In this Wednesday, Feb. 26, 2014 photo, a voter shows his photo identification to an election official at an early voting polling site, in Austin, Texas. (AP Photo/Eric Gay)
Legal observers have suffered whiplash watching various courts go back and forth on whether Texas can enforce its new, highly restrictive voter ID law in this year’s midterm elections.
On Oct. 9, a federal district court ruled that the law, SB 14, had been passed with “discriminatory intent” — that Republican lawmakers had crafted it to disenfranchise minority voters — and struck it down as unconstitutional.
Texas Attorney General Greg Abbott — leading candidate in the state’s gubernatorial race — appealed the decision, and asked the Fifth Circuit Court of Appeals for a stay of the lower court’s ruling. Two Bush appointees ruled in the state’s favor, allowing Texas to enforce the law until the case’s ultimate resolution.
Civil rights advocates then submitted an emergency petition asking the Supreme Court to overturn the Fifth Circuit’s decision and put the new voter ID law on hold for the midterms. Early Saturday morning, the Court’s conservative majority denied the request.
The result is that on Nov. 4, Texas elections officials will accept a gun permit as proper identification, but not a college ID. An estimated 600,000 Texans will lack the documents required to cast their ballots, and a disproportionate number of them will be members of traditionally Democratic constituencies.
Just as she did following the majority’s decision in McCutcheon v. FEC earlier this year, Supreme Court Justice Ruth Bader Ginsburg issued a passionate dissent, charging that the Fifth Circuit had applied bad law to the decision that her conservative colleagues upheld. (Justices Sonia Sotomayor and Elena Kagan joined her dissent.)
Ginsburg argued that the decision “showed little respect for this court’s established stay standards.”
And she dismissed the substance of the argument:
In any event, there is little risk that the District Court’s injunction will in fact disrupt Texas’ electoral processes. Texas need only reinstate the voter identification procedures it employed for 10 years (from 2003 to 2013) and in five federal general elections. To date, the new regime, Senate Bill 14, has been applied in only three low-participation elections—namely, two statewide primaries and one statewide constitutional referendum, in which voter turnout ranged from 1.48 percent to 9.98 percent. The November 2014 election would be the very first federal general election conducted under Senate Bill 14’s regime. In all likelihood, then, Texas’ poll workers are at least as familiar with Texas’ pre-Senate Bill 14 procedures as they are with the new law’s requirements.
Ginsburg also noted that since last November, “Texas knew full well that the court would issue its ruling only weeks away from the election. The state thus had time to prepare for the prospect of an order barring the enforcement” of the new voter-ID requirements.
She also pointed out that even with the new voter ID law in effect, Texas officials might have blunted the burden it put on voters had they chosen to do so. Instead, Ginsburg charged that they did the exact opposite:
…the District Court found “woefully lacking” and “grossly” underfunded the State’s efforts to familiarize the public and poll workers regarding the new identification requirements. Furthermore, after the District Court’s injunction issued and despite the State’s application to the Court of Appeals for a stay, Texas stopped issuing alternative “election identification certificates” and completely removed mention of Senate Bill 14’s requirements from government Web sites.
“In short,” she concluded, “any voter confusion or lack of public confidence in Texas’ electoral processes is in this case largely attributable to the State itself.”
Ginsburg then explained why the Texas ID law will be “the strictest regime in the country.”
Texas will not accept several forms of photo ID permitted under the Wisconsin law the Court considered last week. For example, Wisconsin’s law permits a photo ID from an in-state four-year college and one from a federally recognized Indian tribe. Texas, under Senate Bill 14, accepts neither. Nor will Texas accept photo ID cards issued by the US Department of Veterans’ Affairs. Those who lack the approved forms of identification may obtain an “election identification certificate” from the Texas Department of Public Safety (DPS), but more than 400,000 eligible voters face round-trip travel times of three hours or more to the nearest DPS office. Moreover, applicants for an election identification certificate ordinarily must present a certified birth certificate… [which] can be obtained only at significant cost—at least $22 for a standard certificate sent by mail.
After detailing the District Court’s findings that the “Texas Legislature acted with a ‘troubling blend of politics and race’ in response to ‘growing’ minority participation,” Ginsburg then shot down the state’s justification for enacting the law, writing that there is only “a tenuous connection between the harms Senate Bill 14 aimed to ward off, and the means adopted by the State to that end.”
Between 2002 and 2011, there were only two in-person voter fraud cases prosecuted to conviction in Texas. Despite awareness of the Bill’s adverse effect on eligible-to-vote minorities, the Texas Legislature rejected a “litany of ameliorative amendments” designed to lessen the Bill’s impact on minority voters—for example, amendments permitting additional forms of identification, eliminating fees, providing indigence exceptions, and increasing voter education and funding—without undermining the Bill’s purported policy justifications.
Ginsburg wrote that, at the end of the day, “Texas did not begin to demonstrate that the Bill’s discriminatory features were necessary to prevent fraud or to increase public confidence in the electoral process.”
Ginsburg put the decision in the context of Texas’ “long history of official discrimination in voting, the statewide existence of racially polarized voting, the incidence of overtly racial political campaigns, the disproportionate lack of minority elected officials, and the failure of elected officials to respond to the concerns of minority voters.”
“The greatest threat to public confidence in elections,” she concluded, would result from “enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”
For more on Texas’ voter-ID law, and the Supreme Court’s decision, see The Brennan Center for Justice’s fact sheet.
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