[EL] Breaking: 5th Circuit to Hear Texas Voter ID Case En Banc, And This Could Be Final Court to Hear Case
Rick Hasen
rhasen at law.uci.edu
Wed Mar 9 15:19:23 PST 2016
Breaking: 5th Circuit to Hear Texas Voter ID Case En Banc, And This
Could Be Final Court to Hear Case <http://electionlawblog.org/?p=80712>
Posted onMarch 9, 2016 3:15 pm
<http://electionlawblog.org/?p=80712>byRick Hasen
<http://electionlawblog.org/?author=3>
It is not clear what internal deliberations were taking place at the 5th
Circuit which took the Court more than 5 months to issue this order, but
the full 5th Circuit will consider Veasey v. Abbotten banc by the full
court
<http://www.politico.com/f/?id=00000153-5d9e-d206-af7b-df9e10810001>.
Veasey was significant because this was a case where the court gave a
narrow but real victory to voter id plaintiffs in finding a Voting
Rights Act Section 2 violation. The stakes are especially high because
this is a case which could divide 4-4 before the current Supreme Court,
meaning what the entire 5th circuit does may be the final word on
Texas’s law.
Given the makeup of the 5th Circuit, as well as the panel members in the
original decision, it is not clear how the panel will vote in this case,
but if I were plaintiffs I would not be too happy with this order.
There is also the issue of timing—the Fifth Circuit will rule, and who
knows how close this will be to the election, and if the Court will let
the voter id law be in effect for this election. One can imagine judges
on the 5th Circuit who want Texas to use the voter id law in this
election to drag their feet long enough to assure a decision does not
come until after the election.
Here ismy analysis <https://electionlawblog.org/?p=74972>of the earlier
panel decision:
A unanimous panel of the United States Court of Appeals for the
Fifth Circuit has issuedan opinion
<http://electionlawblog.org/wp-content/uploads/texas-5th-cir.pdf>which
is a great (but not complete) victory for those challenging Texas’s
strict voter id law. The court affirms that the law violates Section
2 of the Voting Rights Act, but rejects the claim of discriminatory
purpose and that the law constitutes a poll tax. The court remands
for more findings on discriminatory purpose and for a decision on
the remedy to the Section 2 violation. That remedy could allow Texas
to keep enforcing its law for most people, so long as it gives ways
to vote for those who face burdens under the law.
This is a narrow but important victory coming on the eve of the 50th
anniversary of the passage of the Voting Rights Act.
As I noted when this panel was drawn, this is a relatively liberal
panel in the 5th Circuit. [Note: the original version of this post
referred to the panel as the “most liberal” and upon hearing from a
lot of folks who follow the Fifth Circuit more than I do, this is
incorrect.]
It is quite possible that Texas will try to take this case en banc
to the full 5th Circuit, or perhaps to the Supreme Court. It is also
possible that Texas would let this play out in another round at the
district court and then appeal, but that seems less likely.
This also strikes me as an opinion written as narrowly as possible
to still give a victory to the plaintiffs. (Perhaps that was the
price of a unanimous opinion?) Winning on a Section 2 claim, even
given the narrow remedial scope (more on that below) is still a
significant victory for Voting Rights plaintiffs and the Department
of Justice. We will see if it holds.
Here is some more detailed analysis of the case:
1. */Discriminatory purpose/. *In a key loss for plaintiffs, the 5th
Circuit remanded the question of racially discriminatory purpose to
the trial court, under a standard that will likely be very hard to
meet. Discriminatory purpose matters for a really important reason:
not only will lead to a finding of the law’s unconstitutionality and
violation of section 2 of the Voting Rights Act, it can also provide
the basis (under Section 3 of the Act) for the court to order Texas
“bailed-in” for federal oversight (“preclearance”) for up to 10
years. The 5th Circuit started its purpose analysis by noting: “We
recognize the charged nature of accusations of racism, particularly
against a legislative body, but we also recognize the sad truth that
racism continues to exist in our modern American society despite
years of laws designed to eradicate it.” It said that the trial
court erred in finding discriminatory purpose based upon (1) old
evidence of Texas’s official racial discrimination in voting; (2)
statements from opponents of the law about the purpose of the
majority passing it; and (3) post-enactment statements, again mostly
by opponents of the law. It said the trial court needs to find
stronger evidence of contemporaneous statements and actions of the
legislature in reaching this decision. So this issue gets remanded,
but the onerous standards means it will be very tough to prove such
purpose.
2.*/Discriminatory effect under Section 2./*This is the big win for
the plaintiffs. The 5th Circuit adopted the two part “vote denial”
test for Section 2 claims used by the 4th and 6th circuits (which is
probably the standard that the trial court in the North Carolina
voter id case will apply). Applying the test, the 5th Circuit
affirmed the trial court’s finding of a Section 2 violation. It
upheld the finding that the law will have a discriminatory impact on
minority voters—that is, minority voters are disproportionately
likely to lack one of the types of ID which are allowed under Texas
law. Then, applying the “totality of circumstances”
test//Gingles/Zimmer//Senate factors, the 5th Circuit found enough
evidence to sustain a finding that SB 14 “produces a discriminatory
result that is actionable because [it] . . . interact[s] with social
and historical conditions in Texas to cause an inequality in the
electoral opportunities enjoyed by African-Americans and Hispanic
voters.” Particularly interesting in this analysis is the question
whether Texas’s explanations for why it needed its law (antifraud,
voter confidence) were tenuous. The trial court found that they were
because the evidence did not support the need for voter id for
either of these purposes, and this factor worked in favor of finding
of a Section 2 violation. Also interesting is that the 5th Circuit
relied (as I anticipated <http://electionlawblog.org/?p=73758>) on
the Supreme Court’s recent Texas housing case in finding enough
evidence of disparate impact. “As such, we conclude that the
district court did not clearly err in determining that SB 14 has a
discriminatory effect on minorities’ voting rights in violation of
Section 2 of the Voting Rights Act. As discussed below, we remand
for a consideration of the appropriate remedy in light of this
finding in the event that the discriminatory purpose finding is
different.”
3. */First and Fourteenth Amendment violations. /*Using the
principle of constitutional avoidance, the 5th Circuit refused to
consider whether the laws violated the fundamental right to vote, an
issue which could be revived if, for example, an en banc 5th Circuit
rejects the panel’s views on the Section 2 violation.
4. */Poll tax. /*The court rejected the poll tax argument, in part
because since the district court decision Texas amended its law to
get rid of a payment to get underlying documents to get a state
issued id. “As amended by SB 983, Texas law no longer imposes any
direct fee for any of the documentation required to obtain a
qualifying voter ID.” The court also held the indirect costs of
voting could not constitute a poll tax. The court added this: “This
record reveals that Plaintiffs and those who lack both SB 14 ID and
underlying documentation face more difficulty than many Texas voters
in obtaining SB 14 ID. Plaintiffs and others similarly situated
often struggle to gather the required documentation, make travel
arrangements and obtain time off from work to travel to the county
clerk or local registrar, and then to the DPS, all to receive an
EIC. These greater difficulties receive consideration in the Section
2 discriminatory effect analysis, but Supreme Court jurisprudence
has not equated these difficulties, standing alone, to a poll tax.”
5. */Remedy. /*The 5th Circuit held that a remedy after a finding of
discriminatory effects should be narrower, and more deferential to
the state, than one where there is also a finding of discriminatory
purpose. The 5th Circuit strongly suggests that if the trial court
on remand finds no discriminatory purpose, it needs to consider a
narrower remedy than simply declaring the voter id law as something
which cannot be used under any circumstances:
“Clearly, the Legislature wished to reduce the risk of in-person
voter fraud by strengthening the forms of identification presented
for voting. Simply reverting to the system in place before SB 14’s
passage would not fully respect these policy choices—it would allow
voters to cast ballots after presenting less secure forms of
identification like utility bills, bank statements, or
paychecks./See/TEX. ELEC. CODE§ 63.001(b) (West 2010). One
possibility would be to reinstate voter registration cards as
documents that qualify as acceptable identification under the Texas
Election Code. The court could also decree that, upon execution of
an affidavit that a person does not have an acceptable form of photo
identification, that person must be allowed to vote with their voter
registration card.” This considerably narrows the scope of a Section
2 victory.
6.*/Timing./*//The court cautions that this case should not run up
against election deadlines, as it did last time, raising “Purcell
principle
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>”
issues: “We urge the parties to work cooperatively with the district
court to provide a prompt resolution of this matter to avoid
election eve uncertainties and emergencies.”
7. */A Constitutional Challenge to Section 2 for the Supreme
Court//? /*Lurking in a footnote is the 5th Circuit’s rejection of
the argument that if Texas voter id law violates Section 2 of the
Voting Rights Act, then Section 2 is unconstitutional. The issue is
one the 5th Circuit likely won’t address, but it could come up for
the Supreme Court. (FN 24: “To the extent the State argues that the
“results” test is unconstitutional, we note that this court and many
others have upheld its constitutional validity./See, e.g./,/Vera/,
517 U.S. at 990–91 (collecting cases upholding Section 2’s
constitutionality);/Jones/, 727 F.2d at 373–74. “Congressional power
to adopt prophylactic measures to vindicate the purposes of the
fourteenth and fifteenth Amendments is unquestioned” and “[o]n those
occasions when the Court has stricken enactments as exceeding
congressional power under the enforcement clauses of the fourteenth
or fifteenth amendments, the congressional objective has usually
deviated from the central purposes of those amendments—to ensure
black equality.”/Jones/, 727 F.2d at 373–74. We are bound by these
precedents to conclude that Section 2, as applied here, does not
deviate from that purpose.”).
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<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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