Wednesday, a conservative federal appeals court handed down a 9–6 decision holding that Texas’ voter ID law violates the Voting Rights Act. It was an unexpected victory for voting rights from an unusual source. The United States Court of Appeals for the Fifth Circuit is, to put it mildly, a court that liberals typically try to avoid if possible.
Judge Edith Jones, an especially caustic conservative who Sen. Ted Cruz (R-TX) once said should be on the Supreme Court, wrote the primary dissent. Her opinion is a revealing window into the American right’s dismissive view of allegations of racial injustice. According to Judge Jones, the gravest injustice in this case isn’t that Texas enacted a law that appears to serve no purpose other than voter suppression, it is that the lawmakers who enacted this voter suppression law might get tarred as racists.
Jones’ opinion is a window into how even those Republicans with relatively moderate views on race — that is, Republicans who do not share Donald Trump’s penchant for overt appeals to racism — tend to approach questions of racial justice. As Matt Yglesias once wrote, “relatively few conservatives are interested in expressing racist views, but virtually all conservatives are united in the conviction that anti-racism run amok is ruining the country and almost no conservatives are interested in combating racism.” Yglesias labeled this phenomenon “anti-anti-racism,” and it is the driving force of much of Jones’ opinion. Texas tried to disenfranchise numerous voters, and Jones and the other judges who joined her opinion believe that the biggest problem is political correctness.
The Voter Fraud Fraud
Voter ID laws, which require voters to show photo ID at the polls in order to vote, are a common tactic conservative lawmakers use to shift the electorate rightward — even modest estimates indicate that these laws reduce Democratic candidates’ margins against Republicans by over a percentage point. Though voter ID’s defenders frequently claim these laws are needed to combat voter fraud at the polls, such fraud is virtually non-existent. A two-year investigation conducted by an Iowa Republican elections official, for example, uncovered zero cases of in-person voter fraud. The lead opinion in a Supreme Court case enabling voter ID laws was only able to cite one example of in-person fraud over the course of 140 years.
The Texas voter ID case, Veasey v. Abbott, focused on the racial impact of voter ID laws. The Voting Rights Act prohibits voting laws which result “in a denial or abridgement of the right of any citizen… to vote on account of race or color,” and Hispanic and African-American voters are “respectively 195% and 305% more likely than their Anglo peers to lack” voter ID, according to one expert who testified in the case. For this and other reasons, a majority of the Fifth Circuit held that the voter ID law cannot stand under the Voting Rights Act. Judge Jones, along with a handful of her colleagues, disagreed with this conclusion.
She opens her dissenting opinion, however, with outrage at the very notion that someone could think that Texas lawmakers might have intended to discriminate on the basis of race. Though the majority did not conclude outright that the lawmakers who backed this law had discriminatory intent — a question that matters because Texas could be placed under federal supervision if it did enact a law with such intent — it did order a trial court to reexamine whether the state acted with impermissible racial animus. In response, Jones is livid.
“By keeping [the discriminatory intent] claim alive,” Judge Jones writes, “the majority fans the flames of perniciously irresponsible racial name-calling.” She compares the majority to “Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the ‘truth.’” And she ends with a plea to save the reputations of elected officials who, at best, sought to water down the fundamental right to vote.
“Inflammatory and unsupportable charges of racist motivation poison the political atmosphere and tarnish the images of every legislator, and the Texas Lt. Governor and Governor,” says Judge Jones.
Such charges may be inflammatory, but in this case they are not “unsupportable.” As the majority opinion explains, the drafters of Texas’s voter ID laws and its supporters “were aware of the likely disproportionate effect of the law on minorities, and that they nonetheless passed the bill without adopting a number of proposed ameliorative measures that might have lessened this impact.” One state senator testified that he believes that “the Voting Rights Act has outlived its useful life.” And the record in this case “shows that Texas has a history of justifying voter suppression efforts such as the poll tax and literacy tests with the race-neutral reason of promoting ballot integrity.”
To be sure, the plaintiffs in this case have a difficult road ahead of them when they try to prove that impermissible racial intent animated Texas’ decision to enact this particularly law. Proving ill intent necessarily requires judges and litigants to look into the mind of lawmakers and discern their motivations. That is a difficult task for anyone who lacks extrasensory perception. Judge Jones spends much of her opinion harping on just how difficult it is to provide racially discriminatory intent. She’s right. Such claims are, by their very nature, difficult to win.
Moreover, this case, like many modern voting rights cases, blurs the lines between race and other improper motives. In the Jim Crow South, lawmakers sought to lock African-Americans out of the polls entirely because they did not want black people voting. Even in their most candid moments, however, modern day Republicans do not admit to similar motives for supporting voter ID laws. Pennsylvania’s current House Speaker, Mike Turzai (R), claimed in 2012 that voter ID “is gonna allow Governor Romney to win the state of Pennsylvania.” Heritage Foundation president and former Sen. Jim DeMint (R-SC) admitted that “in the states where they do have voter ID laws you’ve seen, actually, elections begin to change towards more conservative candidates.” Rep. Glenn Grothman (R-WI) said that “photo ID is gonna make a little bit of a difference” in helping a Republican candidate win his state in November.
But notice what these current and former lawmakers are not saying. They are not saying “I support voter ID because it makes it harder for black and Latino voters to cast a ballot.” They are suggesting that they support it because it makes Democrats less likely to cast a ballot.
At the same time, however, American democracy is increasingly polarized along racial lines, and voters of color are increasingly likely to support Democratic candidates. In 2012, for example, President Obama won 93 percent of African-Americans and 71 percent of Latinos. Democratic presidential candidate Hillary Clinton could potentially grow Obama’s margins now that the GOP has nominated an overt racist for the White House.
Race, in other words, can often serve as a proxy for partisan views, an issue that comes up fairly frequently in redistricting cases. If lawmakers intentionally pack black votes into a few districts in order to minimize those voters’ electoral power, such a racial gerrymander is illegal. And it does not become any more legal because the lawmakers were not actually motivated by white supremacy and were primarily interested in hurting Democrats.
A similar rule could apply in Veasey. That is, if Texas lawmakers knew that the law would have a disproportionate impact on voters of color, and supported it for that very reason because they knew that racial minorities are likely to support Democrats, then that would show a racially discriminatory intent.
The Party of John Roberts vs. The Party of Donald Trump
But again, to Judge Jones and several of her fellow judges, the worst part of this case isn’t the fact that Texas lawmakers may have intentionally sought to discriminate against African-American voters. Nor is it the fact that these lawmakers almost certainly intended to make it harder for Democratic voters to cast a ballot. For Judge Jones, the worst part of the case is that someone would have the audacity to “poison the political atmosphere” by suggesting that maybe a law that has the effect of locking many people of color out of the polls could have been motivated by racism.
Nor is this unwillingness to even consider the possibility that racism may infect America’s lawmaking unique to Judge Jones and her dissenting colleagues on the Fifth Circuit. Jones’ anti-anti-racism is simply a more virulent strain of the color-blindness that led a majority of the Supreme Court to hold that much of the Voting Rights Act should be gutted because there simply isn’t enough racism to justify such a law.
And this decision emerged from the more moderate of the two factions struggling to determine the Republican Party’s approach to race. The other is led by the man who addressed a raucous crowd of Republican convention delegates last Thursday, not long after he claimed Mexican immigrants are “rapists” and that a Mexican-American judge cannot be trusted to remain impartial.