A divided panel of one of the most conservative federal courts in the country held on Friday that a Texas voter suppression law is legal and should remain in effect. Moreover, should Judge Edith Jones’ reasoning for the panel be embraced by the Supreme Court, it could enable state lawmakers to rescue laws enacted for the very purpose of disenfranchising voters of color.
Friday’s decision in Veasey v. Abbott is the latest in a long saga of litigation challenging Texas’ voter ID law. Voter ID is a common method of voter suppression that is favored by many Republican lawmakers because it is especially likely to disenfranchise groups — such as students, poor voters, and voters of color — who tend to prefer Democrats over Republicans. Though experts disagree upon just how much voter ID laws skew the electorate to the right, even conservative estimates conclude that they can shift the final results of an election more than a percentage point towards Republicans.
Although voter ID’s defenders typically defend the laws as necessary to prevent voter fraud at the polls, such fraud barely exists. As ThinkProgress previously explained, “a two-year investigation conducted by an Iowa Republican elections official . . . uncovered zero cases of in-person voter fraud. The lead opinion in a Supreme Court case enabling voter ID laws was only able to cite one example of in-person fraud over the course of 140 years.”
Similarly, as courts determined in earlier proceedings in the Veasey litigation, Texas only convicted two people of in-person voter fraud out of 20 million votes cast in the decade before the state enacted a strict voter ID law.
Texas initially enacted a strict voter ID law in 2011. Five years later, the full United States Court of Appeals for the Fifth Circuit held that this law violates the Voting Rights Act’s prohibition on laws that result “in a denial or abridgment of the right of any citizen . . . to vote on account of race or color.” As the Fifth Circuit explained, in Texas, “Blacks were 1.78 times more likely than Whites, and Latinos 2.42 times more likely, to lack” voter ID.
The appeals court also sent the case back down to a trial court, to reexamine whether the law was enacted for the purpose of discriminating on the basis of race. Among other things, if Texas were caught intentionally engaging in racial voter discrimination, it could be placed under federal supervision and forced to “preclear” any new voting laws with officials in Washington, DC.
Then, about a year ago, the trial court concluded that, yup, Texas’ law was enacted with racist intent. Judge Jones’ opinion for the Fifth Circuit does not so much contest this finding as render it meaningless.
Jones relies heavily on the fact that, in 2017, Texas enacted a new voter ID law watering down the stricter 2011 law. After the Fifth Circuit struck down Texas’ original 2011 law, the trial court allowed Texas to implement a weaker form of its voter ID law for the 2016 election — essentially, Texas could demand that voters show photo ID, but voters who were unable to obtain an ID could sign an document explaining why and still be allowed to vote.
The 2017 law largely tracks the interim remedy announced by the court in 2016, although it only allows people without photo IDs to cast a ballot if they lack the ID for one of seven defined reasons. Voters without IDs also must sign this document under threat of perjury charges, potentially intimidating voters against casting a ballot.
Nevertheless, Judge Jones argues that the 2017 amendments to the 2011 law effectively washes it clean of sin. “Unless remedial legislation designed to address voting rights violations is itself infected with a discriminatory purpose,” Jones claims, “federal courts are obliged to defer to the legislative remedy.”
The thrust of Jones’ opinion, in other words, is that, even though a federal court determined that Texas enacted strict voter ID for the purpose of discriminating against minorities, the state’s entire voter ID regime will be deemed free of racist intent — unless the plaintiffs can prove once again that the new law was enacted for a racist purpose.
That won’t wash away the Fifth Circuit’s previous decision striking down the 2011 law, but it will make it very difficult to sustain a finding that a law was enacted with racist intent. Without such a finding, courts will only be able to hand down limited remedies protecting victims of racial voter discrimination.
Proving invidious intent is always challenging. Judges are not mind-readers, and the task of divining illegal intentions from a complex legislative process involving dozens of lawmakers is inherently difficult. Judge Jones’ standard effectively requires plaintiffs to run through this gauntlet twice when a state amends a racist law.
Indeed, Jones’ standard could potentially force them to clear this difficult hurdle over and over again. Under Jones’ opinion in Veasey, a state could enact a law for the very purpose of keeping many voters of color from the polls. Then, when they are caught doing so by a federal court, they could enact very minor amendments that do little to fix the underlying law. Courts would then be obligated to defer to this non-solution, unless the plaintiffs could prove that the amendments were motivated by racism.
And even if the amended law is struck down, the state could just respond with a new set of largely cosmetic amendments. And state lawmakers could repeat the process over and over again until it they are fortunate enough to draw a friendly panel of judges inclined to permit voter suppression in the first place.
Lest there be any doubt, Jones is emphatically such a judge. Though the Fifth Circuit voted 9-6 that Texas’ 2011 voter ID law violates the Voting Rights Act, Jones wrote a caustic dissent demanding that the Texas legislature be given a presumption of white racial innocence.
“By keeping [the discriminatory intent] claim alive,” Judge Jones wrote, “the majority fans the flames of perniciously irresponsible racial name-calling.” She then compared the nine judges in the majority to “Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the ‘truth.’”
Now that Jones has had her say, Veasey is very likely to wind up before the Supreme Court. As Judge James Graves points out in dissent, Jones’ presumption of racial innocence is at odds with a Fourth Circuit decision striking down North Carolina’s amended voter ID law. Typically, when federal appeals courts disagree on the same legal question, the Supreme Court takes up the case.
That’s not good news for Americans who believe that governments derive “their just powers from the consent of the governed.” In 2016, when the Supreme Court had only eight members, all four of the Court’s Republicans voted to reinstate North Carolina’s omnibus voter suppression law. Chief Justice John Roberts later wrote an opinion implying that he would uphold such a law. And the ninth seat on the Supreme Court is now occupied by Neil Gorusch, a man who makes the late Justice Antonin Scalia look like Fannie Lou Hamer.