One day before the 50th anniversary of the Voting Rights Act, one of the most conservative federal appeals courts in the country wielded that law to strike down a Texas voter suppression law. A unanimous panel of the United States Court of Appeals for the Fifth Circuit, in an opinion written by a George W. Bush appointee, held that Texas’s voter ID law violates the Voting Rights Act and must, at the very least, be significantly weakened. Though the court did not accept every argument raised against the state’s voter ID law, and its opinion does not go nearly as far as a trial judge’s decision which also struck down this law, it is a significant blow to the state’s efforts to make voting more difficult.
Voter ID laws are a common obstacle raised, mostly by right-leaning lawmakers, in front of citizens seeking to exercise their right to vote. Though stringent voter ID laws, which require voters to show a photo ID before they can cast a ballot, are often justified as a shield against voter fraud, the kind of fraud these laws target barely exists. A Wisconsin study, for example, found just seven cases of fraud out of 3 million votes cast during the 2004 election — and none of these seven cases were the kind of in-person voter fraud that is prevented by a voter ID law. Similarly an investigation by former Iowa Secretary of State Matt Schultz (R) found exactly zero cases of in-person voter fraud over the course of several elections.
What voter ID laws do accomplish, however, is they disproportionately disenfranchise groups that tend to prefer Democratic candidates over Republicans. As Judge Catharina Haynes explained in her opinion on behalf of the Fifth Circuit, one analysis determined that “Hispanic registered voters and Black registered voters were respectively 195% and 305% more likely than their Anglo peers to lack” a voter ID in the state of Texas. Indeed, even Texas’s own numbers confirmed that voter ID laws disproportionately impact racial minorities. Their own expert “found that 4% of eligible White voters lacked SB 14 ID, compared to 5.3% of eligible Black voters and 6.9% of eligible Hispanic voters.”
Similarly, low-income voters are much less likely to have ID then their wealthier counterparts. The district court in this case “credited expert testimony that 21.4% of eligible voters earning less than $20,000 per year lack SB 14 ID, compared to only 2.6% of voters earning between $100,000 and $150,000 per year.”
The racial disparities impacting voter eligibility, when combined with other conditions in Texas that tend to produce discrimination against African Americans and Latinos, were sufficient reason for the court to hold that Texas’s voter ID law must be struck down. Yet, while this is certainly a victory for the voters and institutions that challenged this voter suppression law, it is not a total victory.
For one thing, the Fifth Circuit determined that the appropriate remedy in this case may not be a broad injunction striking down the entire law. Rather, if the evidence in this case does not show that Texas acted with a discriminatory intent when it enacted this law, an injunction “reinstating voter registration cards as documents that qualify as acceptable identification under the Texas Election Code” may be appropriate.
More importantly, Haynes’s opinion vacated the trial court’s finding that state lawmakers did, indeed, act with racial discrimination in mind when they enacted this law. Pointing to several pieces of evidence that the district court relied upon which the Fifth Circuit found less compelling, Haynes’s opinion instructs the trial judge to conduct “a reexamination of the probative evidence underlying Plaintiffs’ discriminatory purpose claims weighed against the contrary evidence.” That does not preclude the trial court from determining, once again, that state lawmakers had racial discrimination on their minds when they enacted this law, but it does make it more difficult for that court to reach such a determination.
Should the courts ultimately conclude that Texas did act with a discriminatory purpose, that could have profound implications for the state moving forward. Among other things, it could lead to a court order reinstating the requirement that Texas “pre-clear” all of its voting laws with officials in Washington DC before those laws can take effect — a requirement that was deactivated when five conservative members of the Supreme Court struck down part of the Voting Rights Act in 2013.
Ultimately, however, any decision calling Texas’s voter ID law into question must survive two significant obstacles. The first is that the Fifth Circuit is an especially conservative court, and it is likely that Texas will ask a panel of all 15 of the court’s active judges to reconsider this case. The fact that Haynes agreed that the law is problematic should help supporters of voting rights if Texas seeks full court review, but it is no guarantee that a majority of the Fifth Circuit will agree with her.
And, even if Haynes’s conclusion survives contact with the full Fifth Circuit, this case is reasonably likely to be reviewed by a Supreme Court that’s shown skepticism of voting rights claims generally and of the Voting Rights Act in particular.