CORPUS CHRISTI, Texas (CN) – The Trump administration urged a federal judge this week not to block Texas’ new voter ID law from taking effect because it codifies remedies suggested by the Fifth Circuit, the same court that found the state’s previous law disenfranchised minority voters.
Gov. Greg Abbott signed Senate Bill 5 on June 1 and it might go on the books on January 1, 2018.
The bill’s fate is in the hands of U.S. District Judge Nelva Gonzalez.
She will consider whether to block it as requested by legal challengers who claim SB5 maintains the same “picking and choosing of ‘acceptable’ photo IDs” as the state’s former voter ID law, Senate Bill 14.
The Texas Legislature passed SB14 along party lines in 2011 with Republicans in the majority saying it was needed to crack down on in-person voter fraud.
Texas and the Justice Department claim that SB5 adequately broadens voter access by letting people bring a voter registration certificate, a current utility bill, or a birth certificate, among other documents, to the polls and sign a reasonable impediment affidavit stating why they couldn’t get acceptable photo ID.
In a brief filed on Wednesday, the Justice Department’s Civil Rights division says SB5 should stand because it incorporates changes the Fifth Circuit said would bring the state’s photo ID law into compliance with the Voting Rights Act.
According to the feds, the Fifth Circuit in a July 2016 ruling “invited the Texas Legislature to adopt a ‘legislative fix,’” and suggested Texas look into reasonable impediment declarations to address people who don’t have proper photo ID, similar to measures adopted by North Carolina and Indiana.
The feds’ brief adds that SB5 is a good solution because it extends the cut-off period for acceptable photo identification to four years past the expiration date, as opposed to SB14, which didn’t allow IDs that had been expired for more than six months.
The changes are taken from an interim order Gonzales Ramos put in place for the November 2016 elections, but there are some key differences between SB5 and the interim order.
Under SB5, anyone who makes a false statement on the declaration can be prosecuted for perjury, and it increases the penalty from a Class B misdemeanor, to a Class A misdemeanor, punishable by up to a year in jail and a $4,000 fine.
“Members of minority groups who have been repeatedly victimized by official discrimination to stop them from voting are likely to feel intimidated by this process,” plaintiffs’ attorney Danielle Lang wrote in a brief filed on Wednesday.
Lang works for the Campaign Legal Center – a nonpartisan nonprofit in Washington that represented the plaintiffs who successfully challenged SB14 in court – Rep. Marc Veasey, D-Fort Worth, the NAACP, the League of United Latin American Citizens and others.
She filed the brief for “private plaintiffs,” six Texas residents and La Union Del Pueblo Entero Inc., a community-activist group founded by the late worker-rights advocate César Chávez.
SB5 also restricts voters to citing one of seven specific reasons for not having acceptable photo ID on the affidavit: lack of transportation, lack of birth certificate or other documents needed to obtain acceptable photo ID, work schedule, lost or stolen photo ID, disability or illness, family responsibilities, or SB 14 ID applied for but not received.
It does away with an “Other” box that voters could check under the interim order and write a reason for not having acceptable ID.
In addition, the plaintiffs’ brief states, Gonzales Ramos’ interim order allowed any birth certificate to be used to access the polls.
“SB5 allows only ‘domestic’ birth certificates, which is likely to discriminate against Latino voters who are disproportionately naturalized citizens born outside of the United States,” the filing states.
Lang states in the brief that the reasonable impediment declaration rules set by SB5 could be part of an acceptable remedy for her clients if three changes were made: “the possibility of prosecution for perjury or any false information charge was limited to instances where the declarant is not the person the voter says he or she is … any government-issued birth certificates was acceptable as proof of identification, not just ‘domestic’ birth certificates; and an ‘Other’ box was provided on the [affidavit] for explaining why the voter cannot get SB14 ID.”
The plaintiffs’ brief also takes issue with the fact that SB5 doesn’t mandate that Texas election officials train election workers and educate voters on the new rules.
The Justice Department, however, claims in its brief that Texas has agreed to spend $4 million over two years on a public education campaign for SB5, to train poll workers on the law and pay for mobile units that will issue free election identification certificates that include the voter’s photo.
The challengers’ filing urges Gonzales Ramos to issue an injunction against SB14’s photo ID requirements and revert to pre-SB14 rules where voters could access the polls by showing their voter registration card, which don’t include their photographs.
They also ask the judge to enjoin SB5. “At its core, SB 5 maintains the same unexplained picking and choosing of ‘acceptable’ photo IDs for in-person voting—accepting IDs disproportionately held by Anglo voters and rejecting IDs disproportionately held by minority voters—that led the court, in part, to its discriminatory intent finding,” the brief states.
Critics say the Legislature’s inclusion of concealed-handgun permits, which white voters are more likely to have than minorities, but not college IDs and state government employee IDs, is proof of its efforts to tamp down votes from minorities, who typically vote for Democrats.
SB14 opponents also say there is scant evidence of voter fraud the Texas Legislature cited to justify passing the law.
“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,” Gonzales Ramos wrote in an October 2014 ruling.
The plaintiffs want Gonzales Ramos to retain jurisdiction over any changes Texas makes to its voter ID laws, a request the Justice Department says “is unavailable” because the Texas Legislature has already “remedied the violation” by passing SB 5.
Gonzales Ramos set a July 17 deadline for the parties to file responsive briefs.
The legal wrangling comes against the backdrop of Trump’s request, through his newly formed Presidential Advisory Commission on Election Integrity, for states to submit data from their voter rolls, in part to investigate Trump’s unsubstantiated claims that millions of people voted illegally in the November election.
Voting experts called SB14 the strictest voter ID law in the United States because it only allowed seven forms of photo ID. Around 608,000 registered voters in Texas do not have proper SB14 identification – 4.5 percent of the registered voters in Texas, according to the case record.
Under President Barack Obama, the Department of Justice joined the legal challenge of SB14.
But The Department of Justice withdrew from the case after President Donald Trump appointed former Alabama Senator Jeff Sessions as U.S. attorney general, and Sessions was confirmed by the Senate.
The en banc Fifth Circuit ruled in a July 2016 order that SB14 discriminates against black and Hispanic voters because they are less likely to have SB14 identification. The New Orleans-based court remanded the case to Gonzales Ramos to explore whether the Texas Legislature intended to discriminate.
Gonzales Ramos complied, ruling in April that Texas had intentionally crafted SB14 to suppress the votes of minorities. The April ruling tracked a 2014 order in which she blocked the law with an injunction, explaining in a 142-page decision that SB14 “will disproportionately impact low-income Texans” who are less likely to have the needed ID.
Since many poor Texans are minorities, she reasoned, the law is discriminatory.