It’s probably about to get a whole lot harder for hundreds of thousands of Texans to exercise their right to vote.
Last August, a three-judge panel of the conservative United States Court of Appeals for the Fifth Circuit held that Texas’s voter ID law violates the Voting Rights Act. It was a modest opinion, authored by George W. Bush appointee Catharina Haynes, that did far less to protect voting rights than the trial court that heard the same case. Nevertheless, Haynes acknowledged in her opinion that the law was likely to disproportionately target African American and Latino voters. In light of Haynes’s willingness to sign onto this opinion, voting rights advocates had some grounds for optimism that they would ultimately prevail in this case.
That optimism took a serious blow on Wednesday, when the full Fifth Circuit vacated Haynes’ opinion. Texas’ voter ID law now appears very likely to prevail in court.
Voter ID laws require voters to show a photo ID at the polls in order to cast a ballot. Though the laws are often justified as efforts to combat voter fraud, the kind of fraud that can be stopped by these laws barely exists. A Wisconsin study found only seven cases of fraud among the 3 million votes cast in that state’s 2004 election, and none were the kind of fraud that would have been prevented by a voter ID law. Similarly, in 2014, Iowa Secretary of State Matt Schultz (R) conducted a two year, $250,000 investigation into election misconduct within his state. He uncovered exactly zero cases of in-person voter fraud.
What do voter ID laws accomplish? They create an obstacle in front of voters that is most likely to impact racial minorities, low-income individuals and students — all groups that tend to prefer Democrats to Republicans. According to an analysis described in Haynes’ opinion, “Hispanic registered voters and Black registered voters were respectively 195% and 305% more likely than their Anglo peers to lack” a photo ID in the state of Texas. Even the state’s own expert witness “found that 4% of eligible White voters lacked [voter] ID, compared to 5.3% of eligible Black voters and 6.9% of eligible Hispanic voters.”
Estimates vary on just how much a voter ID law can skew an election. Data journalist Nate Silver once estimated that such a law could “reduce President Obama’s margin against Mitt Romney by a net of 1.2 percentage points.” A more recent study, however, determined that they will have a more dramatic effect. “Democratic turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place,” as opposed to just 3.6 percentage points for Republicans, according to that study.
Under the Fifth Circuit’s Wednesday order, every active judge on the court will rehear the challenge to voter ID — a process known as “en banc” review. Typically, when a federal appeals court takes a case en banc, it is a sign that a majority of the court disagrees with the panel’s decision and intends to reach the opposite result. The Fifth Circuit is one of the most conservative, if not the most conservative, federal appeals courts in the country. Ten of its fifteen active judges were appointed by Republican presidents, and a Fifth Circuit panel was recently rebuked by the Supreme Court for its unusually aggressive support for laws restricting access to abortion.
Nevertheless, the court’s decision to hear this case en banc is surprising, given the long lapse between Haynes’ opinion and the court’s announcement that the full Fifth Circuit would hear the case. Texas filed its request for en banc review in late August, meaning that more than six months passed between that request and the court’s decision to grant it. Typically, such requests are handed in a matter of weeks — a longer wait normally means that the request will be denied and a judge in the minority is preparing a dissent from this denial.
The court did not explain the reason for this delay, but one possibility is that a group of the Fifth Circuit’s conservatives were content to allow Haynes’ opinion to stand so long as they were confident that a conservative Supreme Court would review that opinion. After Justice Antonin Scalia’s death shifted the balance of power on the Supreme Court, however, these conservatives may have changed their vote to grant en banc review.
Now, with only eight justices on the Supreme Court, it is fairly likely that the en banc Fifth Circuit will get to decide whether many Texans retain their right to vote. As voting rights expert Rick Hasen explains, “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.”