In a stunning, unexpected decision from one of the most conservative federal appeals courts in the country, the full United States Court of Appeals for the Fifth Circuit handed down a decision on Wednesday holding that a Texas voter suppression law violates the Voting Rights Act. The court heard this case, en banc, a rarely invoked process where a full appeals court (as opposed to a panel of three judges) meets to decide a case. The vote was 9–6, although the majority split on whether to uphold a lower court’s finding that Texas acted with discriminatory intent in enacting this law.
Voter ID laws are a common restriction on voting, which are often favored by conservative lawmakers. Ostensibly, they address an exceedingly rare phenomenon, voter fraud at the polls. A Wisconsin study, for example, found just seven cases of fraud among the 3 million votes cast in the state’s 2004 election, and none were the kind of fraud that would be prevented by a voter ID law. Similarly, in 2014, Iowa Secretary of State Matt Schultz (R) conducted a two year investigation into election misconduct within his state. He uncovered zero cases of in-person voter fraud.
Laws requiring voters to show photo ID in order to vote do create an obstacle to the franchise that is particularly likely to impact racial minorities, low-income voters, students and other groups that tend to prefer Democrats to Republicans. Data journalist Nate Silver estimated that voter ID could “reduce President Obama’s margin against Mitt Romney by a net of 1.2 percentage points.” A more recent study found even starker results, determining that “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.
Voter ID’s disparate impact on racial minorities formed the backbone of Veasey v. Abbott, the case that was just decided by the Fifth Circuit. Section 2 of the Voting Rights Act prohibits any “voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.” And, as the court explains, this law is such a prerequisite to voting. One expert testified that “that Hispanic registered voters and Black registered voters were respectively 195% and 305% more likely than their Anglo peers to lack” voter ID. Another survey found that “Blacks were 1.78 times more likely than Whites, and Latinos 2.42 times more likely, to lack” voter ID. Even the state’s own expert determined that “4% of eligible White voters lacked [voter] ID, compared to 5.3% of eligible Black voters and 6.9% of eligible Hispanic voters.”
Meanwhile, the law raised serious obstacles between many voters and the polls. One voter “had the help of his son in attempting to obtain SB 14 ID, but they faced an almost impossible bureaucratic morass when they tried to get the required underlying documentation.” Another was unable to obtain ID “because he was unable to get his Louisiana birth certificate for the hefty $81 fee online.” Still others face “an hour-long, one-way trip to reach the nearest DPS office” or “a 60-mile roundtrip ride to the nearest DPS station.”
So the court, after considering a complicated array of factors presented by such cases, held that the law violates the Voting Rights Act. That’s the good news for voting rights. The bad news is two-fold.
First, a majority of the Fifth Circuit determined that “there are infirmities in the district court’s” conclusion that Texas acted with discriminatory intent, although it also returned the case to the lower court to reconsider whether such intent existed. That matters for several reasons, the most potentially significant of which is that Section 3 of the Voting Rights Act permits states that act with racially discriminatory intent to be subjected to continuing federal supervision of their voting laws. If the courts ultimately conclude that Texas acted with discriminatory intent, they could also decide to place Texas under the same kind of supervision that the Supreme Court eliminated in its 2013 decision striking down part of the Voting Rights Act.
Additionally, while the Fifth Circuit found Texas’ voter ID law wanting, it is unclear what the remedy will be for this violation of the law. “We acknowledge that the record establishes that the vast majority of eligible voters possess SB 14 ID, and we do not disturb SB 14’s effect on those voters” the court writes,” adding that “those who have SB 14 ID must show it to vote.” It instructs the lower court that the eventual “remedy must be tailored to rectify only the discriminatory effect on those voters who do not have SB 14 ID or are unable to reasonably obtain such identification.” (One possible solution is that the remedy could match the same one handed down by a Wisconsin federal judge in a similar case on Tuesday.)
So this is a victory for voting rights, but not a total one. Nevertheless, given the Fifth Circuit’s conservatism, it is a surprising decision. And no doubt a welcome one for voting rights supporters.