//  8/28/17  //  Commentary

Last Wednesday, U.S. District Judge Nelva Gonzales Ramos granted a permanent injunction blocking Texas from enforcing its revised voter ID bill, S.B. 5, which Texas lawmakers passed a few months ago to replace the State’s previous voter ID law, S.B. 14. In 2014, Judge Ramos issued a 147-page decision finding that S.B. 14 had an impermissible discriminatory effect against Hispanics and African Americans and was passed with a discriminatory purpose--in violation of Section 2 of the Voting Rights Act (VRA) and the Fourteenth and Fifteenth Amendments. The Fifth Circuit affirmed her decision on discriminatory effects, but remanded the case for a reassessment of the evidence bearing on whether Texas had enacted the law with a discriminatory purpose.

On remand, in her Wednesday opinion, Judge Ramos found that the revised voter ID law, S.B. 5, did not remedy the legal infirmities of S.B. 14. In particular, she concluded that the new law still discriminated against minority voters and did not “retroactively purg[e] S.B. 14 of its [unconstitutional] discriminatory purpose.” Her decision is notable for two reasons. First, it is the third ruling in the last two weeks finding that Texas discriminated against minority voters. (The two other cases concern language assistance at the polls and congressional redistricting maps.) Second, her finding of discriminatory purpose is particularly significant because it means that the court has discretion to put Texas back under the VRA preclearance regime for up to 10 years (through Section 3 of the VRA).

But the case is significant for another reason: it represents a dramatic shift in the Justice Department’s stance on voter ID laws. Up until this February, DOJ engaged in a six-year long fight against Texas’s discriminatory voter ID law, filing powerful briefs attacking the statute at every level of the federal judiciary (including the Supreme Court). However, once Attorney General Sessions was confirmed by the Senate, DOJ swiftly changed its position on this issue, asking the court to dismiss DOJ’s earlier claim that the law intentionally discriminated against minorities. That move drew criticism at the time, and Judge Ramos quickly rejected DOJ’s abrupt request to drop that issue altogether.  

As the litigation proceeded with Sessions at DOJ’s helm, the federal government continued to side with Texas. In July, DOJ submitted a brief arguing that S.B. 5 “eradicate[d] any discriminatory effect or intent in S.B. 14 . . . [and] le[ft] no ongoing violation of federal law for the United States to pursue or the Court to remedy.” S.B. 5 in itself, the brief argued, also imposed “no material burden on Texas voters.”

Needless to say, the court disagreed on both counts:

As previously found, the Texas Legislature’s subsequent action in passing SB 5—after years of litigation to defend SB 14—does not govern a finding of intent with respect to the previous enactment. Even if such a turning back of the clock were possible, the provisions of SB 5 fall far short of mitigating the discriminatory provisions of SB 14. . . Along with continued provisions that contribute to the discriminatory effects of the photo ID law, SB 5 on its face embodies some of the indicia of discriminatory purpose . . .  

Specifically, Judge Ramos found that S.B. 5 “[did] not meaningfully expand the types of photo IDs that can qualify,” even though she had previously criticized Texas for “having the most restrictive list in the country.” While S.B. 5 permitted those without an acceptable ID to vote after signing a “Declaration of Reasonable Impediment,” the court found that piece of the law “trades one obstacle to voting with another—replacing the lack of qualified photo ID with an overreaching affidavit threatening severe penalties for perjury.” Judge Ramos further reasoned that “requiring a voter to address more issues than necessary under penalty of perjury and enhancing that threat by making the crime a state jail felony appear to be efforts at voter intimidation.” (Unsurprisingly, Texas has requested a stay of Judge Ramos’s decision, so that it can enforce the law pending appeal.)

The fact that DOJ sided with Texas on this matter is unsettling. Even more concerning, however, is that the DOJ’s position in this case does not appear to be an anomaly. Earlier this month, DOJ reversed its position in another key voting rights case, Husted v. A. Philip Randolph Institute, which will be heard by the Supreme Court in the upcoming term. In Husted, the state of Ohio has appealed the Sixth Circuit’s conclusion that Ohio’s method of purging voters was unlawful under the National Voter Registration Act (NVRA) and the Help America Vote Act (HAVA), both of which prohibit states from purging voters due to a failure to vote in previous elections.

Notably, the question in Husted is one of statutory interpretation. In 2016, DOJ filed an amicus brief in the Sixth Circuit urging the court to adopt its interpretation of NVRA and HAVA. DOJ’s brief argued that the correct interpretation of the NVRA is that a state can begin the removal process only after reliable evidence that the voter has moved, not after the voter has declined to vote within the preceding two years. That amicus brief was well-supported by the text, history, structure, and purpose of the NVRA, and was signed by career attorneys at DOJ. It reflected DOJ’s considered legal view.

On August 7th, however, the Acting Solicitor General submitted an amicus brief to the Supreme Court reversing DOJ’s position and siding with Ohio. The brief acknowledges that after the “Court’s grant of review and the change in Administrations, the Department reconsidered the question.” Notably, career attorneys at DOJ did not sign onto the new brief.

It is clear that these reversals are part of a larger trend in voting rights policy at DOJ. As we previously reported, President Trump’s budget proposal eliminated key language promising to use the Civil Rights Division to focus on “detecting and challenging practices that violate Section 2 of the Voting Rights Act.” Such an approach is concerning, especially given that Section 2 of the VRA is now the primary vehicle used to challenge racially discriminatory voting practices after Shelby County v. Holder. DOJ’s recent reversals suggest that its priorities may extend beyond limiting Section 2 claims, and may encompass limiting voting rights claims under longstanding federal laws like the NVRA--and even, perhaps, under the U.S. Constitution.

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