This Ruling Could Put Texas Back In The Doghouse On Voting Law Changes

A federal judge’s decision on Thursday to strike down Texas’s strict voter identification law is a boost for the Obama administration’s effort to once again require the Lone Star State to receive federal pre-approval before making any changes to its voting laws.

“The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose. The Court further holds that SB 14 constitutes an unconstitutional poll tax,” Judge Nelva Gonzales Ramos, an appointee of President Barack Obama, wrote in a 147-page opinion.

The finding of a “discriminatory purpose” could end up being the Justice Department’s ticket to victory in this high-profile clash with Texas that stands to impact future elections.

“I think this is quite important, actually. I think the DOJ has the ammunition to bring Texas back under the preclearance requirement,” said Bertrall Ross, a professor at UC Berkeley School of Law. “But it all depends in terms of whether this decision is upheld on appeal — whether the 5th Circuit [and possibly the Supreme Court] issue a similar finding with respect to discriminatory purpose.”

As one piece of evidence that Texas intended to discriminate against minorities, Ramos cited a finding by American University history professor Allan Lichtman that state legislators were waging “intentional discrimination against minorities to achieve a partisan political advantage.” The judge said she considered a variety of factors including historical background, events that led to the decision, contemporaneously statements by decision-makers and the disparate impacts on racial groups.

Rick Hasen, a professor at UC Irvine School of Law, called the ruling “a big boost to DOJ’s efforts if it stands.”

Supreme Court Chief Justice John Roberts speaks at the American Bar Association’s annual meeting in Boston, Monday, Aug. 11, 2014. (AP Photo/Elise Amendola)

In June 2013, the Supreme Court struck down Section 4(b) of the Voting Rights Act, freeing Texas and 13 other states (all with a history of voter discrimination) which previously needed federal pre-approval to change their voting laws as they please. The high court ruled the formula irrational because it dated back to the 1970s, but it left intact Section 5, which set up the “preclearance” rule in principle. Section 3 of the law allows the DOJ to “bail in” jurisdictions under preclearance if it manages to prove that the jurisdiction acted with the intent — not merely the effect — of discriminating against minorities.

That’s very difficult to prove in court, but for now the Obama administration has gotten a boost at the trial court level. Judge Ramos’s opinion said his court would “set a status conference to address the procedures to be followed for considering” the DOJ’s request to bail in Texas under preclearance. Section 3 gives judges discretion, Hasen said, in how long preclearance would last (a maximum of 10 years) and whether it applies to all voting changes or only certain ones, for instance redistricting and voter ID.

“If the court indeed follows up with a bail-in order, Texas could become
the first state brought back under a preclearance regime since Shelby County,” wrote Justin Levitt, a professor at Loyola Law School in Los Angeles.

Texas is appealing the decision — including the question of “bail in” under preclearance — at the 5th Circuit Court of Appeals, which leans conservative and might reach a different conclusion. The case may land up in the Supreme Court, which also tilts conservative on the issue of voting rights.

Ross, the UC Berkeley professor, explained that while higher courts tend to defer to lower courts on the questions of fact-finding, they typically take a more skeptical view on questions of intent.

“There’s always a question of whose intent matters because these are collective decisions. So if you just have a statement of discriminatory intent by one of two actors then it’s difficult to make the claim that the collective body has discriminatory intent. So that’s the judgment you have to make,” he said. “I would expect the 5th Circuit and Supreme Court to take a skeptical view of findings of discriminatory purpose. They’re going to closely scrutinize the record to see if there really was a discriminatory purpose.”