The new legal brief is a sign of the Justice Department’s dramatically different take on voting rights under the Trump Administration.
Under the Obama administration, the U.S. Department of Justice (DOJ) waged legal war against the voter ID rules Texas lawmakers passed in 2011, saying the new restrictions would disproportionately impact minority voters. That finding was later validated by multiple federal court rulings, two of which concluded the state’s GOP majority passed a deliberately racist bill.
This week brought another sign of the 180-degree change on voting rights cases under the Trump administration’s DOJ, which on Monday filed a legal brief that argues Texas should be allowed to fix its voter ID rules without federal intervention or oversight. The filing also argues that the courts should simply trust Texas to educate voters on the tweaked voter ID law the Legislature passed earlier this year, despite the state’s faceplant trial run when it tried to implement those rules during last year’s presidential election.
Experts say it’s a remarkable argument, given the history of the state’s years-long legal struggle to implement some version of a voter ID law that U.S. Supreme Court Justice Ruth Bader Ginsburg once called “the strictest regime in the country.”
“The state’s track record here is not impressive,” Rick Hasen, an elections law expert at the University of California Irvine, told the Observer. “The state of Texas and the Justice Department are now saying, ‘Oh, just trust Texas.’ It seems to me there’s not a lot of basis for trust given how much of a train wreck this has all been.”
GOP lawmakers cited the imaginary problem of rampant voter fraud as reason for the sweeping voter ID restrictions then-Governor Rick Perry signed in 2011. That law, Senate Bill 14, required Texas voters to present one of seven state-approved photo IDs — excluding such documents as utility bills and bank statements, which previously sufficed. Civil rights groups that ultimately challenged the law argued the seven types of ID were chosen in large part because white voters were most likely to have them. The following year, the Obama administration successfully blocked the law.
Then, in 2013, the U.S. Supreme Court effectively gutted the portion of the Voting Rights Act that required Texas and other states with a history of race-based voter suppression to clear elections law changes with the feds. Within minutes of the ruling, then-Attorney General Greg Abbott said Texas would immediately implement the new voter ID rules.
So the Obama administration, along with another group of plaintiffs, again sued Texas in an effort to stop the law, this time under a different provision of the Voting Rights Act. In 2014, Corpus Christi federal court judge Nelva Gonzales Ramos issued a thundering 147-page opinion that quoted Abraham Lincoln and concluded that lawmakers intentionally passed a racist law. Ramos pointed to the state’s alarming track record of voting laws that discriminated against minorities — from poll taxes, literacy tests and secret ballots in the 1960s to laws that required voters to own property that pervaded in some parts of the state well into the 1990s.
Even judges on the federal Fifth Circuit appeals court, largely considered the most conservative of the federal appellate courts, have twice ruled the law carried an “impermissible discriminatory effect against Hispanics and African Americans.” But the Fifth Circuit last year punted on whether the 2011 law was deliberately crafted to suppress the minority vote, instead kicking the question of so-called legislative intent back down to Ramos’ court for reconsideration.
Last year, Ramos signed off on interim rules ahead of the 2016 presidential election and tasked the state with making sure voters understood the new requirements, which turned out to be a disaster, as Hasen, the election laws expert, pointed out on his own blog this week. In Bexar County, for instance, the Mexican American Legal Defense and Education Fund sued local election officials when, after early voting had already started, they discovered poll workers breaking the new rules or giving voters inaccurate information. ProPublica later documented similar problems across the state.
And that was with court oversight. Yet, in court filings this month, lawyers for the state have argued that Ramos should just drop the case because lawmakers passed SB 5 during the regular session this year, a law that largely makes the court’s interim fix from last year permanent. It’s similar to the strategy the state has taken in its six-year legal saga over state House and congressional maps that the courts have similarly ruled were drawn with racist intent — this time to blunt the impact of Texas’ fast-growing minority vote.
In a recent court filing, the plaintiffs in the voter ID case argue the updated restrictions continue “to place a burden upon the very group of Black and Latino voters that SB 14 intentionally discriminated against.” They also bristle that the law contains no requirement for state officials to mount any kind of voter education effort around the new rules.
Meanwhile, the DOJ’s approach under Trump is to trust a state the federal courts have in recent years repeatedly bench-slapped for passing laws that intentionally discriminate against minorities.
Ramos’ decision will likely be appealed to the Fifth Circuit and then ultimately the U.S. Supreme Court, which means the courts are on a tight deadline to figure out what laws Texans will have to follow when they head to the polls for the 2018 midterm election. Hasen says the whole episode bolsters the argument for putting Texas back under federal oversight for changes to the state election laws.
“I don’t think Texas passing SB 5 with a gun to its head is proof the state no longer needs federal supervision,” he said.