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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Voter ID plaintiffs responded Friday to attempts by the State of Texas to have Judge Nelva Gonzales Ramos throw out challenges to the state’s voter ID law, on both standing and substantive grounds, without need for a trial.

Here are the briefs:

DOJ

Veasey plaintiffs and LULAC

Mexican-American Legislative Caucus/NAACP

The state has until December 6 to file reply briefs.

____

HIGHLIGHTS

Application of Section 2 to Voting Administration Laws 

All of the parties took strong exception to Texas’ contention that a facially race-neutral voting administration law - like SB 14 - cannot violate section 2 of the Voting Rights Act merely based on a disproportionate impact on certain racial or ethnic groups.

In its motion to dismiss, Texas had argued that accepting the plaintiffs’ interpretation of section 2 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,” telling the court:

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.

However, MALC and the NAACP told Judge Ramos in their brief that Texas’ argument was had “no textual support” and said that SB 14 was clearly “a ‘prerequisite’ to voting that will ‘deny’ or ‘abridge’ the right to vote within the plain meanings of those terms as used in Section 2.”

DOJ’s brief, likewise, told the court that the plaintiffs’ interpretation was consistent with a long line of section 2 cases holding that “the burden imposed by a contested practice need only ‘hinder [minority] citizens’ ability to to participate in the political process’ to violate Section 2.”

DOJ pointed, for example, to the Fifth Circuit’s decision in Mississippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Cir. 1991), which upheld the invalidation of Mississippi’s dual voter registration system (requiring voters to register a second time for local elections) on the grounds that it imposed “administrative barriers  … [that] are harder to overcome for persons of lower socio-economic status and persons of lower education attainment, a group that is disproportionately black.”

The brief also pointed to decisions ordering opening of polling places on a Native American reservations and striking down “the use of polling places at locations remote from black communities.”

The brief told the court:

It is spurious to argue that SB 14 cannot cause a denial or abridgment of the right to vote because anyone may vote if he or she ‘choose[s]’ to ‘spend … limited time and resources’ on obtaining an EIC. The decisions in Operation Push, as well as in cases requiring jurisdictions to move their polling places to provide equal access to minority voters, demonstrate why Texas’s argument must fail. If Texas’s strained reading of Section 2 were correct, it would not have been enough in Operation Push to show that ‘administrative barriers’ to voter registration interacted with the social and historical legacy of discrimination in Mississippi to result in unequal for black citizens. Instead, the plaintiffs in Operation Push would have been required to prove that minority voters were categorically unable to make two trips to the county courthouse in order to register to vote. But such a showing of impossibility is not what Section 2 requires.

DOJ also noted that the D.C. court’s pre-Shelby County opinion refusing to preclear SB 14 had rejected virtually the identical argument, with the D.C. panel writing:

[I]n an attempt to advance its own definition of ‘deny’ or ‘abridge’- one that would essentially exempt voter ID laws from section 5 preclearance - Texas ignores what the Supreme Court has said those terms mean … Just as educational and economic conditions might affect whether minorities ‘choose’ to vote, these conditions could also affect whether minorities ‘choose’ to obtain photographic identification.

In this case, DOJ said:

For many African-Americans and Hispanic Texas voters without SB 14 identification, traveling to a distant DPS office and incurring costs for the underlying documents necessary to obtain an EIC will impose burdens far more significant than those associated with registering to vote or traveling to a neighborhood polling place on election day. When viewed in the totality of the circumstances, the increased burdens that SB 14 imposes on Texas voters who do not have the required SB 14 photographic identification are well beyond those typically associated with voting, and, as a result will deny African-American and Hispanic voters an equal opportunity to participate in the political process.

The Impact of Crawford

The parties also disputed Texas’ contention that the Supreme Court’s decision in Crawford v. Marion County Election Board - which upheld Indiana’s voter ID law - was dispositive on the question of whether other voter ID laws were valid.  

DOJ noted, for example, that:

Crawford contained neither a Section 2 claim nor any racial discrimination claim at all, but, instead, contained a First and Fourteenth Amendment facial challenge to Indiana’s photographic identification law (known as ‘SEA 483’). Indeed, the district court concluded that there was no evidence in that case that racial minority groups would be disproportionately impacted by Indiana’s law.

The brief also noted that SB 14 differed in significant ways from the Indiana statute:

Indiana’s law is far less restrictive than SB 14. For example, Indiana’s photographic identification law permits the use of any federal or Indiana identification with an individual’s name, photograph, and an expiration date after the most recent election. The law further allows indigent voters without identification to cast a valid vote by provisional ballot through filing an affidavit with a circuit court clerk or county election board.

The Veasey plaintiffs and LULAC expanded on these differences, noting that:

Voters without an acceptable voter photo identification under SB 14 must travel to DPS offices to obtain an election identification certificate. Barely half of Texas counties have a fully functioning DPS office, with about one-third of Texas counties hav[ing] no DPS office at all. This means that residents of those counties cannot qualify to vote in their own county. Further, although Defendants allege the election identification certificate is free, in actuality a voter must present documents to the DPS to obtain the certificate that are not free: the cheapest option is an original birth certificate which costs a minimum of $22. Further, to obtain an original birth certificate, an eligible citizen must travel to another government office to request and receive the document. Finally, none of this addresses the tens of thousands of eligible Texas citizens who cannot obtain a birth certificate at any cost because one is not available for them.

The Constitutional Limits of Section 2

The briefs also spent time addressing Texas’ contention that “[a]ny construction of the Voting Rights Act that precludes Texas from implementing its voter-identification law will exceed Congress’s enforcement power under … the Fifteenth Amendment.”

Calling Texas’ argument “meritless,” DOJ told Judge Ramos that “[w]hile the Fifteenth Amendment itself prohibits only intentional discrimination, the Supreme Court has held and ‘made clear that a violation of § 2 could be established by proof of discriminatory results alone.”

In fact, DOJ said “the constitutionality of Section 2’s results test has been upheld by the Fifth Circuit and avery other court to consider the issue,” explaining that:

 In upholding the constitutionality of the results test, courts have noted that while the Constitution prohibits intentional discrimination, ’ Congress could rationally conclude that a different statutory test would permit fuller enforcement of that constitutional prohibition.’

The Veasey plaintiffs and LULAC were blunted, saying “[t]he problem is that defendants seem to believe there are really no constitutional limits on the State’s power to manipulate the voting process to favor and disfavor at the Governor’s and the legislators’ pleasure.”

The Nature of the Plaintiffs’ Section 2 Claims

In any event, the plaintiffs said in their briefs that Texas had seriously mischaracterized their section 2 claims as being limited to a theory based on “‘mere” disparate impact.”

MALC and the NAACP called the argument a “straw assertion,” and DOJ explained to the court that while disparate impact was a “highly relevant starting point,” it was only one part of a much broader inquiry under section 2:

Section 2’s ‘results test … does not look for mere disproportionality … . Rather, plaintiffs must establish that under the totality of circumstances, the challenged procedure prevents minorities from effectively participating in the political process.

That inquiry, the plaintiffs explained, requires looking not only at statistical differences but at socio-economic and historical factors, including “none non-exclusive factors” laid out in the Senate Report accompanying the 1982 amendments that adopted a ‘results test’ for section 2.

In this case, DOJ’s brief said:

The factual allegations contained in the United States’ complaint do more than establish an initial statistical disparity. The complaint alleges not only racial disparities in photographic identification possession rates, but also that the disparate socio-economic circumstances resulting from discrimination in education, employment, and housing, as described in Senate Factor 5, do not provide minority voters with an opportunity, equal to other members of the electorate, to obtain the requisite identification. This unequal ability also stems from an electoral system that is scarred by a legacy of intentional discrimination and by an ongoing lack of responsiveness to the concerns of racial minorities.

The Veasey plaintiffs and LULAC, likewise, said their complaint:

details a record of adjudicated voting rights violations extending to the present day, including judicial findings of intentional racial discrimination during the very legislative session during which SB 14 was adopted. This backdrop of racial voting discrimination is strong circumstantial evidence that SB 14 functions in a racially discriminatory manner that is qualitatively distinct from a case involving incidental statistical artifacts. This distinction is further reinforced by  … the derogatory, racially charged campaign that accompanied passage of SB 14.