Law & the Courts

Texas Wins Dogged Fight for Voter ID

Visitors wait in line to attend hearing arguments in Abbott vs. Perez, weighing a bid by Texas to revive Republican-drawn electoral districts for state legislative and U.S. congressional seats, April 24, 2018. (Yuri Gripas/Reuters)
An appeals court upholds a revised version of the state’s legislation.

Last week, the Fifth Circuit Court of Appeals gave a big boost to election-integrity efforts in Texas and throughout the nation. In a 2–1 opinion authored by Judge Edith Jones, the court upheld Texas’s revised voter-ID law, SB 5, against claims of racial discrimination.

The ruling was the latest development in a years-long struggle by Texas lawmakers. The battle began with SB 14, a 2011 law that was challenged for allegedly having a discriminatory impact on African-American and Latino voters. There was no evidence to support that claim. In fact, one of us (von Spakovsky) published a study showing that turnout in state elections went up after the law went into effect.

Nonetheless, in 2014, federal district-court judge Nelva Gonzales Ramos, an Obama appointee, ruled in favor of the challengers and enjoined enforcement of the law. She held that Texas had acted expressly to discriminate against minority voters. Interestingly, the challengers had been unable to produce a single voter who could not get the necessary ID or vote by absentee ballot.

Ramos based her conclusion on the idea that the only reason a legislature would pass a voter-ID law was to discriminate. She did not believe there was any rational reason to require an ID to vote. She went on to make the bizarre claim that the ID law was a “poll tax” barred by the Constitution, despite the state providing free IDs to its residents.

On appeal, the full Fifth Circuit rejected Ramos’s conclusion that Texas lawmakers had acted with intentional discrimination or implemented a poll tax, but concurred with her that the law had a “disparate impact” on racial minorities. The case was remanded, and Ramos was ordered to develop a remedy for the 2016 election.

That opinion prompted a powerful dissent by Judge Jones, who excoriated the court’s majority for “fan[ning] the flames of perniciously irresponsible racial name-calling.” Jones found it telling that “the multi-thousand page record yields not a trace, much less a legitimate inference, of racial bias by the Texas Legislature.”

As if taking that as a challenge, Judge Ramos issued a series of opinions the following year. First, in what Jones characterized as a largely cut-and-paste opinion, Ramos reiterated her earlier finding that Texas had acted discriminatorily. Then, after the legislature passed SB 5 specifically to address the Fifth Circuit’s concerns, she enjoined the state from enforcing any photo-ID requirement.

SB 5 allows voters without ID to claim they faced seven different impediments to getting one. So long as they claim an impediment and sign the necessary paperwork, the law permits them to cast a ballot. The list of impediments was drawn almost exactly from the interim remedy imposed by Ramos herself for use in the 2016 election, and includes things like lack of transportation and work–schedule conflicts.

Nevertheless, Ramos held that requiring voters to sign a form under penalty of perjury, combined with the elimination of a broad “other” category —which, officials noted, had “in more than a dozen cases during the 2016 election” allowed voters to “flout[] the law’s purpose” — would have a “chilling” effect on participation.

Jones rightly dismissed this as “wholly speculative,” pointing out that Ramos’s interim remedy for the 2016 election, which SB 5 largely codified, was “in place for the full panoply of elections in a Presidential year” and that no evidence had been produced that it had resulted in a constitutional harm to any voter. Indeed, Jones noted that the 27 original witnesses in the case were all covered by the seven exemption categories in the revised legislation.

According to Jones, Ramos “relied on incorrect presumptions of taint and invalidity . . . presuming, without proof, that any invidious intent behind SB 14 necessarily carried over to and fatally infected SB 5.”

It was on this flimsy legal basis that Ramos supported her decision to jettison the entire Texas voter-ID law. This judgment was made despite the fact that “all of the evidence supports that SB 5 was designed to remedy every defect” in the earlier law and “to supply indigent voter protections” recommended by the Fifth Circuit.

Judge Jones has delivered a victory not only for the integrity of the ballot box, but for the rule of law itself.

That led Jones to two inescapable conclusions: that there was “no legal or factual basis to invalidate” the Texas voter-ID law, and that Ramos’s “order constitutes an abuse of discretion.”

It’d hard to disagree with Judge Jones’s reasoning here. Texas made, by all rights, a good-faith attempt to rectify problems with its election laws while preserving an essential, commonsense tool for fighting fraudulent votes. The solution it settled on was largely based on Ramos’s own 2016 remedy, and it offers a broader set of alternatives “to producing compliant photo voter ID” than the Indiana statute the Supreme Court upheld as constitutional in 2008. Its “reasonable impediment” exemption is also virtually identical to South Carolina’s voter-ID law. South Carolina’s law was upheld by a three-judge federal court in the District of Columbia in 2012 and has caused no problems.

Judge Ramos may have a personal bias against voter-ID laws, but as a federal judge she is not entitled to substitute her own policy preferences for those of elected lawmakers. As Judge Jones reminded us, “Courts must defer to [the government’s proposed remedy] unless the newly enacted plan is itself unconstitutional or violates federal law.”

Neither condition applies here, and Jones rightly reversed Ramos’s decision. Judge Jones has delivered a victory not only for the integrity of the ballot box, but for the rule of law itself.

— Jason Snead is a senior policy analyst, and Hans A. von Spakovsky is a senior legal fellow, at the Heritage Foundation. Von Spakovsky is a co-author of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department.


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