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.