed by Hispanics and African-Americans." The judge also wrote “SB 5 does not meaningfully expand the types of photo IDs that can qualify. Even though the Court was clearly critical of Texas having the most restrictive list in the country,” the judge concluded, "Not one of the discriminatory features of [the old law] is fully ameliorated by the terms of SB 5…SB 5's process for voters without proper ID trades one obstacle to voting with another—replacing the lack of qualified photo ID with an overreaching affidavit threatening severe penalties for perjury." This decision was the eighth finding of intentional discrimination by courts against Texas since 2011.

Voter identification laws are a part of an ongoing strategy to deprive citizens of their right to vote and reduce participation in elections. Many Americans do not have one of the forms of identification that states require. These voters are disproportionately low-income, racial and ethnic minorities. By instituting strict voter ID laws, states can alter the electorate and shift outcomes toward conservatives. These strict ID laws are passed almost exclusively by Republican dominated legislatures.

[1] Leland Ware, Louis L. Redding Professor of Law & Public Policy, University of Delaware

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