TEXAS REDISTRICTING & ELECTION LAW

Updates about ongoing redistricting litigation in the Lone Star State and coverage of election law more generally. This website's goal is to try to make sure the redistricting process and litigation over voting law is as transparent and accessible as possible to the public. Hopefully, it will be of some use to a broad range of interested parties, both lawyers and non-lawyers. Have questions, comments, suggestions, additional content, or a redistricting joke (or two)? Feel free to contact me: Michael Li, michael.li@mlilaw.com, 202.681.0641.
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The State of Texas filed a motion this afternoon asking Judge Nelva Gonzales Ramos to dismiss pending voter ID suits on several grounds.

First, the motion argued that elected officials like Congressman Marc Veasey, governmental bodies like Dallas County, and community groups like the Texas League of Young Voters “lack [legal] standing to assert the third-party rights of voters.”

The motion said that under case law on standing, a “plaintiff cannot sue to vindicate the right of third parties unless he clearly alleges and demonstrates that the third-party rights-holders face a ‘hinderance’ to protecting their own rights.” In this case, the motion argued that “[a]ny voter who suffers injury in fact as a result of Senate Bill 14 can sue to challenge it, and there is no shortage of capable and highly motivated attorneys willing to provide representation free of charge.”

The motion also argued that three of the individual plaintiffs had failed to assert an injury sufficient to create standing to sue under Article III of the Constitution. 

The motion said that the state’s voter ID allows people to vote as long as the name on their ID is “substantially similar” to the name on voter rolls and that the three plaintiffs had failed to “plead facts showing that the names on their photo identification and voter-registration certificate are not ‘substantially similar’ under the standards established by the Secretary of State.”

The motion also broadly challenged the substantive merits of the suits, telling the court that each of the plaintiffs - including the Justice Department - had failed to state a claim on which relief can be granted.

The motion argued that:

Senate Bill 14 does not ‘deny’ or ‘abridge’ the right to vote, because anyone who lacks photo identification can get an election-identification certificate. The plaintiffs have not alleged that anyone in Texas is unable to obtain this identification. They claim only that the ‘burden’ of obtaining photo identification will cause some people to choose not to obtain it. That is not sufficient to allege a ‘denial’ or ‘abridgment’ of the right to vote.

                                 …

Laws requiring voters to present photo identification are no more a ‘denial’ or ‘abridgment’ of the right to vote than laws that require voter registration or in-person voting at polling places. The Supreme Court specifically held in Crawford that the inconvenience associated with obtaining photo identification is no more significant than the ‘usual burdens of voting.’

The state said that accepting the plaintiffs’ interpretation would mean that almost any voting law would result in a violation of section 2 of the Voting Rights Act since “[n]o voting law will have an impact that is symmetrical across all races,” arguing:

Surely the Attorney General does not believe that the Voting Rights Act requires every State to abolish in-person voting and allow everyone to vote by mail, as Oregon has done. But that result logically follows from the Attorney General’s contention that lack of access to motor vehicles among racial minorities prohibits Texas from enacting a voter-identification law.

Comparing the voter ID law to felon disenfranchisement laws, the state’s  brief noted that:

Felon-disenfranchisement laws have been repeatedly attacked on the ground that they disproportionately affect racial and language minorities. Yet courts have uniformly held that felon-disenfranchisement laws do not ‘result[] in’ a denial or abridgment of the right to vote on account of race or color, or because of one’s membership is [sic] a language-minority group. To the extent that felon-disenfranchisement laws deny or abridge the right to vote, they do so on account of one’s past criminal convictions, not on account of race or color or membership in a language-minority group. The same logic applies to voter identification laws.

For similar reasons, the motion said that there was no violation of the 14th or 15th amendments of the Constitution.

More summarily, the motion also rejected claims that the state’s voter ID law had been enacted by the Texas Legislature with a discriminatory intent.

Under the briefing schedule adopted by the court, the plaintiffs have until November 22 to respond.