Take Care is privileged to publish this post by Gerry Hebert, Director of Voting Rights & Redistricting at Campaign Legal Center, and Danielle Lang, Deputy Director of Voting Rights at CLC.  Danielle and Gerry are private plaintiffs' counsel in Veasey v. Abbott, the case discussed in this post.

Yesterday, a federal district court held, again, that Texas’s strict voter ID law, SB 14, was enacted with discriminatory intent. The district court initially held that the law was intentionally discriminatory after a nine-day trial in 2014. At trial, the Department of Justice and private plaintiffs introduced evidence that the law’s strict design—picking and choosing which IDs to accept and reject—was crafted to impose unnecessary, significant, and disproportionate burdens on minority voters. The Fifth Circuit Court of Appeals, sitting en banc, affirmed the finding of discriminatory results but sent the intent finding back to the district court for a reweighing of the evidence. The Fifth Circuit held that some of the intent evidence was “infirm”—i.e. not proper to consider—but also wrote at length about the significant and persuasive evidence that could fully support an intent finding. After reweighing the evidence—giving no weight to the evidence the Fifth Circuit deemed infirm—the District Court came to the same conclusion: the uneven burdens SB 14 placed on minority voters were not an accidental effect of the law but part of its purpose.

With so much legal news flooding in every day, it’s hard to see the forest for the trees. But this is an important development. First, this finding provides a strong basis for the Court to strike down the law in its entirety. The Texas Legislature is currently considering amendments to their voter ID law, SB 5. But SB 5 builds on the structure of SB 14, a law the district court just held (again) was drafted to harm minorities.

Moreover, this is the second time in just a few weeks that a federal court has held that the Texas Legislature acted intentionally to harm minority voters. Last month, a three-judge federal court held that Texas’s redistricting plan, also enacted in 2011, was designed to harm minorities. These rulings will be relevant to future VRA cases in these jurisdictions, since the VRA recognizes that discrimination against minority voters is often cumulative in its harm.

Finally, these intent holdings could also result in the state being placed back under Voting Rights Act preclearance, which would require the state to submit any voting changes to the Department of Justice to ensure that they would not harm minority voters’ access to the political process. Pursuant to Section 3 of the Voting Rights Act, courts can “bail-in” states and jurisdictions into the preclearance regime if they engage in intentional discrimination. Texas was under preclearance from 1965 until 2013, when the Supreme Court in Shelby County v. Holder struck down the formula for determining which states were covered by preclearance. The Supreme Court’s opinion in Shelby County suggested that the coverage formula was unfairly based on old evidence of 1960s era discrimination but many covered jurisdictions seem intent to prove the Court wrong. The Fourth Circuit held last year that North Carolina’s omnibus voter suppression law targeted minorities “with almost surgical precision.” A conservative district court judge also recently bailed-in a city in Texas, Pasadena, after finding that it purposefully sought to minimize Latino voting power. With these intent rulings, the list is only growing longer.

Unfortunately, this is not a victory shared with the Department of Justice. After five years of arguing that SB 14 was crafted with discriminatory intent, the Department withdrew its claim in February. Luckily, the courts have held fast to their obligation to root out discrimination, even as the DOJ appears prepared to abandon that responsibility. 

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