I have written this piece for Slate. it begins:
This week’s decision by the U.S. Court of Appeals for the 5th Circuit—holding that Texas’ strict voter identification law violates the Voting Rights Act—is good news for those who believe such laws are discriminatory and do nothing to prevent voter fraud. But there is potentially much better news buried within the eight separate opinions of the 203-page ruling, which comes from one of the most conservative courts in the nation. There you’ll find a road map for returning Texas’ voting rules to the supervision of the federal government. That’s something that states like Texas—which has passed laws that handicap a portion of its voting-age population—have proved they still need.’
Another snippet:
The appeals court divided badly in reviewing the trial court’s finding of racially discriminatory intent. Imagine that the trial court found bad intent from two baskets of evidence, Basket A and Basket B. Counting noses, a majority of 5th Circuit judges believed that the trial court’s analysis went too far in inferring discriminatory intent in considering what was in Basket A, such as statements by the law’s opponents in the state Legislature as to the intent of the legislators who passed the bills. But, again counting noses, a different majority of 5th Circuit judges believes that there is enough evidence in Basket B from which the trial court could indeed infer that Texas passed its law to discriminate against Texans who are Latino or black. It sent the case back for the trial court to reconsider the question looking just at Basket B, and a finding of racially discriminatory intent from the trial judge again seems likely.
The dissenters suggested that at worst the evidence showed an intention by the Republican-dominated state Legislature to discriminate against Democrats, not against blacks or Latinos. A majority of judges, noting an overlap among racial and partisan groups in Texas, didn’t buy it. In a place like Texas, it makes no sense to separate race and party. As the majority explained, “Intentions to achieve partisan gain and to racially discriminate are not mutually exclusive.” And as one of the judges who believed that evidence from both Baskets A and B proved Texas engaged in racial discrimination put it, if Republicans in the Texas Legislature, out of partisan motives, selected a course of action “at least in part because of, and not merely in spite of, its adverse effects on an identifiable group, that is enough” to show racial discrimination.
The upshot is that the trial court on remand could well find that Texas passed its law with racially discriminatory intent. And if that finding gets upheld on appeal, then the trial court is free to require future changes in Texas voting rules to get Justice Department or judicial approval first. Under these preclearance rules, Texas would again have the burden of demonstrating that each proposed voting change would not make protected minority voters worse off.