Breaking and Analysis: Divided 5th Circuit Rejects Latest Challenge to Texas’s Voter ID Law, But Prospect for Further Litigation Remains

You can find a majority opinion by Judge Jones, concurring opinion by Judge Higginbotham, and dissenting opinion by Judge Graves in Veasey v. Abbott at this link.

In what I consider to be a fundamentally disingenuous analysis by 5th Circuit Judge Edith Jones, a divided 5th Circuit panel has not only held that Texas’s replacement voter id law (enacted in response to an earlier finding, upheld by the 5th Circuit that its original strict voter id law violated the Voting Rights Act) is legal. It also has essentially precluded the district court from putting Texas back under federal supervision for its voting rules based on a finding of intentional discrimination in voting on the basis of race. Judge Higginbotham’s concurrence makes nice noises about the “race or party” question I have been writing about for a long time, but in the end he does not appear to disagree with Judge Jones’s conclusion that the district court cannot put Texas back under preclearance based on an earlier finding of racially discriminatory intent. (Perhaps the plaintiffs can seek clarification on rehearing on this point, and get Judge Higgenbotham to open this back up.)

This ruling is likely to stand, because, despite the persuasiveness of Judge Graves’s dissent, the Fifth Circuit’s partisan balance has changed since the last go at this case, and an en banc process is likely to be unsuccessful, and the Supreme Court is unlikely to get involved either.

Now the details.

After many years of fighting Democrats in the state legislature, Republicans pushed through a very strict voter id law for voting, SB 14. A group of voting rights plaintiffs, with the support of the US DOJ, argued that the law violated both Section 2 of the Voting Rights Act and the Constitution. The district court found both a racially discriminatory effect under Section 2 as well as that the law was enacted with a racially discriminatory intent. That latter finding was important for two reasons: (1) it allowed the court not to defer on remedies, and it could throw out the entire law; and (2) the finding could serve as a predicate for the court, acting under Section 3 of the VRA, to put Texas back under preclearance for up to 10 years for some or all of the changes to its voting rules.

After a while, the case made it to the 5th Circuit sitting en banc, where a majority of the strongly divided court held that the trial court was right in finding a racially discriminatory effect, and another (somewhat overlapping) majority of the court held that the trial court relied on some improper evidence to figure out discriminatory intent, BUT there could well be enough permissible evidence in the record to support such a finding. Judge Jones dissented vociferously, believing there was no evidence of discriminatory effect or intent and she would have ended the case right there.

The 5th circuit remanded to the trial court. The Supreme Court refused to get involved, but Chief Justice Roberts signaled he would like to when the case was final.

While the case was pending, the district court implemented an order which softened Texas’s voter id law, including allow people to sign a statement indicating that they had a reasonable impediment to voting. Texas later enacted a new law, SB 5, which mostly (but not perfectly) tracked the interim remedy established by Texas, which in my view, while not perfect, was a great improvement on the old law.

The case went back to the trial court, and after the election of President Trump the U.S. DOJ essentially switched sides. Texas and the U.S. took the position that the enactment of SB 5 solved all the problems and mooted the case. The district court disagreed, and held that this did not cure either the problem of discriminatory effect or intent. It set a hearing on the question of putting Texas back under federal supervision. A motions panel of the 5th Circuit stopped the trial court’s action until the appeal could be settled.

Both Judge Jones in her majority opinion and Judge Graves in dissent agreed the case was not moot. Only Judge Higgenbotham said that it was. On the merits, Judge Jones said that SB 5 cured any voting rights violation, and that the trial court found no evidence the new law was passed with intentional discrimination. Accordingly, there would be no basis for putting Texas back under federal preclearance. She wrote: “Further, because SB 5 constitutes an effective remedy for the only deficiencies testified to in SB 14, and it essentially mirrors an agreed interim order for the same purpose, the State has acted promptly following this court’s mandate, and there is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c). See McCrory, 831 F.3d at 241 (declining to impose relief under Section 3 of the Voting Rights Act and noting ‘[s]uch remedies ‘[are] rarely used’. . . .’).”

It is here where Judge Jones was disingenuous. The trial court found, looking at only proper evidence allowed by the 5th Circuit’s earlier decision, that the original enactment of SB 14 was done with a racially discriminatory purpose. As Judge Graves argues in dissent, this should have been reviewed for clear error and there was no clear error. Thus, even if Texas’s enactment of SB5 later on was not done with racially discriminatory intent, SB 14 was, and that alone could be the basis for the imposition of preclearance. Judge Jones just ignores all that and throw out the right of plaintiffs in the first instance to seek Section 3 relief before the district court.

And Judge Higgenbotham in his concurrence seems to go along. He argues the whole case is moot, which my last paragraph shows it is definitely not on the precelarance question. The rest of his opinion notes the race or party problem (“The  difficulty lies in disentangling partisan advantage and racial purpose when a party controls the legislature and racial minorities are heavily invested in the opposite party.”) He then goes on to suggest, that passing election laws on pure partisan grounds could well raise a constitutional problem under strict scrutiny. (“Where, as here, the state cannot show that its hurried pursuit of a so recently arrived fear of voter fraud exists beyond the fantasy of political spin, its efforts can only be described in terms of race or the pursuit of political advantage. Either way, strict scrutiny is triggered—when the answer to the charge of racial purpose is a claim that the true purpose was partisan advantage, the state action fails for want of a legitimate purpose. This, because we have not a dilution but an outright denial of the right to vote.”) There’s a lot to like here, and Judge Higgenbotham cites my Harvard Law Review Forum piece making this point. But that doesn’t excuse what he’s done here.

Judge Graves makes excellent points in his lengthy dissent. But if this case goes en banc, it is a tough road ahead. Remember that not only has Judge Prado [corrected] left (picked off by Trump as an ambassador for potentially political reasons), there are now three deeply conservative judges now on that court (Ho, Willettt and now Duncan). It is a tough road indeed there, and at the Supreme Court. CJ Roberts was eager to get involved to help Texas. He’s likely not going to be eager to help voting rights plaintiffs.

[This post has been updated.]

 

 

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