Erik (HASH) Hersman via Flickr creative commons
If this week’s news that the federal Fifth Circuit appeals court struck down Texas' Voter ID law felt like deja vu, there's a pretty good reason for that.
Ever since the Republican majority rammed the law through the legislature in 2011, what's been widely considered the strictest voter ID law in the nation has made more than one brain-twisting trip up and down the legal ladder. Wednesday marked the second time judges on the notoriously conservative Fifth Circuit court have echoed a lower ruling that called the voter ID requirements in Senate Bill 14 an unconstitutional burden on the right to vote that carries an “impermissible discriminatory effect against Hispanics and African Americans.”
Most of the Fifth Circuit judges agreed last week that Texas' law currently violates the Voting Rights Act, sending the case back down to a lower court with instructions to tweak the state's rules ahead of November's presidential election. But in a flood of concurring and dissenting opinions, the Fifth Circuit judges also vehemently argued over another question central to the case: Did lawmakers pass the law knowing, even hoping, that it could suppress the black and brown vote?
The latest challenge to the voter ID rules ultimately went before Corpus Christi federal district court Judge Nelva Gonzales Ramos, who after a 2014 trial issued a 147-page opinion that condemned the law as a discriminatory, unconstitutional modern day poll tax. As Ramos wrote:
“The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African Americans and was imposed with an unconstitutional discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll tax."
To support her finding that the law was passed with a “discriminatory purpose,” Ramos leaned heavily on Texas’ long track record of racist voting laws that discriminated against people of color, such as all white primaries until 1944, poll taxes until 1966, or literacy tests and secret ballots until the 1970s. Ramos also honed in on Waller County for more recent examples of official racism. For instance, a local law prohibiting people from voting unless their families’ owned land in the county was apparently enforced until the early 1990s, when the local district attorney came under fire for prosecuting a student from Prairie View A&M, a historically black school, for “illegally voting” (charges were dropped after the U.S. Justice Department stepped in).
On Wednesday, Fifth Circuit basically punted on the question of whether lawmakers intentionally passed a law that discriminated against minorities. The plurality opinion, cobbled together from no less than six separate dissenting and concurring opinions by various judges on the court, sent the issue of "discriminatory intent" back down to Ramos' court, saying she got it wrong the first time but that there's still too much evidence that lawmakers knowingly passed a racist law to completely ignore the issue.
“We recognize that evaluating motive, particularly the motive of dozens of people, is a difficult enterprise," wrote Judge Catharina Haynes. "We acknowledge the charged nature of accusations of racism, particularly against a legislative body, but we must also face the sad truth that racism continues to exist in our modern American society despite years of laws designed to eradicate it.”
In her opinion, Haynes says the precedent set by the U.S. Supreme Court requires that judges look at a number of factors when determining whether a law was deliberately passed for the purpose of discrimination — like the legislative history of a bill, any contemporaneous statements from lawmakers supporting the bill, and whether lawmakers took any extraordinary steps to pass it.
Ramos' ruling appeared to check most of if not all of those boxes. Lawmakers passed the voter ID requirements despite repeated warnings from opponents that Senate Bill 14 would disenfranchise poor and minority voters, something some proponents of the law even publicly admitted would probably happen.
Add to that the fact that the GOP-dominated legislature passed Senate Bill 14 in order to solve something that wasn't a problem in the first place (out of 20 million votes cast in the decade leading up to the bill’s passage, there were only two convictions for in-person voter fraud in the entire state). Hanyes' opinion also says the bill's supporters went to extraordinary lengths to pass the voter ID restrictions — then-Gov. Perry labeled it an "emergency item" for quick consideration, the state senate suspended a longstanding rule to pass it, and both chambers bypassed the normal committee process to rapidly bring the bill to a vote. “Such treatment was virtually unprecedented," Haynes wrote.
In addition to outlining the state's history of racist voting laws, the lower court ruling had also pointed to other times Texas has run afoul of the Voting Rights Act, particularly in the area of redistricting. In her opinion Wednesday, Haynes even acknowledged that in every redistricting cycle since 1970, Texas has been found to have violated the Voting Rights Act with racially gerrymandered districts.
Of course, some judges on the most conservative appeals court in the country think the question of racist intent is absurd and should have been completely tossed by the appeals court. Among them is Judge Edith Jones, who has herself come under fire
for past remarks about blacks and Hispanics being “prone” to commit acts of violence.
In her lengthy dissent, Jones wrote that by keeping the question of discriminatory intent alive, “the majority fans the flames of perniciously irresponsible name-calling.” She then compared judges who disagree with her to “Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the truth.”