Texas voter ID law found to have disparate impact

Veasey v Abbott No. 14-41127, 2016 WL 3923868 (5th Cir. July 20, 2016)

A US federal court has handed civil rights groups a crucial win ahead of this year's presidential election after ruling that Texas’ restrictive voting legislation has a discriminatory effect on Hispanic and African American voters. The 2011 law requires voters to produce one of a limited number of forms of identification and is the nation’s strictest voter photo ID law, leaving more than half a million eligible voters unable to fully participate in the democratic process. The recent ruling will require that measures are taken to allow disenfranchised voters to participate in this November’s US presidential election.

In 2011, Senate Bill 14 (SB 14) was passed in Texas, requiring voters to present one of six forms of photo identification in order to cast a ballot in person.

Obtaining photo identification is expensive and in Texas it often requires distant travel to government issuing offices. Currently, up to 600,000 eligible voters don’t have the requisite identification set out in SB 14, which includes a Texan driver’s license, military ID, US citizenship certificate, Election Identification Certificate, US passport and a concealed handgun license.

The legislation has a long procedural history. In 2011 its implementation was blocked when a federal court held that the law discriminated against minority voters. In 2013, however, the bill was enacted following the US Supreme Court decision in Shelby County v Holder that held that federal pre-clearance under section 5 of the US Voting Rights Act 1965 (VRA) is no longer required to change state election laws.

District court case
Advocacy groups sought an injunction from the US District Court for the Southern District of Texas. They argued that SB 14 breaches Section 2 of the Voting Rights Act 1965 (VRA) which proscribes any "voting qualification or prerequisite to voting…which results in a denial or abridgement of the right of any citizen…to vote on account of race or color". Expert witnesses testified that African-American voters are 305 percent more likely than white voters to lack an accepted form of ID.  The plaintiffs also argued that SB 14 is, in effect, a poll tax and that it unconstitutionally burdens the right to vote. 

The State of Texas countered that the legislation was necessary to reduce voter fraud and to promote public confidence in the process. It was denied that the requirements were a burden on the right to vote.

In October 2014 the District Court ruled for the plaintiffs on all counts and granted an injunction against the enforcement of the voter ID provisions of SB 14. The State appealed and were granted a stay pending appeal on the grounds that it was necessary to maintain the status quo on the eve of an election. The legislation has remained in force until now, preventing voters from participating in the 2014 midterm elections, 2016 primaries and various other state and local races.

(i)            Discriminatory Impact

A two part test was adopted by the District Court to evaluate the disparate impact of SB 14 under section 2. The first part of the test asks whether the law imposes a burden on minorities and the second asks whether the law “interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives”. The District Court used the so-called ‘Gingles factors’ in order to evaluate the second part of the test. These factors allowed the court to examine, amongst other things, the history of official discrimination in Texas and issues related to racially polarised voting. The court noted that the gap between Anglo and Latino Republican support is between 30 and 40 percentage points.

Both prongs of the disparate impact test were found to be in the affirmative. The District Court ruled that the law disproportionately impacts African Americans and Hispanics and does not do so “by mere chance” (Veasey v Perry at 698).

On appeal, the State did not dispute underlying factual findings given in expert evidence, such as the finding that Hispanic voters and African-American voters were respectively 105 and 305 percent more likely than their Anglo peers to lack an accepted form of ID. Instead, it was claimed that the court had erred in failing to ask whether SB 14 had caused an actual disparity in voter turnout, rather than a disparity in voter ID possession. Counsel for the state argued that factors other than election laws may impact on voter turnout, noting by example the effect of President Obama’s candidacy on voter numbers.

(ii)           Discriminatory Intent

The District Court applied the factors set out in the Supreme Court decision of Arlington Heights in order to determine that the bill was enacted with discriminatory purpose. The factors look at the background of the decision, the sequence of events leading to the decision and identify any departures from normal procedural sequence. Legislative awareness of the impact is not enough: the law must be passed because of that impact. Discrimination must be a ‘substantial or motivating factor’ behind the law’s enactment.

(iii)          Constitutional breach

The District Court upheld the plaintiff’s claim that SB 14 is a poll tax under the Fourteenth and Twenty-Fourth Amendment and that it unconstitutionally burdens the right to vote under the First and Fourteenth Amendments.

By a 9-6 majority, the U.S. Court of Appeals for the 5th Circuit affirmed the District Court’s finding that SB 14 violates Section 2 of the Voting Rights Act through its discriminatory impact.

In doing so, the 5th Circuit upheld the validity of the two part analysis and application of the Gingles factors as appropriate standards for the assessment of section 2 claims. On the issue of whether SB 14 directly caused a reduction in voter turnout, the appellate court pointed to the wording of the Act which asks whether the law results in a “denial or abridgement of the right…to vote”. As such, the right need not be denied outright but can be simply diminished in order to trigger a breach. It was held that there is no requirement to show actual lower turnout: other factors affecting voter turnout do not mean that voters kept away are any less disenfranchised.

On the issue of discriminatory intent, the 5th Circuit affirmed the lower court’s use of the Arlington Heights framework to determine legislative purpose, however held that much of the evidence relied on was ‘infirm’. The judgment was reversed and has been remanded to the lower court for re-consideration.

The 5th Circuit declined to decide on the question of whether SB 14 unconstitutionally burdens the right to vote, on the basis that a court will not normally decide a constitutional question if there is some other ground on which to dispose of a case.

Finally, it was held on appeal that the indirect cost on all voters brought about by SB 14 does not impose a poll tax. The lower court’s decision on this issue was vacated and judgment was rendered for the State on the issue.

The 5th Circuit decision required the lower court to fashion an interim remedy for the November 2016 election. The remedy must, according to the appellate court, be tailored to the exact breach and should account for the policy choices behind the legislation.

This is a significant decision ahead of the upcoming presidential election and is one of a number of recent judicial decisions against state voter ID laws in the US. In the past five months, federal and district courts have variously struck down or limited aspects of voter ID laws in North Dakota, North Carolina, Wisconsin and Kansas.

The surge in voter ID litigation has been attributed to Shelby County v Holder 570 US (2013), a U.S. Supreme Court decision that removed the requirement for the federal government to approve changes to state voting procedures. As a result, states with a history of discrimination have been able to enact strict voter ID laws, creating a trend of civil rights cases to strike down those laws.

Texan Governor Greg Abott disagreed with the 5th Circuit’s decision, claiming it was “wrongly concluded”. In a public statement he showed his support for SB 14 as a way to combat against fraudulent voting, explaining "voter fraud is real, and it undermines the integrity of the election process".

A strongly-worded dissent in Veasey declared the outcome to be "ill-conceived, misguided and unsupported". Judge Edith Jones for the minority stated that keeping the discriminatory intent claim alive “fans the flames of perniciously irresponsible racial name-calling" (at [101]-[102]).

The stage appears to be set for a Supreme Court showdown to decide the validity of SB 14.

The full text of the decision can be found here.

Joshua Butler is a Graduate Lawyer at Lander & Rogers Lawyers.