On Wednesday, the U.S. Court of Appeals for the 5th Circuit ruled that Texas’ Senate Bill 14, which requires voters to show photo ID when voting in person, had a “discriminatory effect” on minority voters and thus violated Section 2 of the Voting Rights Act. But the court rejected the claim that the Texas Legislature had a “discriminatory purpose” when it passed the law, a determination the court said requires more “contemporary evidence” that legislators intended to discriminate against black and Latino voters.
Last October, when the same case made a short trip to the Supreme Court to determine if S.B. 14 should go into effect before the 2014 election, Ginsburg had dire words for the law. A majority of the justices decided to let it go into effect, but Ginsburg disagreed.
"The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law," Ginsburg wrote, "one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters."
That’s the Texas law in a nutshell. But after Wednesday’s decision, Ginsburg’s observation that the law is “purposefully discriminatory” is no more. The court threw that finding back to the lower court for a second look, asking it to apply a stricter standard to determine legislators' true motives in passing the voter ID law.
But just about everything else Ginsburg said in October is still true. Like the fact that Texas' voter ID law is “the strictest regime in the country” -- so strict it would have kept about 4.5 percent of all Texas voters, most of them minorities, from the polls. Or the fact that it imposed a financial burden on poor residents who lacked proper documentation to obtain the required IDs. Or the fact that a separate, three-judge panel had already ruled in 2012 that the law, if implemented, would have a “retrogressive effect” on blacks and Latinos -- that is, it would effectively roll back the advances they had made since the passage of the Voting Rights Act.
That 2012 ruling happened when Texas -- and other states with a history of voter discrimination -- still needed to "pre-clear" any proposed electoral changes with the Department of Justice or a three-judge federal court. Under this preclearance formula, Texas failed time and again, Ginsburg noted, adding that “racial discrimination in elections in Texas is no mere historical artifact.”
But the Supreme Court declared the preclearance formula unconstitutional in 2013 in Shelby County v. Holder. And Texas, free from federal oversight, immediately began to enforce its voter ID law, requiring voters to produce specific forms of government-issued IDs -- for example, concealed-carry licenses were OK, but not student IDs -- and shutting out poor Texans from the polls.
This is why so much was riding on this new challenge to S.B. 14, and why Ginsburg may have felt moved to draw attention to it. When the case was filed in 2013, it was considered a “test” case aimed at determining if Texas could be brought back under federal oversight, using a still-active provision of the Voting Rights Act. Think of it as a last-ditch effort to find out if the 50-year-old statute had any life left.
For a brief moment in October, it seemed like it did, after U.S. District Judge Nelva Gonzales Ramos held a nine-day trial, heard extensive evidence and found in a 147-page opinion that Texas’ law was intentionally discriminatory toward black and Latinos -- a key requirement for renewed federal supervision.
That finding was overturned in Wednesday’s ruling. The 5th Circuit called it “infirm” and sent it back to Judge Gonzales Ramos for a do-over. But the standard the appellate court asked Gonzales Ramos to apply was extremely high -- in a footnote, it suggested she needed to show that the “entire legislature” intended to discriminate against minority voters in Texas.
The court also scrapped Gonzales Ramos’ determination that the voter ID law amounted to a poll tax and dismissed challengers' claims that it violated the Constitution. But it softened the blow to voting-rights advocates with this pithy statement: “We recognize the charged nature of accusations of racism, particularly against a legislative body, but we also recognize the sad truth that racism continues to exist in our modern American society despite years of laws designed to eradicate it.”
That's probably small consolation for those who had big hopes for the case, like Jennifer Clark of the Brennan Center for Justice, a legal advocacy group that was actively involved in the Texas litigation. She called the half-win "bittersweet" in an MSNBC editorial.
The 5th Circuit decision was only “a narrow but important victory coming on the eve of the 50th anniversary of the passage of the Voting Rights Act,” explained UCI Law professor Richard Hasen. And until Gonzales Ramos reconsiders whether the Texas legislature truly had racist motives when passing the law, Texas gets to keep it on its books and enforce it, subject to whatever limited measures the judge orders to keep it in check.
So Texas lost. But it also won. And as the loser, it may choose to take this dispute all the way to the Supreme Court. If that happens, it's anyone's guess if the Voting Rights Act will live to see another 50 years. Last time the Roberts Court looked at the act, it almost killed it for good.
Original Article
Source: huffingtonpost.com/
Author: Cristian Farias
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