Texas Gets the Best Deal It Could with DOJ on Voter ID for the Election

Courts - Justice statue from below

This column by ACRU Policy Board member Hans von Spakovsky was published August 10, 2016 by The Daily Signal.

It looks as if Texas, the Justice Department, and all of the other parties, including the NAACP, involved in the challenge to the state’s voter ID law have worked out an interim settlement —- and the district court judge approved the deal today after a telephonic hearing Wednesday morning. That deal is probably about the best deal Texas could expect to get given the circumstances and personalities in the case.

In Veasey v. Abbott, Texas (and the cause of election integrity) suffered a blow three weeks ago when the 5th U.S. Circuit Court of Appeals held that the voter ID law violated Section 2 of the Voting Rights Act because it supposedly had a discriminatory effect, despite the fact that there was no evidence that the ID law had diminished turnout in Texas elections.

In fact, as the dissent pointed out in the appeals court, “despite extraordinary efforts,” neither the Justice Department nor any of the other so-called civil rights organizations who sued were able to uncover any Texas voters who were unable to vote because of the law.

The 5th Circuit sent the case back down to the district court to fashion a remedy for the small number of Texans who the court claimed could not obtain the free ID that the state issues to anyone who doesn’t already have one. It also told the district court to “re-examine” the evidence on whether the Texas Legislature had intentionally discriminated when it passed this law.

The district court judge, Nelva Gonzales Ramos, a 2011 President Barack Obama appointee, had found Texas guilty of purposeful discrimination even though, as the dissent noted in the appeals court, “the multi-thousand page record yields not a trace, much less a legitimate inference, of racial bias by the Texas Legislature.”

Ramos even made the bizarre claim that the voter ID law was a prohibited poll tax, despite the state providing free IDs to its residents. Fortunately, that wacky ruling was thrown out by the 5th Circuit.

However, on Aug. 3, the parties in the case filed a “Joint Submission of Agreed Terms” with Ramos. In it, the parties have agreed that Texas voters who don’t have one of the acceptable photo IDs under the statute will still be able to vote if they:

present a valid voter registration certificate, a certified birth certificate, a current utility bill, a bank statement, a government check, a paycheck, or any other government document that displays the voter’s name and an address and complete and sign a reasonable impediment declaration.

The “reasonable impediment declaration” is a reference to the type of form that is used in South Carolina, which also has a voter ID law. If a voter shows up at a polling place without an ID, he or she is able to vote upon completion of a form in which the voter declares that there was a “reasonable impediment” that prevented him from getting an ID.

This provision of South Carolina’s voter ID law was upheld as perfectly acceptable and not a violation of the Voting Rights Act by a three-judge federal panel in 2012 in South Carolina v. United States, a case in which South Carolina successfully challenged the Justice Department’s refusal to approve the ID law.

What is bizarre about this is that the North Carolina Legislature copied that “reasonable impediment” exception in its voter ID law, and yet a three-judge panel of the 4th U.S. Circuit Court of Appeals recently held that law to be a violation of the Voting Rights Act.

The North Carolina decision, NAACP v. McCrory, directly conflicts with the 2012 South Carolina decision. But that earlier loss by the Justice Department may help explain why it has agreed to this settlement with Texas that uses the same “reasonable impediment” exception that the 4th Circuit just invalidated.

Texas actually managed to get better terms than either North or South Carolina since, in addition to completing a “reasonable impediment” declaration, the voter will have to show some kind of document such as a utility bill or bank statement with his name and address.

This actually copies a provision in the federal Help America Vote Act of 2002, 52 U.S.C. § 21083(b), which requires any individual who registers to vote by mail to provide a copy of a “utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.”

It is not as good as a government-issued photo ID, but this is probably about the best that Texas could get given the federal judges it is dealing with in the 5th Circuit. And it is difficult for the Justice Department to claim that a requirement modeled on a federal voting requirement is discriminatory.

Texas is also asking that language be included in the interim order issued by the district court judge that makes it clear that the state is not waiving any of its rights to seek appellate review of the decisions that have been issued in this litigation. It also wants it explicitly laid out that the Texas Legislature will not in any way be limited from fashioning its own remedy or otherwise amending the voter ID law when it returns for its 2017 session.

From the standpoint of Texas, this is probably the best deal it could get. The earlier ruling of Ramos displayed a bias against voter ID laws in general , as evidenced by her apparent belief that there are no rational reasons for a legislature to pass a voter ID law other than to discriminate against minority voters.

Fortunately, she approved the deal Wednesday. She did not approve the requested language about the Legislature, but a source tells me that she apparently recognized from the bench that she can’t prevent the Legislature from acting in the future.