As did many of the hot cases from last term, my prediction for the next hot Supreme Court case has Texas written all over it though it will probably not make it to the Supreme Court until the 2017 term. Veasey v. Abbott is about voter ID in Texas, and it addresses the question of whether what remains of the Voting Rights Act of 1965 after one of its pre-clearance provisions were gutted by 2013’s Shelby v. Holder decision can be effectively used to protect voting rights. In July, the 5th Circuit Court of Appeals said yes in an opinion written by Judge Haynes and joined by eight other circuit court judges. At least to a degree. The decision was a partial victory for solid and protected voting rights. And it elicited an angry principal dissent written by Judge Edith Jones which was joined by four other judges.
A little background is in order. Voting rights are protected by the Fifteenth Amendment to the Constitution which states:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.
The amendment also gives Congress the authority to pass appropriate legislation to protect that franchise from both outright denial or interference. The Voting Rights Act of 1965 (VRA) is the principle enforcement legislation of the Fifteenth Amendment. When the Supreme Court ruled that the provisions of the VRA that required states (like Texas) with a particularly ominous history of voting discrimination and their governmental units to submit election changes to the Department of Justice or the federal courts in Washington DC for pre-clearance approval before the changes could be implemented was unconstitutional, the author of the opinion, Chief Justice John Roberts tried to ameliorate the effect of the decision by suggesting that challenges to election changes could be made through Section 2 of the Act. Section 2 offers a litigation option for plaintiffs with standing to challenge election law changes on the basis that they violate the provision:
a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) [language minorities] of this title...
Unlike pre-clearance which was automatic and operated as a provisional stay on election law changes until approved by either the DC federal courts or the Justice Department, Section 2 is not automatic , works only insofar as there are willing plaintiffs willing to take on the expense of litigation, and is effective in preventing changes from going into effect only insofar as such a challenge can survive the arcane procedural requirements in place, to obtain a restraining order or injunction against implementation. No, it is not analogous to pre-clearance, not nearly as effective, the quality of the policing of election rule changes is questionable, and it was created simply as an option for challengers not satisfied with pre-clearance results. It should be noted that the VRA does offer at section 3 a procedure in which a federal court (as in any federal court—not limited to the federal courts in the District of Columbia) retains jurisdiction to pre-clear (or to accept Justice Department pre-clearance findings) any election change by any political unit found to have intentionally discriminated in its election laws, an issue in this section 2 case. If the district court on remand finds intentional discrimination and that finding holds up on appeal, Texas may have backed itself back into pre-clearance, but this time under section 3.
The voter ID requirement is in a provision of the Texas law known as Senate Bill 14 (SB 14). The bill requires, as is the current vogue among many states nationally, voters to present picture identification as a pre-requisite for voting in elections. Last year the 5th Circuit, ruling under Section 2, held the Texas law discriminatory in effect on minorities. Texas requested and got a rehearing before the entire fifteen person court and in a 9-6 decision the entire court found that the provision had a discriminatory effect on African Americans and Hispanics. As for intent, the district court had earlier found both intent and effect discrimination. While Judges Dennis and Costa would have accepted the district court’s intent holding, a plurality of seven of the 5th Circuit agreed that not all of the evidence of intent was solid and remanded the case back to Judge Nelva Gonzales Ramos for further review on the issue of intent discrimination. However, a majority of the court did believe that the record contained some evidence of intent of the Texas Legislature to discriminate. Among the evidence that the majority thought promising includes the fact that forms of ID more frequently held by minorities in Texas (government employment ID) do not qualify under the new law, and the fact that there is a paltry number of voter fraud claims in Texas and the Legislature’s decision to fast track that legislation over other important and impending bills. To the majority, this maneuver seemed dubious at best. It should be noted, however, that the Supreme Court has ruled that fraud prevention, whatever the attendant statistics in a particular state, is a legitimate reason to enact a voter ID law.
Now, about photo ID. A comment under a friend’s enthusiastic post of the court decision on her Facebook page asked the question, paraphrased here, amounting to “what’s the big deal about requiring identification?” It is a reasonable question. Texas voters will recall as recently as the 2012 election that one could walk up to the polling officer, show a voter registration card which does not have a photograph of the holder (or in the alternative, a drivers license, or student or government employee ID, each of which do have photographs of the holder, or a utility bill, a bank statement, a paycheck, a government document showing the voter’s name and address, or mail addressed to the voter from a government agency), receive a voting ticket and proceed to the closest vacant voting machine. Since then, after the passage of SB 14, I have arrived at the polling officer’s desk with my drivers’ license out. It seems natural, so much so that I barely take note of it when I vote—after all I have to provide ID for a number of less important tasks—I have to give ID just to pick up will call tickets at an Isley Brothers concert. So what is the big deal?
The “big deal” has to do with access to ID and the effect on the poor, who are disproportionately black and Hispanic in this state. In essence, the Texas Legislature cut back on the kinds of acceptable ID, preferring some photo ID to other kinds of photo ID that were acceptable under the old law (such as the student and government employee ID), and cut out any other kinds of non photographic proof of an individual’s identity. While undoubtedly most African Americans and Hispanics can get necessary ID, those that cannot because of their poverty matter. And they matter not just in a caring kind of way. In an election in Texas, local or statewide, a few thousand disqualified African American votes here, and a few thousand disqualified Hispanic votes there, and you may have a different outcome.
Obtaining a photo ID costs money. Presently, photographic proof of identity, social security number, US citizenship or lawful residence, and Texas residence is required. But if a person is not a driver, what are the options? A military ID will suffice, and if one is a gun owner with a license to carry a concealed handgun (which has picture ID), that’ll work in the Great State! A US citizenship certificate will suffice as well to get you to a voting machine. Finally there is the Election Identification Card (EIC) for non vets who do not drive and prefer not to carry concealed weapons on their person. All of these include a photo and none of these forms are acceptable if expired more than 60 days at the time of voting. Student IDs and government employee IDs are out (which typically include a photo of the holder), as are any kind of non-photographic, though official, or creditable, identification.
Pretty detailed stuff here. But no more so, I guess, than the instructions to a 1040 form. But wait, pretty soon we are in Schedule d capital gains and losses territory kind of complex!
The majority described the requirements for getting an ID in the opinion:
To receive an EIC, DPS rules require a registered voter to present either: (A) one form of primary ID, (B) two forms of secondary ID, or (C) one form of secondary ID and two pieces of supporting identification. 37 TEX. ADMIN. CODE § 15.182(1). Thus, any application for an EIC requires either one Texas driver’s license or personal identification card that has been expired for less than two years, or one of the following documents, accompanied by two forms of supporting identification: (1) an original or certified copy of a birth certificate from the appropriate state agency; (2) an original or certified copy of a United States Department of State Certification of Birth for a U.S. citizen born abroad; (3) U.S. citizenship or naturalization papers without a photo; or (4) an original or certified copy of a court order containing the person’s name and date of birth and indicating an official change of name and/or gender.
In other words, to get an ID one must have—an ID. The notion of having to get an ID to get and ID may sound funny but there are costs involved. For persons in poverty, the EIC is the best bet. That is because the Legislature, after passing SB 14, passed new legislation waiving the fees for the EIC. But there are still the fees for the forms of ID needed to get the EIC.
District Court Judge Ramos called this state of affairs a poll tax, a requirement from the old days and found unconstitutional in the 60s requiring persons to pay to vote if they did not meet other requirements, but the 5th Circuit ruled against her on that point. Following Judge Ramos opinion finding discrimination, the Legislature passed a bill in the 2015 session waiving costs for birth certificates requested for purposes of getting an EIC. That leaves US Department of State, citizenship or naturalization papers, any out of state birth certificate, or court order uncovered by any cost saving measure. Of course these are the kinds of documents you would normally expect people would normally keep handy. But do they, and should a consequence of not being so careful be denial of the franchise?
One expert made the following point at the district court hearing:
[U]nreliable and irregular wage work and other income . . . affect the cost of taking the time to locate and bring the requisite papers and identity cards, travel to a processing site, wait through the assessment, and get photo identifications. This is because most job opportunities do not include paid sick or other paid leave; taking off from work means lost income. Employed low-income Texans not already in possession of such documents will struggle to afford income loss from the unpaid time needed to get photo identification.
Based on this and other evidence, the majority noted that Judge Ramos determined “that the poor are less likely to avail themselves of services that require ID, such as obtaining credit and other financial services. They are also less likely to own vehicles and are therefore more likely to rely on public transportation. As a result, the poor are less likely to have a driver’s license and face obstacles in obtaining photo identification. Id. Even obtaining an EIC poses an obstacle—the district court credited evidence that hundreds of thousands of voters face round-trip travel times of 90 minutes or more to the nearest location issuing EICs. Of eligible voters without access to a vehicle, a large percentage faced trips of three hours or more to obtain an EIC.”
Simply stated, there are hidden costs under the present law that could prove more burdensome on poor people. Other states, recognizing this effect, have instituted indigency exceptions to the ID requirement. When given the opportunity to include such an exception to the photo ID requirement (which was included in the version of the bill passed by the Texas Senate), the Texas House declined. Linking voting to other forms of ID more available to minority voters such as student IDs, state government employee IDs, and federal IDs—IDs that are disproportionately held by African–Americans and Hispanics was passed on as well (admittedly not linked to indigency, but the Legislature’s decision to decline these forms remains inexplicable nonetheless). This and other evidence offered lead to the district court’s conclusion that members of the Texas Legislature were well aware that the rules would have a disproportionate effect on poor Texans. The district court took note of the fact that an Indiana voter ID program found constitutional by the Supreme Court contained ameliorative provisions declined by the Legislature. Yet the bill was passed anyway. And the district court found discrimination.
The disproportionate effect on the poor, disproportionately minority in Texas, appears to have been established, even if to middle class observers the inconveniences seem trivial. And even though there is no final opinion on the issue of intent to discriminate, the disproportionate impact appears well established. But not to the judges filing principal dissent in this case.
Judge Edith Jones penned the principal dissent in this case which was joined by four other members of the 5th Circuit minority in this case. Judge Jones’ dissent has several analytical points, but a few bear mentioning in this blog. Initially I believe that the dissenters were miffed that the majority dismissed the lower court’s intent finding, identified what looked to the majority as intent evidence, and then basically wrote the lower court’s opinion for it when it remanded with instructions. The dissent may have a point there, though I am not aware of any ethical or procedural rule violated.
The dissenters also note the lack of any proof that a significant number of minority voters were disenfranchised by the law. In fact, only a few individuals were identified in the litigation as having had difficulty voting or were declined access to the polls, and several of them are plaintiffs in the case. This is a curious critique of the majority opinion in that the district court, and the majority on the disparate impact portion of the ruling, appears to have established that the voting rights of a significant number of African American and Hispanic voters had been harmed by the voter ID law. The data indicated the number of members of both groups did not have necessary documentation to get adequate ID to vote, and experts testified as to costs and the obstacles posed by those costs associated with accumulating the documentation. To the dissent this was irrelevant—no proof of vote denial means no proof of vote denial. The dissent seems to argue that affected voters may be able to overcome the obstacles associated with the law and if so, they should not be counted as evidence of denial.
The majority and the concurrence point out that the term abridgement accompanies the term denial in section 2 and that abridgement of the right to vote refers to any reduction or diminution of the vote including all aspects of the process of voting necessary to make the vote effective. So under section 2 both denial and abridgement are prohibited. And the evidence appears to establish that the new law made it more difficult to qualify for voting to the point that vote denial is a likely consequence.
Yet the dissent had doubts about the significance of the numbers. The fact is that the vast majority of African American and Hispanic voters have the needed ID to vote. However statistical analysis relied on by the district court found significant percentage swings in the likelihood of having SB 14 identification materials when Anglo citizens are compared to African American and Hispanic voters (305% and 195% respectively). These are statistics and reflect relatively small percentages of the minority populations in the state. Nonetheless, these are potentially election affecting numbers. Yet the principal dissent would have the litigants address evidence of whether or not these citizens were able to cure their ID problems in time for the next election to count as actual vote denial.
Hence the main problem with voting rights protection. Supporters of strong voting rights protection understand what happens when the quality of the voting experience, including registration and casting, is hampered by new rules—the results of elections are affected. So supporters are confident enough with evidence of abridgement that they will seek to access the remedies in the VRA in advance of an election despite the fact that denial is impossible to prove at this point. Those critical of strong voting rights protection measures for whatever reason (textualism, originalism, federalism), need to see evidence of actual vote denial. But one cannot be denied a vote until one presents oneself to the polls on election day, and then it’s too late if the importance of voting is to have one’s say in electing government under which one lives. This is why pre-clearance was so important under the portion of the law gutted by the Supreme Court in Shelby County.
Remedy
The majority remanded the matter back to the district court mindful of the 2016 elections which include the election of the President of the United States. Judge Ramos of the district court was instructed to develop interim measures, mindful of what appropriate purposes the Texas Legislature had when it passed SB 14, and also mindful of the disparate impact discrimination finding on the part of both the district court and the 5th Circuit majority. Those voters unaffected by the voter ID law will have to use ID next November. The impact on those affected by the voter ID law, i.e. those having difficulty getting proper documentation, will be the subject of the remedy. After the election Judge Ramos may address the discriminatory intent issue and may hold hearings on the matter.
A date before the Supreme Court is a sure thing. Since SCOTUS has already upheld voter ID laws with less restrictive rules than Texas, like those of Indiana, the Texas case will simply define the extent that states may go in requiring ID when the Supreme Court rules in a couple of years. You can expect that states determined to have voter ID laws for whatever reason, will push the boundaries of any Court decision in the future.
This issue, like this case, is not over.
Excellent analysis.
ReplyDeleteExcellent analysis.
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