Breaking News: Federal Court Holds Texas Voter ID Law Violates Voting Rights Act [Now Updated with Analysis]

You can read the unanimous 56-page opinion by Judge Tatel at this link.

The court has put in a scheduling order to address at a later date whether section 5 of the Voting Rights Act is unconstitutional.

1. This is a careful, unanimous opinion from a three-judge court which rejects most of the social science evidence submitted by both sides on whether Texas’s voter id law imposes greater burdens on minority voters. Instead, the court bases its analysis on three basically uncontested facts: (1) Minority voters are at least proportionately as likely as white voters in Texas to lack the documents needed for Texas’s new id law (which the Court calls perhaps the most “stringent” in the nation; (2) the new i.d. law will put high burdens on poor people who lack id (many of whom would have to travel up to 200 or 250 miles at their own expense to get the i.d. as well as pay at least $22 for the documents needed to get the i.d.; and (3) minority voters in Texas are more likely to be poor.  Using this simple structure, the court concludes that Texas, which bears the burden of proof in a section 5 case, cannot prove its law won’t make the position of protected minorities worse off.  And the court suggests this was a problem of its own making: Texas could have made the i.d. law less onerous (as in Georgia, which the court suggests DOJ was probably right to preclear) and Texas could have done more to produce evidence supporting its side at trial, but it engaged in bad trial tactics.

2. Texas is likely to appeal this case to the Supreme Court, and I would expect to see an application for an emergency injunction allowing Texas to use its voter id law during the upcoming election.  If this happens, this will be a major question for the Roberts Court, and it would have to be decided in short order.  Given the closeness to the election, it is not clear to me that even if the Supreme Court disagrees on some of the analysis with the district court that it would grant such emergency relief.  This is a big unknown.

3. There is still the constitutional question to address: Texas argued that if section 5 bars Texas from putting an id law in place, Section 5 is unconstitutional.  The district court issued a scheduling order to address this question at a later date, but given the DC Circuit’s Shelby County case I cannot see how this district court does anything but conclude it is bound to say section 5 is constitutional [corrected] (unless and until the Supreme Court takes Shelby County and says otherwise). [UPDATE: Apparently there is some dispute as to whether the three judge court is bound by DC precedent.  Still, I would not expect the panel, especially with Judge Tatel, to reach a different result.]

4. The court was very careful to show that not all voter id laws are created equal, that states may have ample good reasons to impose voter id laws, and that such laws can be put in place in ways which do not discriminate against minority voters.  Not only did the court suggest that Georgia’s voter id law was probably ok; the analysis here could well be key in how the separate district court hearing the challenge to South Carolina’s voter id law will resolve that case. It is certainly possible that South Carolina’s law could be precleared, especially given some key concessions this week at trial.

5. The court does a very good job illustrating the problems with social science methods in trying to figure out just how many people lack voter ids.  It rejected evidence from both sides, and it does show just how hard it is to get a handle on the relationship between voter id and turnout.

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