Federal Appeals Court Gives Thumbs-Up To Revised Texas Voter ID Law

A federal appeals court on Friday reversed a lower court’s decision to block Texas from implementing its revised voter ID law.

The decision from the U.S. Court of Appeals for the 5th Circuit will allow Texas to enforce the voter ID law called SB 5, passed in 2017. The measure aimed to fix the flaws in an earlier version of the law, SB 14, that had been blocked by federal courts because it discriminated against black and Latino voters.

Texas officials argued the new law was an adequate fix because it allowed voters without acceptable identification to present a range of documents to prove their identity as well as signing a declaration swearing that they didn’t have photo ID. But in August last year, U.S. District Judge Nelva Gonzales Ramos said the new law was still discriminatory because those who lacked ID “are subjected to separate voting obstacles and procedures.”

In a split decision, the 5th Circuit ruled that Ramos had incorrectly blocked the law on the basis that it continued the discrimination of the prior legislation. The lower court decision, the 5th Circuit wrote, should have been more deferential to the judgment of Texas officials.

“Under the circumstances of this case, the court had no legal or factual basis to invalidate SB 5,” Judge Edith Jones wrote for the 5th Circuit. She added, “[U]ntil a plaintiff pleads and proves some constitutional or statutory infirmity in SB 5, that law must be reinstated, and it affords a generous, tailored remedy for the actual violations found [in SB 14].”

Further, Jones wrote, the district court “overlooked SB 5’s improvements for disadvantaged minority voters” and made no finding that the state legislature “intentionally” discriminated in passing SB 5.

Texas Attorney General Ken Paxton (R) praised the appellate court’s decision on Friday, saying the state’s revised law “removes any burden on voters who cannot obtain a photo ID.”

“The court rightly recognized that when the Legislature passed Senate Bill 5 last session, it complied with every change the 5th Circuit ordered to the original voter ID law,” Paxton said in a statement.

Danielle Lang, an attorney at the Campaign Legal Center who represented the plaintiffs in the case, expressed disappointment in the 5th Circuit’s ruling, but noted that the litigation itself had made voting easier in Texas.

“Because of our brave clients and this litigation, voters statewide can never be turned away from the polls simply for lacking a certain type of photo ID,” she said in a statement. “With respect to the revised law, we are exploring all legal options. We will also work with our partners to ensure that voters are well-educated about their options and not deterred from exercising their right to vote by any confusion around the photo ID rules.”

In his dissent, Circuit Judge James Graves argued that the new law should remain blocked. He noted that SB 5 did not significantly expand the list of acceptable photo IDs and didn’t address the discriminatory issues with voter education that the courts had found with the original law.

“S.B. 14 is legislation borne out of a discriminatory purpose,” Graves wrote. “Even if S.B. 5 were, as Texas and the majority both claim, ostensibly to remove or otherwise lessen the discriminatory impacts of S.B. 14, it still does not change the reason — the discriminatory reason — why the State enacted a voter ID law in the first place. Should S.B. 5 be allowed to govern, its congenital defect would persist.”

The case, Veasey v. Abbott, was originally filed in 2013. It argued that SB 14’s photo ID requirements had been passed in 2011 with the intent to discriminate against minority voters and that the law violated the federal Voting Rights Act as well as the 14th and 15th Amendments to the U.S. Constitution. In 2014, Ramos found that the law was discriminatory, and Texas appealed to the 5th Circuit.

At the time, the circuit court upheld Ramos’ ruling that the law had a discriminatory effect, but sent the case back to her to reconsider whether it was passed with the intent to discriminate. In April 2017, she ruled that it was. That decision led some to speculate that Texas could be put back under the heightened supervision of the Voting Rights Act, which would mean the federal government would have to sign off on changes to the state’s election laws.

Richard Hasen, an election law professor at the University of California, Irvine, noted that Jones wrote in her opinion that Texas’ adoption of SB 5 meant that the state shouldn’t be put back under federal supervision. In a blog post, Hasen called that argument “disingenuous.”

“Even if Texas’s enactment of SB5 later on was not done with racially discriminatory intent, SB 14 was, and that alone could be the basis for the imposition of preclearance,” he wrote in a blog post. “Judge Jones just ignores all that and [throws] out the right of plaintiffs in the first instance to seek Section 3 relief before the district court.”

In the 2016 election, while the case was still moving through the courts, Texas implemented a voter ID measure that allowed people to present alternative forms of identification while swearing they did not have any of SB 14’s acceptable forms of ID. That measure became the basis for SB 5 last year.

“While we’re disappointed that the majority of the panel is letting Texas continue to use its new ID law, the ruling did not disturb the court’s findings that the original photo ID law was discriminatory,” said Ezra Rosenberg, co-director of the voting rights project at the Lawyers’ Committee for Civil Rights Under Law. “Texans deserve laws that make it easier, not harder, to vote.”

This story has been updated with comment from Richard Hasen.