This 27-page opinion and order explains the basis for the trial court’s decision to hold that Texas’s voter identification law may not be enforced at all. It is an important ruling, but a more important one is yet to come from this court: whether Texas will be put back under the preclearance provisions of the Voting Rights Act.
To simplify things just a bit, when the district court first looked at this case, it determined that Texas’s voter ID law had a racially discriminatory effect, violating Section 2 of the Voting Rights Act, as well as a racially discriminatory purpose, violating the VRA and the 14th and 15th Amendment of the Constitution. When the case reached the Fifth Circuit on appeal, a sharply divided court sitting en banc (all of the 5th Circuit judges) agreed that the law violated Section 2 given its racially discriminatory effect. But the judges also held that the trial court had to reconsider the question of racially discriminatory purpose, because the court considered some evidence it should not have in evaluating purpose. The Supreme Court did not take a further appeal, with Chief Justice Roberts issuing a separate statement saying that the case was not really final enough to merit Supreme Court review.
For two reasons, it matters whether the courts find discriminatory purpose in addition to discriminatory effect. When there is just a discriminatory effect, the remedy is much narrower. In this case, the interim remedy was to tinker with the voter id law, such as allowing voters to file an affidavit explaining why they lack the necessary ID signed under penalty of perjury. With a finding of purpose, however, the entire law could (and today was) thrown out. Second, a finding of intentional discrimination can be the basis, under section 3c of the Voting Rights Act, to put Texas back under the preclearance provisions of the Voting Rights Act for up to 10 years, at the court’s discretion. The court has scheduled further briefing on the section 3c issue for the end of the month.
Today the court reaffirmed the discriminatory purpose finding, and held that the tweaks Texas made to its voter id law in a recent session did not solve the problem of discriminatory purpose. In some ways Texas made things worse. The affidavit requirement, for example, could intimidate voters given that many sections open up voters to prosecutions for felony perjury. The Court also noted that the new law did not include any money for voter education, which the court found crucial to a fairly applied voter id law.
What comes next? Texas will no doubt appeal this ruling to the Fifth Circuit, and the first question will be some kind of interim relief—Texas will ask to continue to enforce its voter id law as this case works its way through the 5th Circuit (and likely back to the entire 5th Circuit sitting en banc). What happens in the request for a stay of the district court’s order may give us some sense of what is likely to happen on the merits at the Fifth Circuit.
But ultimately this case is heading to the Supreme Court. What kind of reception it gets there will likely depend upon (1) whether Justice Kennedy is still on the Court and (2) how Justice Kennedy, if still on the Court, views the evidence of intentional discrimination in this case.
If the district court later puts Texas back under preclearance, that decision too could put the case back in front of the Supreme Court.
Stay tuned.
[This post has been updated.]