Today the Fifth Circuit Court of Appeals struck a potentially fatal blow to Texas voter ID. The Appeals Court upheld the lower federal court’s ruling that Texas Voter ID violated Section 2 of the Voting Rights Act.
Writing for the court, Judge Catharina Haynes (W appointee) upheld the lower court and adopted a version of the Voting Rights Act that incorporates a statistical disparate impact analysis. Simply, if minorities are disproportionately affected statistically by a state election law, it likely violates federal law.
Texas could have fixed the voter ID law in the legislative session which began last January, but didn’t. Some in Austin assured Texas legislators that the Fifth Circuit would reverse the lower court and uphold Texas voter ID. They were wrong, and the legislature is now out of session. A fix might have included a reasonable impediment affidavit of the sort that established South Carolina voter ID’s constitutionality.
There are very few silver linings in this cloud. I note three.
1. The ruling deals a blow to the Justice Department’s theories on intent. The opinion says that there must be the specific intention to discriminate, not just that discrimination might occur. This is a serious blow to those who would offer a legal theory that shows intent everywhere.
2. Shelby is cited for the idea that discrimination must be contemporaneous. So much for the DOJ-fueled experts who reflexively talk about Reconstruction.
3. This won’t sit well with the plaintiff’s braintrust: “In turn, the relevance of this evidence rests upon the unsupported premise that a legislator concerned about border security or opposed to the entry into Texas of undocumented immigrants is also necessarily in favor of suppressing voting by American citizens of color.”
Some were surprised by the Fifth Circuit’s ruling today. The Tatler was not. Way back in 2011, Justice Department sources were telling the Tatler that Texas didn’t seem to know what they were doing in the voter ID defense.
The DOJ sources report that Texas seems unaware that the Georgia preclearance was conducted using an old legal standard, no longer in effect. A new standard was passed by Congress in 2006 and Texas’ misplaced reliance on the Georgia Voter ID approval by DOJ is making Texas seem out of touch with the environment they face. They also say there is nothing in Supreme Court rules that are inconsistent with the South Carolina objection, and Texas doesn’t seem to understand that. . . . The DOJ source reports that “if that were really true, then Abbott would have filed in federal court against us after the South Carolina objection. They have no clue what they are doing and the damage they are doing to Texas Voter ID. They think they can win after an objection. Good luck. They have no idea what is about to happen.”
The law was in effect for the 2014 election, but the Tatler knew it would be the last. In “One Last Hurrah for Texas Voter ID,” we wrote:
But election integrity advocates shouldn’t celebrate too much. Texas Voter ID is doomed. After this next election, it is prohibited from being used.
True, the prediction was Texas voter ID would die on the intent prong but survive on the effects prong. But dead is dead, and the law is dead. I’ll leave it to someone else to report the rolling mess that started back in 2010. It wasn’t until the new administration took over after the 2014 elections that the defense started to swirl into high gear. But it was too late.
Now, an opinion that supports a new interpretation of Section 2 of the Voting Rights Act is the law from El Paso to Meridian, Mississippi.
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