It is not clear what internal deliberations were taking place at the 5th Circuit which took the Court more than 5 months to issue this order, but the full 5th Circuit will consider Veasey v. Abbott en banc by the full court. Veasey was significant because this was a case where the court gave a narrow but real victory to voter id plaintiffs in finding a Voting Rights Act Section 2 violation. The stakes are especially high because this is a case which could divide 4-4 before the current Supreme Court, meaning what the entire 5th circuit does may be the final word on Texas’s law.
Given the makeup of the 5th Circuit, as well as the panel members in the original decision, it is not clear how the panel will vote in this case, but if I were plaintiffs I would not be too happy with this order.
There is also the issue of timing—the Fifth Circuit will rule, and who knows how close this will be to the election, and if the Court will let the voter id law be in effect for this election. One can imagine judges on the 5th Circuit who want Texas to use the voter id law in this election to drag their feet long enough to assure a decision does not come until after the election.
Here is my analysis of the earlier panel decision:
A unanimous panel of the United States Court of Appeals for the Fifth Circuit has issued an opinionwhich is a great (but not complete) victory for those challenging Texas’s strict voter id law. The court affirms that the law violates Section 2 of the Voting Rights Act, but rejects the claim of discriminatory purpose and that the law constitutes a poll tax. The court remands for more findings on discriminatory purpose and for a decision on the remedy to the Section 2 violation. That remedy could allow Texas to keep enforcing its law for most people, so long as it gives ways to vote for those who face burdens under the law.
This is a narrow but important victory coming on the eve of the 50th anniversary of the passage of the Voting Rights Act.
As I noted when this panel was drawn, this is a relatively liberal panel in the 5th Circuit. [Note: the original version of this post referred to the panel as the “most liberal” and upon hearing from a lot of folks who follow the Fifth Circuit more than I do, this is incorrect.]
It is quite possible that Texas will try to take this case en banc to the full 5th Circuit, or perhaps to the Supreme Court. It is also possible that Texas would let this play out in another round at the district court and then appeal, but that seems less likely.
This also strikes me as an opinion written as narrowly as possible to still give a victory to the plaintiffs. (Perhaps that was the price of a unanimous opinion?) Winning on a Section 2 claim, even given the narrow remedial scope (more on that below) is still a significant victory for Voting Rights plaintiffs and the Department of Justice. We will see if it holds.
Here is some more detailed analysis of the case:
1. Discriminatory purpose. In a key loss for plaintiffs, the 5th Circuit remanded the question of racially discriminatory purpose to the trial court, under a standard that will likely be very hard to meet. Discriminatory purpose matters for a really important reason: not only will lead to a finding of the law’s unconstitutionality and violation of section 2 of the Voting Rights Act, it can also provide the basis (under Section 3 of the Act) for the court to order Texas “bailed-in” for federal oversight (“preclearance”) for up to 10 years. The 5th Circuit started its purpose analysis by noting: “We recognize the charged nature of accusations of racism, particularly against a legislative body, but we also recognize the sad truth that racism continues to exist in our modern American society despite years of laws designed to eradicate it.” It said that the trial court erred in finding discriminatory purpose based upon (1) old evidence of Texas’s official racial discrimination in voting; (2) statements from opponents of the law about the purpose of the majority passing it; and (3) post-enactment statements, again mostly by opponents of the law. It said the trial court needs to find stronger evidence of contemporaneous statements and actions of the legislature in reaching this decision. So this issue gets remanded, but the onerous standards means it will be very tough to prove such purpose.
2. Discriminatory effect under Section 2. This is the big win for the plaintiffs. The 5th Circuit adopted the two part “vote denial” test for Section 2 claims used by the 4th and 6th circuits (which is probably the standard that the trial court in the North Carolina voter id case will apply). Applying the test, the 5th Circuit affirmed the trial court’s finding of a Section 2 violation. It upheld the finding that the law will have a discriminatory impact on minority voters—that is, minority voters are disproportionately likely to lack one of the types of ID which are allowed under Texas law. Then, applying the “totality of circumstances” test/Gingles/Zimmer/Senate factors, the 5th Circuit found enough evidence to sustain a finding that SB 14 “produces a discriminatory result that is actionable because [it] . . . interact[s] with social and historical conditions in Texas to cause an inequality in the electoral opportunities enjoyed by African-Americans and Hispanic voters.” Particularly interesting in this analysis is the question whether Texas’s explanations for why it needed its law (antifraud, voter confidence) were tenuous. The trial court found that they were because the evidence did not support the need for voter id for either of these purposes, and this factor worked in favor of finding of a Section 2 violation. Also interesting is that the 5th Circuit relied (as I anticipated) on the Supreme Court’s recent Texas housing case in finding enough evidence of disparate impact. “As such, we conclude that the district court did not clearly err in determining that SB 14 has a discriminatory effect on minorities’ voting rights in violation of Section 2 of the Voting Rights Act. As discussed below, we remand for a consideration of the appropriate remedy in light of this finding in the event that the discriminatory purpose finding is different.”
3. First and Fourteenth Amendment violations. Using the principle of constitutional avoidance, the 5th Circuit refused to consider whether the laws violated the fundamental right to vote, an issue which could be revived if, for example, an en banc 5th Circuit rejects the panel’s views on the Section 2 violation.
4. Poll tax. The court rejected the poll tax argument, in part because since the district court decision Texas amended its law to get rid of a payment to get underlying documents to get a state issued id. “As amended by SB 983, Texas law no longer imposes any direct fee for any of the documentation required to obtain a qualifying voter ID.” The court also held the indirect costs of voting could not constitute a poll tax. The court added this: “This record reveals that Plaintiffs and those who lack both SB 14 ID and underlying documentation face more difficulty than many Texas voters in obtaining SB 14 ID. Plaintiffs and others similarly situated often struggle to gather the required documentation, make travel arrangements and obtain time off from work to travel to the county clerk or local registrar, and then to the DPS, all to receive an EIC. These greater difficulties receive consideration in the Section 2 discriminatory effect analysis, but Supreme Court jurisprudence has not equated these difficulties, standing alone, to a poll tax.”
5. Remedy. The 5th Circuit held that a remedy after a finding of discriminatory effects should be narrower, and more deferential to the state, than one where there is also a finding of discriminatory purpose. The 5th Circuit strongly suggests that if the trial court on remand finds no discriminatory purpose, it needs to consider a narrower remedy than simply declaring the voter id law as something which cannot be used under any circumstances:
“Clearly, the Legislature wished to reduce the risk of in-person voter fraud by strengthening the forms of identification presented for voting. Simply reverting to the system in place before SB 14’s passage would not fully respect these policy choices—it would allow voters to cast ballots after presenting less secure forms of identification like utility bills, bank statements, or paychecks. SeeTEX. ELEC. CODE § 63.001(b) (West 2010). One possibility would be to reinstate voter registration cards as documents that qualify as acceptable identification under the Texas Election Code. The court could also decree that, upon execution of an affidavit that a person does not have an acceptable form of photo identification, that person must be allowed to vote with their voter registration card.” This considerably narrows the scope of a Section 2 victory.
6. Timing. The court cautions that this case should not run up against election deadlines, as it did last time, raising “Purcell principle” issues: “We urge the parties to work cooperatively with the district court to provide a prompt resolution of this matter to avoid election eve uncertainties and emergencies.”
7. A Constitutional Challenge to Section 2 for the Supreme Court? Lurking in a footnote is the 5th Circuit’s rejection of the argument that if Texas voter id law violates Section 2 of the Voting Rights Act, then Section 2 is unconstitutional. The issue is one the 5th Circuit likely won’t address, but it could come up for the Supreme Court. (FN 24: “To the extent the State argues that the “results” test is unconstitutional, we note that this court and many others have upheld its constitutional validity. See, e.g., Vera, 517 U.S. at 990–91 (collecting cases upholding Section 2’s constitutionality); Jones, 727 F.2d at 373–74. “Congressional power to adopt prophylactic measures to vindicate the purposes of the fourteenth and fifteenth Amendments is unquestioned” and “[o]n those occasions when the Court has stricken enactments as exceeding congressional power under the enforcement clauses of the fourteenth or fifteenth amendments, the congressional objective has usually deviated from the central purposes of those amendments—to ensure black equality.” Jones, 727 F.2d at 373–74. We are bound by these precedents to conclude that Section 2, as applied here, does not deviate from that purpose.”).