A unanimous three-judge panel of the Fifth Circuit today ruled that Texas’s restrictive voter ID law adopted in 2011’s SB 14 violates Section 2 of the Voting Rights Act because it has a racially discriminatory effect. This is a great victory for voting rights.
The Texas voter ID law had previously been struck down by a district court. Judge Nelva Gonzales Ramos had concluded not only that the law violated Section 2, but that Texas had adopted it with the intent to discriminate, in violation of the Constitution. The Fifth Circuit rejected her analysis of how to discern discriminatory intent, concluding that she relied on factors that should not have been considered, such as long-ago intentional discrimination and assertions by the law’s opponents. The Fifth Circuit remanded the case for her to reanalyze that aspect of her decision using a narrower set of evidence. If she reaches the same conclusion, the voter ID part of the law would be struck down completely as unconstitutional. But even if she finds no intentional discrimination, Judge Ramos can still fashion a remedy for the Section 2 violation, although it could very well fall short of completely eliminating the voter ID requirement section of SB 14.
You might wonder why a bill passed in 2011 is at this state of litigation more than four years after it was adopted. The answer lies in the Supreme Court’s notorious Shelby County decision from 2013 that gutted the VRA’s critically important preclearance provision, which had covered Texas.
In 2012, a three-judge district court refused to preclear the law, finding that it would have had a harmful effect on racial minorities. That should have been the end of the story, with Texas unable to put the law into effect. But Shelby County removed Texas from preclearance requirements, allowing it to implement the law despite its previous failure at preclearance. That meant that its victims had to go to court to challenge the law, bearing the burdens of litigation and of proving their case, even while people across the state suffered from the law’s discriminatory effects, including during the 2014 elections. In fact, more than half a million registered voters in Texas lack the proper ID required by the law.
Now, two separate federal courts have ruled that SB 14 violates Section 2 of the VRA, and the case still has further to go: Even if the state doesn’t appeal today’s ruling, the remand back to the district court means that more litigation is in store, and portions of the law may still end up going into effect, albeit with a less discriminatory impact.
Far more efficient and just would have been to allow the preclearance provision of the VRA to work as Congress intended. Texas officials’ eagerness to implement this discriminatory law as soon as they were able to shows just how important the preclearance provision is in protecting the right to vote.
Tomorrow will be the fiftieth anniversary of the Voting Rights Act. Today’s ruling is a reminder of the law’s importance. It is also a great example of why Congress should pass the Voting Rights Advancement Act, which would not only restore the vital protections of preclearance consistent with the Supreme Court’s directive that any formula should be based on modern circumstances, but also make other critical improvements to the landmark law.