Monday, March 20, 2023 | Back issues
Courthouse News Service Courthouse News Service

Texas Voter ID Law Scrutinized by 5th Circuit

NEW ORLEANS (CN) - The future of a controversial Texas voter ID law is up to a 15-judge appeals court panel.

In arguments before the full Fifth Circuit on Tuesday, attorneys for the state argued the strict new voter ID requirements are needed to prevent fraud at the polls. The U.S, Justice Department and civil rights groups argue the problem the state says it needs to address is extremely rare and that the law discriminates by requiring forms of ID that can be difficult for low income, black and Latino voters to obtain.

Texas Solicitor General Scott Keller sought to address that latter claim right away on Tuesday, telling the en banc panel that 95 percent of eligible Texans are already in possession of the requisite ID.

The appeals panel judges must decide if the law discriminates against minorities and should be nixed before November's presidential election.

Ten of the circuit court's 15 active judges were nominated by Republican presidents not a good sign for opponents to the law, experts say.

Prior to the passage of the law, voters needed only a voter registration card, utility bill, bank statement, paycheck or mail from a government agency to cast a ballot. SB 14 requires voters to have one of seven forms of photo ID, including a Texas license to carry a handgun. Student photo IDs did not make the list.

Chief Judge Carl Stewart, an appointee of Bill Clinton, noted that Texas continuously compares its voter ID laws to other states, when, in fact, Stewart said, the Texas law is more stringent.

"Am I missing something?" Stewart asked Keller. "You mention Georgia, Indiana, Virginia, Wisconsin... places where they offer infinitely more options to the voter ID law than Texas."

Stewart said Virginia has 13 voter ID options, Wisconsin has 12 options, Indiana has 12 and Kansas has 17.

"Texas has seven," Stewart said.

"I'm not understanding how they are saying 'We're like Indiana, we're like Wisconsin. What is the justification?"

Stewart also said the greatest voter fraud in Texas has to do with mail in ballots.

"I cannot understand the connection" (between requiring photo IDs for in-person ballot casting when the fraud happens most often my mail), Stewart said.

Keller underscored that Texas issues free birth certificates to those who wish to use their birth certificate to obtain photo identification to vote.

Stewart pointed out, however, that by Texas law the birth certificates can only be obtained by showing up in person to the office.

Stewart said of 254 counties in Texas, just 88 have offices that can issue birth certificates.

Keller didn't refute this claim during the en banc hearing, but when asked about it afterward he said surely more than 88 counties have the offices required to issue birth certificates.

"In the ten years preceding SB 14, only two cases of in-person voter impersonation fraud were prosecuted to a conviction - a period of time in which 20 million votes were cast," U.S. District Judge Nelva Gonzales Ramos wrote in an October 2014 ruling overturning SB 14. Gonzales Ramos found the law has a "discriminatory effect" on African-Americans and Latinos because they are less likely than whites to have the proper identification.

A three-judge panel of the Fifth Circuit in October 2014 unanimously agreed with Gonzales Ramos that SB 14 has a discriminatory effect on minority voter turnout, in violation of Section 2, and upheld her injunction against it. But the order came so close to Election Day that to avoid voter confusion the Fifth Circuit reinstated the law with a stay that is still in effect.

Noting the 2014 district court ruling, Judge Stewart told Keller today: "We have a full trial, on record, undisputed. ... Are you arguing that all of that is irrelevant?"

Erin Flynn, an attorney for the Department of Justice read from Gonzales Ramos's 2014 ruling that the Texas voter ID law required too much time, expense and travel to not be considered discriminatory.

Flynn said the court's job is not to decide whether SB14 created discrimination, only to decide that SB14 isn't helping discrimination.

Janai Nelson of the NAACP said SB14 has had a "sharp impact" on black and Latino voters.

Nelson said the state offers "shifting and unsubstantiated" claims in support of SB14 and said the Texas legislature suppressed its own study that found 700,000 Texas residents who lack proper ID would be adversely affected by the passage of SB14.

Nelson said SB14 was enacted in a "racially charged environment," which she characterized as being "a very concerning context in which SB14 was passed."

Chad Dunn, on behalf of plaintiffs, said while Texas champions its issuance of free birth certificates as an easy step for voters without ID, the law is actually impractical because birth certificates are only issued in person and cannot be obtained by mail.

Dunn said people who cannot get ID are entitled to relief from the court, whether it happens to be one person or more.

In his closing statements, Scott Keller said the court must "show that minority participation is in fact suppressed" by SB14. Otherwise, he said, to do away with SB14 without first proving votes are suppressed would mean that "suddenly all voting laws are in jeopardy."

Keller said even if there is a preexisting ID disparity, opponents to SB14 still have to prove that not having adequate access to ID is affecting voter turnout.

On the courthouse steps afterward, Scott Keller and Texas Attorney General Ken Paxton said this is not an issue of fraud on behalf of the state.

Keller underscored that the state issues "free birth certificates, free IDs."

"This is not a discriminatory burden," Keller said.

Keller said the state uses mobile units to get the free IDs out, but he was vague on the topic of how or where the mobile units operate and disagreed with the statistic that just 88 out of 254 counties in Texas have offices from where birth certificates are issued.

"The point is to allow people to vote," Keller said. "We just want to know who those people are."

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.