//  7/10/17  //  Commentary

By Danielle Lang and Molly Danahy 

This spring, the district court held, for a second time, that Texas’s strict photo ID law (SB 14) was written with the purpose of burdening minority voters. The next step is clear: SB 14 must be struck in its entirety. Texas must return to its prior voter identification system, which accepted voter registration cards as identification and functioned well for decades.

Despite previously arguing alongside the private plaintiffs in the case, last week the DOJ filed a brief turning its back on minority voters and victims of discrimination in Texas. The DOJ’s brief represents a shameful retreat from protecting minority voters from intentional discrimination. Not only did DOJ drop its affirmative discriminatory purpose claim against Texas, it is now filing briefs in support of a racially discriminatory law.

In 2011, the Texas Legislature enacted the nation’s strictest voter photo ID law, SB 14. Three different federal courts found the law to have a discriminatory effect on minority voters in Texas, and in April Judge Ramos of the U.S. District Court of for the Southern District of Texas reaffirmed her earlier finding that the law was passed with the invidious purpose of discriminating against black and Latino voters in the state.

Texas is now and the DOJ are now arguing that a new law passed by the legislature just last week, SB 5, completely cures any harm suffered by Texans who were purposefully disenfranchised under SB14 over the past six years.

The DOJ brief bends over backwards to adopt Texas’s position that the reasonable impediment declaration process adopted in SB 5 completely cures the intentional discrimination at the heart of SB 14. But SB 5 does not repeal or replace SB 14, it keeps the racially discriminatory structure of SB 14 intact.

SB 14 was designed to impose a significant burden on minority voters’ ability to cast a ballot in Texas, by limiting acceptable forms of photo identification to a select list. In crafting the list of acceptable IDs, the legislature ensured the burden fell overwhelmingly on minority voters by specifically excluding forms of ID they were likely to hold, while including forms of ID (such as a concealed weapons permit) predominately held by whites. SB 5 adds an affidavit procedure but does not alter the discriminatory list of “acceptable” IDs.  In other words, the only voters that have to go through the affidavit process are those who were initially targeted by the Legislature’s discriminatory picking and choosing of “acceptable” IDs. Minority voters should not be targeted for additional burdens based on purposeful discrimination.

Importantly, CLC and others represent private plaintiffs in the case that continue to press for the only appropriate remedy: the elimination of the intentionally discriminatory SB 14 strict photo ID law.

First, as has generally been the practice when courts determine that a law purposefully discriminates against racial minorities, the court could strike down SB 14 in its entirety, sending Texas back to the drawing board. SB 5 is nothing more than an amendment of SB 14 and therefore cannot be enforced separately and must be enjoined as well. Thus, Texas would be ordered to return to its prior, well-functioning, identification procedures for voting. Rather than continuing to rely on a list of acceptable IDs created with discriminatory intent, if Texas wants a new voter ID procedure, it must draft a racially neutral voter ID law, one that strikes a fair balance between any non-discriminatory purpose and the burden imposed on voters.

Second, the court may consider placing Texas back under federal oversight under Section 3(c) of the Voting Rights Act. Section 3 was designed as a mechanism through which jurisdictions could be placed under federal oversight if they engaged in intentional discrimination against minority voters. After the Supreme Court struck down the preclearance formula in Section 4 of the VRA in Shelby County, gutting the prior effective preclearance process and freeing many jurisdictions from necessary oversight, Section 3(c) currently provides the only avenue through which jurisdictions may be subjected to federal oversight.

Preclearance serves a unique purpose because it prevents jurisdictions from simply replacing one discriminatory voting measure with another, forcing voters into an endless cycle of litigation, and costing states hundreds of thousands of dollars defending discriminatory practices. Without preclearance, disenfranchised voters are often forced to challenge successive discriminatory procedures individually, often while continuing to suffer the discriminatory effects of the law during the pending litigation.

The litigation over SB 14 has gone on for six years, and it is not inconceivable that if Texas were successful in forcing a new challenge to SB 5, it could take several years before voters’ rights were vindicated. This is exactly the issue that Section 3(c) was designed to prevent. Bail-in under Section 3 allows courts to place proven bad actors under federal oversight for a discrete period of time, protecting voters from the “whack-a-mole” approach to enforcing their constitutional rights. This is why it remains a viable remedy for the plaintiffs in any case where the court finds intentional discrimination.

The DOJ’s brief reads like a brief on behalf of Texas, not one on behalf of discriminated-against minority voters. It represents yet another disappointing, though unsurprising turn away from the Voting Rights Division’s central mission of protecting minority voters from discrimination.

It is the court, however, who will ultimately make the determination of how to best protect minority voters in Texas. After reply briefing, the court is expected to rule on the matter later this summer. 

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