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Political Reality Smacks Down Texas' Voter ID Law

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In time for the presidential election, an appeals court has determined that Texas' voter identification law is discriminatory. Those without a government-issued photo ID will therefore have their votes counted on the basis of other evidence of residency. If Texas turns out to be in play in November, the result could have a small but meaningful effect in Hillary Clinton's favor.

More important, the decision has great symbolic significance in an election in which Donald Trump has focused on illegal immigration. In 2008, the U.S. Supreme Court upheld a voter ID law in Indiana as a permissible way to avoid voter fraud. The different result in Texas -- a state with distinctly different demographics -- highlights how much things have changed in the last eight years.

A federal district court had previously found that the Texas law, S.B. 14, violated both the Voting Rights Act and the Constitution, and a panel of the U.S. Court of Appeals for the 5th Circuit upheld part of the decision. Texas then asked the entire court to sit and reconsider the result. In the meantime, the 5th Circuit issued a stay that kept the law in place. The plaintiffs asked the Supreme Court to reinstate the lower court decision and block the law.

In an unusual move, the justices told the 5th Circuit that if it didn’t decide the case by July 20, 2016, the court would be willing to consider a motion to block the law. The Fifth Circuit got the message -- and issued its carefully crafted opinion on July 20.

The majority more or less reached the same result that the panel had. It first said that the district court had made some legal errors in determining that the Texas law was enacted with the intent to discriminate against minority voters. In particular, the appeals court chided the lower court for relying too much on Texas’s long history of voter discrimination and for giving too much weight to the testimony of the law’s opponents.

The appeals court sent the case back to the district court for a do-over on the question of intent, to take place after the election. It strongly hinted that there could be enough evidence of discriminatory intent -- in particular the fact that there was no meaningful evidence of voter fraud.

This part of the holding might for the moment assuage the feelings of some Texas Republicans, who can at least say that the appeals court didn’t find that they meant to block Latinos and blacks from voting.

But unlike the Equal Protection Clause of the Constitution -- which, according to the Supreme Court, only prohibits intentional discrimination -- the Voting Rights Act also prohibits laws that have a discriminatory effect. And the 5th Circuit upheld the district court’s judgment that the voter ID law had a disparate, racially discriminatory impact on voters.

The basis for that conclusion was a regression analysis performed by Stephen Ansolabehere, a colleague of mine at Harvard. Ansolabehere analyzed a list of more than 500,000 registered voters who didn’t have ID that allowed them to vote under the Texas law. He concluded that Latino and black voters were respectively 195 percent and 305 percent more likely than white voters to appear on that list.

This evidence of discrimination provided the basis for the court to distinguish the case from the Supreme Court’s 2008 decision Crawford v. Marion County Election Board. In that complex case, six justices voted to uphold Indiana’s voter ID law, which required the equivalent of a driver’s license to vote.

The ordinarily liberal Justice John Paul Stevens wrote a plurality opinion, joined by Chief Justice John Roberts and Justice Anthony Kennedy, in which he reasoned that Indiana had a constitutionally legitimate interest in “protecting the integrity and reliability of the electoral process.” (The other liberals on the court at the time thought the law was discriminatory, while the hard-core conservatives thought it wasn’t.)

The 5th Circuit reasoned that the Crawford case wasn’t brought under the Voting Rights Act, but under the Constitution. To win, the plaintiffs would have had to show discriminatory intent, not just discriminatory effect. And there was no study comparable to Ansolabehere’s.

That’s a reasonable doctrinal basis for legal distinction. But the deeper difference between the two cases is surely the changed political circumstances between 2008 and 2016. In that time, anti-immigrant sentiment has risen. In 2008, even Stevens was prepared to allow the Indiana law to pass muster. Today, it would be much harder for a court to ignore the effects of the Texas law.

The 5th Circuit told the district court to fashion a remedy in time for the election that would allow people without qualifying ID to go to the polls and have their votes counted. It remains to be seen whether the publicity surrounding the law will suppress minority voter turnout.

But the symbolism of the decision leaves no question: Every qualified voter should have the right to vote in November.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net