Some Clarification on What DOJ Is and Isn’t Doing in the Texas Voter ID Case

Before tomorrow’s hearing, the United States Department of Justice will ask a federal district court to voluntarily dismiss its claim that in enacting its strict voter identification law, Texas acted with a racially discriminatory purpose. There is nothing in the upcoming motion about DOJ’s claim that Texas’s law had racially discriminatory effect in violation of Section 2 of the Voting Rights Act. Thus, despite some press releases from groups to the contrary, DOJ has not (at least not yet) abandoned its suit against Texas’s law.

So what does this new motion mean? Even if granted, this motion by itself will have little impact on the case itself, as I will explain, but is indicative of a pullback of the DOJ in this case and a sign of possible things to come — with DOJ either staying out of these cases, or coming in on the side of states that have passed strict voting laws (a reversal of practice under the Obama DOJ).

The rest of this post gives some wonky details.

There are two primary claims in this case: that Texas passed its law with a racially discriminatory intent and that it passed it with a racially discriminatory effect. The trial court initially found that Texas acted with both discriminatory effect. Eventually the entire 5th Circuit, sitting en banc, agreed on the effects question, but held that the trial court used the wrong evidence and standard to judge discriminatory intent. It remanded the case for a new hearing on that question, which is taking place tomorrow.

Here’s why this matters. The Fifth Circuit said that a discriminatory effects finding would be a reason to soften Texas’s law (such as by allowing those who lack ID and cannot easily get it to put in an affidavit swearing to identity), but not to throw it out entirely. But a finding of discriminatory intent would allow throwing the law out entirely. It could also provide a predicate, under Section 3 of the Act, to put Texas back under federal supervision for up to 10 years.  So a finding of intent is a big deal.

BUT: in this case there is both the DOJ and private voting rights plaintiffs pursuing the case. So even if the trial court lets DOJ drop out, the private plaintiffs can still pursue the same claims. All this does is not put DOJ in the awkward position of putting forward a theory that AG Sessions likely does not believe. It will not have any effect on the case (except to the extent that the DOJ’s position is persuasive). And it leaves DOJ in the case for the trial court to later fashion a permanent remedy for the discriminatory effects finding (should the court find no discriminatory intent, or have such a finding reversed by the Fifth Circuit again).

STILL: This development is notable. It means DOJ is pulling back from aggressive defense of voting rights. And I predict, in cases like Texas and North Carolina, eventually DOJ will be on the other side of this issue, supporting the right of states to make it harder to register and vote (purportedly on anti-fraud or public confidence grounds).

[This post has been updated.]

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