Diary

The Fate of the Texas Voter ID Law

On April 1oth, in response to referral by the 5th Circuit Court of Appeals in New Orleans, federal District Court Judge Nelva Gonzalez Ramos again struck down parts of SB-14- the Texas voter ID law that was signed into law by Rick Perry in 2011.  It did not go into effect until 2013, but faced lawsuits almost before Perry’s ink was dry.

As the case was being referred back to the District Court since the Appeals Court determined that perhaps Ramos had relied too heavily upon Texas’ past election law violations, the matter was petitioned to the United States Supreme Court.  In January of 2017, the Supreme Court rejected the petition most likely because the matter was sent back to the District Court for reconsideration.  In other words, they likely believed the case was not ripe enough for Supreme Court review.

During the appeal to the 5th Circuit, the Justice Department under Obama joined the side of the plaintiffs regarding the discriminatory intent aspect of the law.  A law can sometimes withstand judicial scrutiny if there is a discriminatory effect without intent, but the original ruling determined not only effect, but also intent.  As the case was winding back to the District Court, the Justice Department under Jeff Sessions removed itself from the intent aspect, but the Civil Rights Division is still involved with the effect aspect of the case and this is pretty important.

The law was passed to address alleged voter fraud in Texas.  The first question is whether voter fraud existed to such an extent that the legislature was forced to take action and pass SB-14.  According to the legislative record which the District Court relied upon, there were only two convictions for voter fraud in the ten year period leading up to passage of the law of over 20 million votes cast.  However, some of the problem is in the definition of “voter fraud” which can encompass many issues.  For example, it can include voting twice or in multiple areas, impersonating a voter, being ineligible to vote OR it can include intimidation at a polling place, violations committed by third party actors especially with absentee ballots or publishing misinformation to deceive voters.

From 2002 to 2012, the Texas Attorney General’s office received 616 allegations of a voter law violations and recorded 78 prosecutions.  According to one study, 46 of the 78 prosecutions resulted in guilty verdicts, pleas or other such legal niceties.  This study determined that 18 of the prosecutions involved individual voters: 12 cases of ineligible voters casting ballots, 5 cases of impersonation, and one case of voting more than once.  Although not a large number, it is nevertheless more than the two offered in the legislative record.  Another study from Arizona shows that there were 2,068 allegations nationally since 2002 and that 104 occurred in Texas.

A decent case can be made that a single instance of voter fraud undermines faith in the electoral system (perhaps more than alleged Russian misinformation and propaganda).  Further, with most of the statistics cited that tend to show voter fraud being a tiny problem when compared to the number of votes cast, one has to question how many instances go undetected or are not prosecuted or even investigated?

In order for the Texas law to withstand scrutiny, a Supreme Court decision- the Arlington Heights case- controls.  To determine discriminatory intent, six factors are considered and it helps to see how the Texas legislature either met or failed these standards.

First, there must be disparate impact.  Here, even the 5th Circuit Court of Appeals, the Justice Department under Obama and Trump, and the District Court are all in agreement that there is disparate impact.

The second is whether there is a clear pattern unexplainable on grounds other than race which emerges from the legislation even though it may be facially neutral.  Here the District Court relied on the legislative history of the law.  Several amendments were offered to potentially lessen the possible discriminatory effects.  They were all rejected.  In other words, where voter ID laws have been upheld, they have generally been more lenient than the Texas law.  Because these lenient measures were not adopted, Ramos ruled against the state.

The third is the history of the legislation.  The Appeals Court affirmed the original Ramos decision as being correct so there was no need to re-litigate the issue on remand.  Fourth is whether the law deviated from normal legislative procedures and here Texas got itself into trouble.  The Texas legislature has a longstanding policy of NOT passing such bills as part of a fiscal emergency package.  At the time, Texas was facing a budget shortfall that required emergency action.  This law was passed as part of that whole legislative effort despite the fact that the evidence showed passage would ADD $2 million to the original budget shortfall.  Furthermore, the legislation was rushed through committees, debate was limited and amendments summarily discarded.  All these things added up to, in the mind of the Court, the belief that Texas was up to some shenanigans.

The fifth is whether the law lines up with policy justifications.  Again, the legislative record noted only 2 voter fraud cases that would have been prevented by the law in the previous decade of over 20 million votes cast.  This extremely low number indicated to the courts that “emergency consideration” deviated from the norm as that term was previously used.

Finally, recent statements by decision-makers are taken into account.  Here- and only here- the District Court found scant evidence of any legislator in Texas even remotely or tangentially expressing a discriminatory intent.

Hence, the question going forward is whether Texas now wants to pursue this case all the way to the top and to the Supreme Court.  Proving intent outright is a difficult process; a judge cannot get into the minds of individual legislators.  Nor will anyone state outright they intended to discriminate against any bloc of voter.  In fact, Judge Ramos notes the difficulty of divining motives in her decision.  Instead, she has to rely on the Arlington standards as articulated by the Supreme Court and consider all what amounts to circumstantial evidence to reach a decision.

This writer doubts that the Supreme Court will accept this case upon a request by the state of Texas.  Taken together, the legislative history is rather shaky and the case has now been litigated twice at the District Court level and once at the Appeals Court level.  The main criticism of the Appeals Court was the belief that Ramos relied too heavily upon the state’s past transgressions.  However, upon remand the evidence was quite recent (since 2002).

Perhaps a better tactic would be to concede defeat and reconsider another voter ID law subjecting it to the normal legislative rigor required of all legislation in Texas and do not do it as an emergency effort.  There was way too much circumstantial evidence for the courts to ignore especially since disparate impact was proven and even the Justice Department under Jeff Sessions recognizes that fact.

In the interim, Texas has placed itself in jeopardy of falling back under federal supervision under the Voting Rights Act.  What was likely passed with the best of intentions sometimes ends up on the wrong side of the law as written.  Voter ID laws are under attack by the Democratic Party and the Left in America and they have achieved some palpable victories of late.  In order to reverse that trend, it is important that legislatures get it right to prevail against the inevitable legal attacks from the Left.  Texas may have gone a little overboard in their zeal.