The 5th Circuit’s Concurrence

Rick just quoted from Judge Costa’s concurrence in the 5th Circuit panel’s order — and I’d like to highlight one part of that concurrence.  Judge Costa says, citing cases from Ohio and North Carolina, that “in two recent decisions, [the Supreme Court] stayed injunctions issued based on findings that changes in an election law were discriminatory.”

That’s true, but those cases involved different findings of discrimination than those at issue in Texas.  In this context, “discrimination” is an ambiguous word.  It could mean that a law simply has a disparate statistical impact — that it ends up affecting people of some races more than others.  It could mean that a law with a disparate impact was generated in a context with danger signs of perpetrating or perpetuating intentional discrimination, either directly in the voting process or linked to the voting process.  Or it could mean that a law was intended to hurt voters because of their race: that it was put in place at least in part because of the racial impact it would have.

Federal election law doesn’t generally address policies in the first category.  The Voting Rights Act reaches policies in the second category.  But the third category is particularly pernicious, and prohibited by the constitution itself.  According to the trial court in Texas, that third category is responsible for the Texas ID law.  The courts in Ohio and North Carolina found only the lesser threshold of discrimination in my “category two.”  That doesn’t make such discrimination permissible.  But the Texas findings, right or wrong, are of another magnitude … and I think it’s a mistake to conflate them all as equally “discriminatory.”

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