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The State of Texas Voter ID Law Following the Texas NAACP v. Steen Opinion

By: Kristin Marker

On July 20, 2016, the Fifth Circuit Court of Appeals issued an opinion in Texas NAACP v. Steen (consolidated with Veasey v. Abbott) finding unconstitutional Senate Bill 14 (“SB 14”), which required individuals to present one of several forms of photo identification in order to vote. SB 14, passed in 2011, was found at the district court level to have a racially discriminatory purpose, a racially discriminatory effect, was found to be a poll tax, an unconstitutionally burdened the right to vote.  See Veasey v. Perry, 71 F. Supp. 3d 627, 633 (S.D. Tex. 2014).  The State filed a petition to rehear the case en banc, which the Fifth Circuit Court granted. 

SB 14 required voters to present specific forms of identification at the polls in order to cast a vote, which included 1) a TX driver's license or personal ID card issued by the Department of Public Safety ("DPS"); 2) a U.S. military identification card; 3) a US citizenship certificate with a photograph; 4) a US passport; 5) a license to carry a concealed handgun issued by DPS; 6) an Election Identification Certificate issued by DPS, obtainable if the voter can present one form of primary ID, two forms of secondary ID, or one form of secondary ID with two forms of supporting identification.  If a voter could not provide eligible ID at the poll, they could cast a provisional ballot and the vote would count if the voter produced ID to the county registrar within six days of the election.

The Plaintiffs filed suits in June of 2013 to enjoin enforcement of SB 14, which were consolidated before one federal court in the Southern District of Texas.  The allegations were that the photo identification requirements of SB 14 were enacted with a racially discriminatory purpose and had a racially discriminative effect.  They also claimed SB 14 placed a substantial burden on the fundamental right to vote under the First and Fourteenth Amendments and constituted an illegal poll tax.  The district court issued an opinion holding that SB 14 was unconstitutional. An injunction was put in place in November of 2014 prior to the election.

Discriminatory Purpose

The Fifth Circuit Court of Appeals applied the Arlington Heights factors to assess the discriminatory purpose of SB 14: 1) the historical background of the decision, 2) the specific sequence of events leading up to the decision, 3) departures from the normal procedural sequence, 4) substantive departures, and 5) legislative history.  See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-68 (1977).  The challenger bears the burden to show that racial discrimination was the substantial or motivating factor behind the enactment of the law.  The purported purpose of SB 14 was to protect the sanctity of voting and avoid voter fraud.  The Fifth Circuit found that the district court erroneously relied too much on historical evidence of discrimination, relied on "infirm" evidence of contemporary discriminatory effect, and improperly relied upon post-enactment testimony by certain individual legislators that should not have been imputed on the entire legislature for determination of discriminatory purpose.  The Fifth Circuit thus reversed and remanded the issue of discriminatory purpose back to the state court for further evaluation.

Discriminatory Intent

However, regarding discriminatory intent, the Court considered circumstantial evidence, as there rarely is direct evidence of discriminatory intent.  The Court considered and was convinced by evidence that drafters and proponents of SB 14 were aware of and dismissed the likely disproportionate effect SB 14 would have on minority groups. Moreover, there was only a tenuous link demonstrated between the purpose of preventing fraud and the actual prevention of fraud.  Indeed, Texas has a history of voter suppression through poll taxes, redistricting, and literacy tests with the intent of denying minority voters the vote.  Evidence in this case suggests that there were several radical procedural measures taken in enacting SB 14 leading credence to an inference of discriminatory intent, such as allowing the bill to bypass ordinary processes, which would not be necessary to address the pretextual purpose of preserving ballot integrity.  Additionally, there was evidence that there were only two convictions for in-person voting fraud out of 20 million votes cast prior to the passage of SB 14, whereas there was nothing in the bill to combat the far more probable likelihood of fraud in mail-in ballots. Moreover, there was evidence that SB 14 was passed following a rapid increase of minority populations in Texas, and that the proponents of the bill could gain partisan advantage by enacting a strict voter ID law such as SB 14, suggesting discriminatory intent.

Disparate Impact

Regarding disparate impact, the district court was convinced by the testimony of three experts demonstrating that SB 14 had an excessive and disparate burden on minority voters.  The court concluded that SB 14 disproportionately affected poor voters, who disproportionately were minorities, who would be less likely to be able to obtain the types of ID required for voting under SB 14.  It also found that SB 14 placed many specific burdens on obtaining such necessary ID, including the cost of obtaining the necessary documents, difficulty with birth certificates, long distances to travel to a DPS office, a strict disability exemption, and a burdensome alternative of absentee voting by mail, as many of the Plaintiffs testified.

Discriminatory Effect

Plaintiffs alleged that SB 14 violated Section 2 of the Voting Rights Act, proscribing voting standards that resulted in the denial or abridgement of the rights of citizens to vote on the basis of their race or color.  Violations of Section 2(a) can be proven by showing discriminatory effect alone.  Thornburg v. Gingles, 478 U.S. 30, 35 (1986).  To prove discriminatory effect, the Plaintiffs needed to demonstrate that the law imposed a burden on minorities, and that the law is liked to social and historical conditions to cause an inequality in opportunities enjoyed by voters to elect their representatives. Id. at 47. The Court applied the analyses employed in the Gingles decision to assess the district court’s finding of discriminatory effect. It was convinced by statistical evidence presented by Plaintiffs’ experts that Hispanic and Black voters were disproportionately represented in the 534,512 registered voters who lacked proper identification under SB 14 and were unable to qualify for the disability exemption. The court also concluded that SB 14 disproportionately impacted poor voters who were disproportionately minorities. 

Moreover, the Court agreed with the district court’s assessment of Plaintiff’s evidence regarding the link to social and historical conditions, tracking the Gingles factors of 1) history of official discrimination, 2) racially polarized voting, 3) effects of past discrimination, 4) racial appeals in political campaigns, 5) minority public officials and responsiveness to minority needs, and 6) tenuousness of policies underlying the law.   Plaintiffs were able to identify a history of discrimination against minority voters, and a contemporary example of gerrymandered resdistricting in violation of the Voting Rights Act.  This is also supported by the low number of minority elected officials as compared to the percentage of minorities in the general population of Texas (e.g., African Americans comprise 13.3% of the population but only 1.7% of elected officials are African American; Hispanics comprise 30.3% of the population but hold only 7.1% of all elected positions).  Veasey v. Perry, 71 F. Supp. 3d 627, 638 (S.D. Tex. 2014). Additionally, the policies underlying SB 14 were found to be only tenuously related to its purported purpose of preventing fraud and increasing voter confidence.  Upon evaluation of the totality of the circumstances, the Court found the district court did not clearly err in determining that SB 14 had a discriminatory effect.

First and Fourteenth Amendment Burden

The Court declined to decide whether SB 14 also unconstitutionally burdened the Plaintiffs' right to vote under the First and Fourteenth Amendments as it confirmed the district court's determination of discriminatory effect under Section 2 of the Voting Rights Act.  These claims were vacated and dismissed.

Poll Tax

The Fifth Circuit found that SB 14 did not constitute a poll tax in violation of the Fourteenth and Twenty-Fourth Amendments.  The Court noted that SB 14 required all Texas voters to present valid ID at the polls, which did not impose a material requirement solely upon those who refused to pay the fees associated with obtaining valid ID.  Also, as amended by SB 983, SB 14 no longer imposed a direct fee for the underlying documentation and thus did not impose an unconstitutional burden under the Fourteenth or Twenty-Fourth Amendments.  The Court vacated the lower court’s judgment and rendered judgment on this issue.

Based on the above, the Fifth Circuit remanded the case to the district court to make a discriminatory purpose finding based on the records, although it also acknowledged that the November election would be arriving likely before the court had time to reevaluate the evidence.  Thus it also instructed the district court to focus on ensuring the implementation of interim relief before the general election.

Current State of Texas Voter ID Law

On September 23, 2016, Texas filed a petition for a writ of certoriari with the United States Supreme Court seeking a reversal of the Fifth Circuit Court’s findings.  Interim alternative voting identification requirements have been enacted, which are applicable to the November 2016 general election.

The voter must bring one of the following to vote in person:

1) Texas driver's license issued by DPS

2) Texas Election ID Certificate

3) Texas personal ID card

4) Texas license to carry a handgun

5) US military ID card with photograph

6) US citizenship certificate containing photograph

7) US passport

Without one of the above forms of identification, the voter must sign a sworn statement that there is a reason why the voter does not have any of the listed forms of ID, and must bring one of the following:

1) a valid voter registration certificate

2) certified birth certificate

3) current utility bill

4) government check

5) paystub or bank statement listing the voter's name and address

6) copy of original government document with voter's name and address -- if the document contains a photograph, it must be an original


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