NEW ORLEANS (CN) – Exchanges grew heated before a three-judge panel of the Fifth Circuit on Tuesday as attorneys for and against Texas’ controversial voting law argued whether the law’s requirements are discriminatory.
In September, a divided appeals court panel stayed an injunction of the bill at the request of Texas Attorney General Ken Paxton after a federal judge in Texas concluded its requirements are discriminatory in nature.
That panel had been made up of U.S. Circuit Judges Jennifer Elrod and Jerry Smith, two Republican-appointed judges – who ultimately agreed with Texas on the merits of SB 5 – and U.S. Circuit Judge James Graves Jr., an Obama appointee who wrote a dissent faulting his colleagues for not blocking the entire law from taking effect until a final ruling was issued.
Graves appeared again on Tuesday’s panel, alongside U.S. Circuit Judge Patrick Higginbotham and Edith Jones, both nominees of President Ronald Reagan.
Attorneys for the U.S. Justice Department and the state of Texas argued SB 5 is not discriminatory and does not leave minority voters in the dark about which forms of identification are required to enter the polls and vote.
But the back and forth between judges and attorneys Tuesday was at times heated.
“The Supreme Court specifically says we don’t inquire about motives of discrimination because motives like that can be hidden,” Jones remarked during opposing arguments presented by Ezra Rosenberg on behalf of the Texas NAACP and the Mexican American Legislative Caucus.
Jones rephrased the comment: “If the thousands of pages of documents [on SB 5] in the Supreme Court’s possession don’t say somewhere, ‘We plan to discriminate against minority voters,’ doesn’t that mean it’s not there?”
Rosenberg replied the argument is not that SB 5 was created as part of a “discriminatory attempt” but that “SB 5 was found to have a discriminatory effect.”
Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, said that “contrary” to Texas’s claims that SB 5 is substantially different than SB 14, “it is not.”
She said that the “criminal threat of prosecution” creates a discriminatory effect.
Jones disagreed, saying that the discriminatory effect SB 14 had was that, under the bill, “[minority] people were not able to vote.”
Here, Jones said, there is nothing in particular to keep anyone from registering to vote.
Judge Higginbotham asked Nelson, “What do you want [to remedy the errors of this bill]?”
Nelson thanked Higginbotham for the question and said the voter ID-law should not focus on such a narrow list of acceptable IDs. The plaintiffs, she said, would also like the law to drop the threat of criminal prosecution if a voter makes any mistakes on the application.
“The district judge found the bill’s discrimination was undercut by the threat of criminal prosecution and that it is deafeningly silent on the issue of educating voters,” Nelson said.
Higginbotham questioned whether her group could rephrase its argument.
“Why can’t you make all these arguments to attack legislation?” he asked.
“We could,” Nelson replied. “But it is not what we are required to do – the state bears that burden.”
Nelson went on to say that “SB 5 bears every discriminatory provision of SB 14.”
“So you’re saying there can be no voter ID laws?” Jones asked.
“No,” Nelson said.
Jones said in Texas “there were as many instances of people voting ‘other’ as there were instances of voter fraud [in the last election] – which is to say about three dozen.”
Soon after this comment, Jones told Nelson, “I’m taking advantage of your eloquence.”
In August U.S. District Judge Nelva Gonzales Ramos found SB 5, which Texas Governor Greg Abbott signed in June, is more likely to disenfranchise Hispanic and black voters than whites. The bill is on course to become law in January 2018.
Ramos blocked the bill, finding the potential punishment of up to a year in prison for lying on an affidavit to enter the polls without photo ID too stiff and designed to scare off minority voters, who are more inclined to vote for Democrats. This was enough proof for Ramos that the bill was passed with discriminatory intent.
The NAACP Legal Defense and Educational Fund issued a statement on the case Tuesday: “This past June, after many years, and wasting approximately $5 million taxpayer dollars (and counting) to defend its racially discriminatory voter ID scheme, Texas enacted SB 5 – an amendment to SB 14 that maintains SB 14’s core discriminatory architecture. In an unsuccessful attempt to remedy SB 14’s discrimination, SB 5 creates two classes of voters: those who can present one of SB 14’s limited forms of photo ID or those who are forced to essentially stand in a separate line and engage in a separate voting process that subjects them to a potential criminal prosecution.”
Chad Dunn, appearing on behalf of plaintiffs Tuesday, clarified the two separate lines as being essentially “one for the preferred class and one for the back of the bus” in his arguments before the judges.
Once again Higginbotham said plaintiffs’ arguments aren’t “really a violation of the law” and suggested plaintiffs take the fight up with legislation.
“What we’re talking about is intent,” Dunn said.
To which Jones replied: “Your proof is only that a small number of minority voters are disadvantaged here.”
The Fifth Circuit panel gave no indication of when they might ultimately decide on the issue.
The litigation at issue dates back to 2013 when the NAACP Legal Defense and Educational Fund, the League of United Latin American Citizens and others sued Texas over its previous voter ID law, Senate Bill 14, and convinced Gonzalez Ramos that there was little evidence of the in-person voter fraud that Texas Republicans claimed underscored the need for a tough voter ID law.
Passed along party lines in 2011, SB 14 restricted registered voters to presenting one of seven forms of photo ID to access polls.
Gonzalez Ramos blocked SB 14 in a 2014 ruling that found it had a discriminatory impact on minorities. The en banc Fifth Circuit agreed in July 2016, and the case was sent back to the lower court to come up with interim voting rules for the November presidential elections.
Gonzalez Ramos approved an interim plan that watered down SB 14 by allowing voters to bring a certified birth certificate, bank statement, paycheck or utility bill to the polls and sign a declaration stating why they could not get an ID approved under SB 14.
The Texas Legislature incorporated the affidavit process into SB 5, but did not expand the list of acceptable photo IDs, and did away with the “other” box that voters could check on the affidavit and write in a reason for not having state-approved ID.
Gonzales Ramos said in her Aug. 23 ruling that the missing other category would make some registered voters avoid voting out of fear that checking the wrong box could get them prosecuted for perjury.
The Justice Department backed the challenge of SB 14 under Obama, but switched sides after President Donald Trump took office and tapped former Alabama Sen. Jeff Sessions as attorney general.