(CN) – A divided Fifth Circuit upheld Texas’ new voter ID law Friday, concluding the state’s overhaul of the law adequately addressed concerns it had intentionally discriminated against black and Hispanic voters.
Gov. Greg Abbott signed Senate Bill 5 into law in June 2017 after U.S. District Judge Nelva Gonzales Ramos and the en banc Fifth Circuit found the state’s previous voter ID law, SB 14, was more likely to disenfranchise black and Hispanic voters than whites.
SB 5 incorporated provisions in a stop-gap interim order Ramos crafted for the November 2016 presidential election.
The interim order opened up the polls by allowing voters to cast a ballot if they had a current utility bill, a bank statement, or paycheck, and signed a reasonable-impediment declaration that explained why they lacked one of seven acceptable forms of SB 14 ID.
But Ramos blocked SB5 with an injunction last August.
She found that changes SB5 made to the interim order did away with an “other” box that voters could check on the affidavit and write in a reason for not having state-approved ID, and added a notice that voters who made false statements on the form could be prosecuted for perjury. She said the changes would have a chilling effect and scare off minority voters from the polls.
U.S. Circuit Judge Edith Jones, a President Ronald Reagan appointee, took Ramos to task Friday for not deferring to Texas’ legislative remedy.
Writing for the 2-1 majority, Jones said that all the 27 witnesses who testified for the plaintiffs about their difficulties in getting proper ID under SB 14, can vote under SB 5 by filling out a reasonable impediment affidavit.
Besides that, Jones wrote, 95 percent of Texas voters, regardless of race, had satisfactory ID under SB 14, before SB5 expanded access to the ballot box.
The acceptable excuses on the affidavit include lack of transportation, lack of birth certificate or lost or stolen ID.
Jones also found that Texas was justified in nixing the “other” box on the affidavit because 19 people had checked the “other” box during the 2016 election, just so they could write in their objections to SB 14.
Jones said Ramos’ concerns that minority voters would not vote from fear of possibly being charged with perjury are unfounded.
“Plaintiffs’ concern that this warning would intimidate voters who need to avail themselves of a DRI [declaration of reasonable impediment] is wholly speculative,” she wrote in a 16-page order that reversed and struck down Ramos’ injunction against SB5.
U.S. Circuit Judge Patrick Higginbotham, a Reagan appointee, wrote in a 4-page concurring opinion that he believes the case should have been tossed out when Texas passed SB5.
“The remedy is no more than applying the new law. And when that new law supplies the sought relief, the case is moot,” he wrote.
In dissent, U.S. Circuit Judge James Graves, a President Barack Obama appointee, returned to arguments he made in a September 2017 dissenting opinion.
“Texas argues that the Legislature passed voter ID legislation to rid the state of voter fraud. But Texas produced no significant evidence of voter fraud,” he wrote.
He agreed with Ramos’ contention that SB5 did not eliminate vestiges of discrimination in SB14 and cited the Fourth Circuit’s 2016 ruling in North Carolina State Conference of NAACP v. McCrory.
In that case, the appellate court held the North Carolina Legislature had purposely crafted a voter ID law to work against Democratic-leaning black voters.
North Carolina, like Texas, then changed its law to let voters lacking the required identification fill out reasonable-impediment declarations, but the Fourth Circuit said that was not good enough because voting laws “passed with a discriminatory intent … cannot stand.”
“The Fourth Circuit reasoned that because the North Carolina voter ID law was passed with a discriminatory intent, it had to be ‘eliminated root and branch,’” Graves wrote in his 30-page dissenting opinion.
Texas’ winning rationale for the photo ID litigation -that it essentially adopted voting rules imposed by a court- mirrors arguments it made Monday before the U.S. Supreme Court in a case accusing its Legislature of drawing racially gerrymandered Congressional and state voting districts.
Texas told the high court that it could not be held liable for its Legislature’s passage in 2013 of a map that essentially copied an interim map that a San Antonio federal court had drawn in 2012.
Texas Attorney General Ken Paxton keyed on that logic Friday in a statement about the voter ID ruling.
“The court rightly recognized that when the Legislature passed Senate Bill 5 last session, it complied with every change the 5th Circuit ordered to the original voter ID law,” he said.
The case dates back to 2013 when plaintiffs U.S. Rep. Marc Veasey, D-Fort Worth, the NAACP, the League of United Latin American Citizens and others challenged SB14 with a federal lawsuit in which they argued that with its passage of SB 14 in 2011, the Texas Legislature had imposed the most restrictive voter ID law in the United States to combat the phantom scourge of voter fraud.
According to the case record, in the 10 years before SB 14 became law, only two cases of in-person voter fraud were prosecuted to conviction out of 20 million votes cast.
The challengers also claimed that the Texas Legislature’s discriminatory intent was evident in the fact that it excluded student IDs from the list of acceptable IDs, but permitted concealed handgun permits, which white voters possess in greater numbers than minorities.
Danielle Lang, with the nonprofit Campaign Legal Center, represents the plaintiffs in the case.
She said in a statement Friday they are exploring their legal options, which could include a lawsuit against SB5, as both judges who upheld the law stressed that their order does not preclude such a challenge.
Lang said she’s focusing on the positives that have come out of years of litigation.
“While we are disappointed by the outcome today, we must not lose sight of how far we have come in the fight for Texas voters. Because of our brave clients and this litigation, voters statewide can never be turned away from the polls simply for lacking a certain type of photo ID,” Lang said.