A federal court in Washington D.C. has refused to preclear Texas’ photo voter identification law under Section 5 of the Voting Rights Act. The opinion is here.
While many may be surprised by this decision, PJ Media has been forecasting this outcome for some time. The seeds of today’s decision were planted in 2006 when Congress reauthorized the Voting Rights Act. Not only did Congress extend the law, but it changed the substantive requirements to a virtually insurmountable standard for any election integrity measure such as voter ID. In other words, some blame for today’s decision lies more with the Voting Rights Act itself. In 2006, the statute was amended to impose unconstitutional and unrealistic burdens on the states. The revised standard required covered states to prove the absence of “any” discriminatory effect or purpose. Any, of course, means greater than zero.
Now Texas has paid the price, twice in one week. (The same court rejected legislative districts under Section 5 earlier this week.)
Today, the three-judge panel ruled that Texas failed to prove the absence of any discriminatory effect with Voter ID. Judge David Tatel (Clinton appointee), writing for the court, and joined by Judge Rosemary Collyer (Bush 43) and Judge Robert Wilkins (Obama), determined that Texas could not prove the absence of a discriminatory effect.
It is notable that the court declined to rule on DOJ’s efforts to paint Texas as purposefully racist in passing voter ID. Tens of thousands of your tax dollars were spent in that quest, as they are now being spent to prove that South Carolina remains an enclave of Klan-like racism in the voter-ID trial taking place this week.
The court adopted reasoning rejected by other federal courts, such as the 9th Circuit Court of Appeals: “Importantly, it costs money to obtain any of these documents. This means that EIC applicants — i.e., would-be voters — who possess none of these underlying forms of identification will have to bear out-of-pocket costs.” This is the ancillary-cost argument. Since getting ID might require you to do other things, just like voting might require you to get out of bed and to the polls, then voter ID is a burden.
The court also goes into great detail about Texas’ decision to submit the law first to the DOJ for administrative preclearance, a step I have urged should have been avoided. The court focuses on the delays in providing the DOJ data, and the confessed unreliability of that data. The court was supposed to review the case de novo, meaning fresh, but obviously decided to consider the administrative DOJ objection. This is a warning to future states: avoid DOJ getting a free shot at you.