[EL] Texas voter id ruling

Fri Apr 27 16:33:25 PDT 2018

In my post on the Texas redistricting cases
<http://electionlawblog.org/?p=98793> earlier this week, I highlighted one
reason why Judge Jones’ analysis of the section 3 issue is dangerous: it
takes any teeth out of plaintiffs’ abilities to confront intentional
discrimination when a jurisdiction can reap the benefits of the
discriminatory law while fighting and delaying resolution.  Under Judge
Jones’ structure, there’s little incentive *not* to discriminate, as long
as the officials implementing the law calculate that they’ll be marginally
better off in the interim between passage of the law and the imposition of
an eventual remedy.  And under this structure, section 3 becomes completely
impotent.  We’re back to whac-a-mole.

In light of the 5th Circuit’s decision, seems like an opportune time to
plug Josh Douglas’s and Michael Solimine’s excellent (and exceedingly
timely) article
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3099771> on
three-judge courts’ interaction with circuit decisions.  Depending on what
happens at SCOTUS with the Texas redistricting case argued earlier this
week, the three-judge Texas redistricting court may well find that it is
asked to confront Judge Jones’ opinion about the impact of a later-enacted
law.  And then the three-judge court is going to have to decide exactly how
much attention to pay to that 5th Circuit opinion, which is what Josh and
Michael lay out in interesting detail.

Justin

*From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
Behalf Of *Rick Hasen
*Sent:* Friday, April 27, 2018 3:12 PM
*To:* Election Law Listserv <law-election at uci.edu>
*Subject:* Re: [EL] Texas voter id ruling

The reference to judge Costa below should be Prado.

*From: *Law-election <law-election-bounces at department-lists.uci.edu> on
behalf of Rick Hasen <rhasen at law.uci.edu>
*Date: *Friday, April 27, 2018 at 3:08 PM
*To: *Election Law Listserv <law-election at uci.edu>
*Subject: *[EL] Texas voter id ruling

Breaking and Analysis: Divided 5th Circuit Rejects Latest Challenge to
Texas’s Voter ID Law, But Prospect for Further Litigation Remains
<http://electionlawblog.org/?p=98859>

Posted on April 27, 2018 2:14 pm <http://electionlawblog.org/?p=98859> by *Rick
Hasen* <http://electionlawblog.org/?author=3>

You can find a majority opinion by Judge Jones, concurring opinion by Judge
Higginbotham, and dissenting opinion by Judge Graves in Veasey v. Abbott at
this link. <http://electionlawblog.org/wp-content/uploads/vease-opinion.pdf>

In what I consider to be a fundamentally disingenuous analysis by 5th
Circuit Judge Edith Jones, a divided 5th Circuit panel has not only held
that Texas’s replacement voter id law (enacted in response to an earlier
finding, upheld by the 5th Circuit that its original strict voter id law
violated the Voting Rights Act) is legal. It also has essentially precluded
the district court from putting Texas back under federal supervision for
its voting rules based on a finding of intentional discrimination in voting
on the basis of race. Judge Higginbotham’s concurrence makes nice noises
about the “race or party” question I have been writing about for a long
time, but in the end he does not appear to disagree with Judge Jones’s
conclusion that the district court cannot put Texas back under preclearance
based on an earlier finding of racially discriminatory intent. (Perhaps the
plaintiffs can seek clarification on rehearing on this point, and get Judge
Higgenbotham to open this back up.)

This ruling is likely to stand, because, despite the persuasiveness of
Judge Graves’s dissent, the Fifth Circuit’s partisan balance has changed
since the last go at this case, and an en banc process is likely to be
unsuccessful, and the Supreme Court is unlikely to get involved either.

Now the details.

After many years of fighting Democrats in the state legislature,
Republicans pushed through a very strict voter id law for voting, SB 14. A
group of voting rights plaintiffs, with the support of the US DOJ, argued
that the law violated both Section 2 of the Voting Rights Act and the
Constitution. The district court found both a racially discriminatory
effect under Section 2 as well as that the law was enacted with a racially
discriminatory intent. That latter finding was important for two reasons:
(1) it allowed the court not to defer on remedies, and it could throw out
the entire law; and (2) the finding could serve as a predicate for the
court, acting under Section 3 of the VRA, to put Texas back under
preclearance for up to 10 years for some or all of the changes to its
voting rules.

After a while, the case made it to the 5th Circuit sitting en banc, where a
majority of the strongly divided court held that the trial court was right
in finding a racially discriminatory effect, and another (somewhat
overlapping) majority of the court held that the trial court relied on some
improper evidence to figure out discriminatory intent, BUT there could well
be enough permissible evidence in the record to support such a finding.
Judge Jones dissented vociferously, believing there was no evidence of
discriminatory effect or intent and she would have ended the case right
there.

The 5th circuit remanded to the trial court. The Supreme Court refused to
get involved, but Chief Justice Roberts signaled
<https://www.supremecourt.gov/opinions/16pdf/16-393_4425.pdf> he would like
to when the case was final.

While the case was pending, the district court implemented an order which
softened Texas’s voter id law, including allow people to sign a statement
indicating that they had a reasonable impediment to voting. Texas later
enacted a new law, SB 5, which mostly (but not perfectly) tracked the
interim remedy established by Texas, which in my view, while not perfect,
was a great improvement on the old law.

The case went back to the trial court, and after the election of President
Trump the U.S. DOJ essentially switched sides. Texas and the U.S. took the
position that the enactment of SB 5 solved all the problems and mooted the
case. The district court disagreed, and held that this did not cure either
the problem of discriminatory effect or intent. It set a hearing on the
question of putting Texas back under federal supervision. A motions panel
of the 5th Circuit stopped the trial court’s action until the appeal could
be settled.

Both Judge Jones in her majority opinion and Judge Graves in dissent agreed
the case was not moot. Only Judge Higgenbotham said that it was. On the
merits, Judge Jones said that SB 5 cured any voting rights violation, and
that the trial court found no evidence the new law was passed with
intentional discrimination. Accordingly, there would be no basis for
putting Texas back under federal preclearance. She wrote: “Further, because
SB 5 constitutes an effective remedy for the only deficiencies testified to
in SB 14, and it essentially mirrors an agreed interim order for the same
purpose, the State has acted promptly following this court’s mandate, and
there is no equitable basis for subjecting Texas to ongoing federal
election scrutiny under Section 3(c). *See McCrory*, 831 F.3d at 241
(declining to impose relief under Section 3 of the Voting Rights Act and
noting ‘[s]uch remedies ‘[are] rarely used’. . . .’).”

It is here where Judge Jones was disingenuous. The trial court found,
looking at only proper evidence allowed by the 5th Circuit’s earlier
decision, that the original enactment of SB 14 was done with a racially
discriminatory purpose. As Judge Graves argues in dissent, this should have
been reviewed* for clear error* and there was no clear error. Thus, 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. Judge Jones just ignores all that and throw
out the right of plaintiffs in the first instance to seek Section 3 relief
before the district court.

And Judge Higgenbotham in his concurrence seems to go along. He argues the
whole case is moot, which my last paragraph shows it is definitely not on
the precelarance question. The rest of his opinion notes the race or party
problem (“The  difficulty lies in disentangling partisan advantage and
racial purpose when a party controls the legislature and racial minorities
are heavily invested in the opposite party.”) He then goes on to suggest,
that passing election laws on pure partisan grounds could well raise a
constitutional problem under strict scrutiny. (“Where, as here, the state
cannot show that its hurried pursuit of a so recently arrived fear of voter
fraud exists beyond the fantasy of political spin, its efforts can only be
described in terms of race or the pursuit of political advantage. Either
way, strict scrutiny is triggered—when the answer to the charge of racial
purpose is a claim that the true purpose was partisan advantage, the state
action fails for want of a legitimate purpose. This, because we have not a
dilution but an *outright denial *of the right to vote.”) There’s a lot to
like here, and Judge Higgenbotham cites my Harvard Law Review Forum piece
<https://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>
making
this point. But that doesn’t excuse what he’s done here.

Judge Graves makes excellent points in his lengthy dissent. But if this
case goes en banc, it is a tough road ahead. Remember that not only has
Judge Costa left (picked off by Trump as an ambassador for potentially
political reasons), there are now three deeply conservative judges now on
that court (Ho, Willettt and now Duncan). It is a tough road indeed there,
and at the Supreme Court. CJ Roberts was eager to get involved to help
Texas. He’s likely not going to be eager to help voting rights plaintiffs.

[This post has been updated.]

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9>, Voting Rights Act
<http://electionlawblog.org/?cat=15>

-- 

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

rhasen at law.uci.edu

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org
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