Amid efforts to prove Texas' embattled voter ID law is discriminatory, a federal appeals panel on Friday OK'd state lawmakers' efforts to rewrite the law last year to address faults previously identified by the courts.
On a 2-1 vote, a three-judge panel of the U.S. 5th Circuit Court of Appeals reversed a lower court’s ruling that tossed out the state's revisions through Senate Bill 5. The lower court had said the changes did not absolve Texas lawmakers from responsibility for discriminating against voters of color when they crafted one of the nation’s strictest voter ID laws in 2011.
But the Legislature "succeeded in its goal" of addressing flaws in the voter ID law in 2017, Judge Edith Jones wrote in the majority opinion for the divided panel, and the lower court acted prematurely when it "abused its discretion" in ruling to invalidate SB 5.
The 5th Circuit panel’s ruling is a major victory for the state after years of losses in an almost seven-year legal battle over its restrictions on what forms of identification are accepted at the polls.
The battle dates back to 2011, when lawmakers first passed the voter ID restrictions. A separate three-judge panel and then the full 5th Circuit — which is considered to be among the country’s most conservative appellate courts — previously agreed with U.S. District Judge Nelva Gonzales Ramos that the 2011 law disproportionately burdened voters of color who are less likely to have one of the seven forms of identification the state required them to show at the polls.
But the appeals court asked Ramos, of Corpus Christi, to reconsider her previous ruling that lawmakers discriminated on purpose because of “infirm” evidence she cited. After reconsidering the case, Ramos came to the same conclusion last April.
Lawmakers worked to revise the voter ID law last year by passing SB 5, which mostly followed the lead of temporary voter ID rules Ramos put in place for the 2016 elections in an effort to ease the state's requirements. But last August, Ramos tossed the state’s revised voter ID law, saying it didn’t do enough to ameliorate the “discriminatory features” of the old law.
The Texas attorney general’s office, which is representing the state in court, appealed those findings, refuting that lawmakers purposefully discriminated and arguing that any findings of intentional discrimination should be nixed because lawmakers' revisions to the voter ID law last year changed "the nature of the law."
“The court rightly recognized that when the Legislature passed Senate Bill 5 last session, it complied with every change the 5th Circuit ordered to the original voter ID law,” Attorney General Ken Paxton said in a Friday statement.
Key to the state's defense was a change in the 2017 law that allows Texans without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID. Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification, but lawmakers also wrote into law that those found to have lied about not possessing the proper photo ID could be charged with a state jail felony.
Arguing before the 5th Circuit in December, attorneys representing the voting and civil rights groups suing the state said the "reasonable impediment" provision was a faulty remedy because of the possibility that voting "under the express threat of going to jail" would have a "chilling effect" on voters without photo ID.
They also pointed out that the list of permissible IDs remains unchanged under the state’s new ID law: a state driver's license or ID card, a concealed handgun license, a U.S. passport, a military ID card, a U.S. citizenship certificate or an election identification certificate.
On Friday, the 5th Circuit panel sided with the state's argument that Ramos' decision to reject its revisions to the voter ID law was improper because a new law would require a new legal challenge, but the court did note that opponents of the law could still separately challenge SB 5 in the future.
Judge James Graves Jr. employed striking imagery to lay out his dissent to the majority opinion. "A hog in a silk waistcoat is still a hog," he wrote before explaining that the original voter ID law was an "unconstitutional disenfranchisement of duly qualified voters."
"SB 5 is merely its adorned alter ego," he added.
With a loss in hand, opponents could be derailed in their efforts to persuade the courts to place Texas back under federal oversight of its election laws — a process called preclearance.
For decades, Texas was on a list of states and localities needing federal permission to change their election laws, a safeguard for minority voting rights. The U.S. Supreme Court wiped clean the list in 2013 but left open the possibility that states could return to the list if they intentionally discriminated in the future.
The lower court’s finding of intentional discrimination — key to those efforts — demonstrated why voters of color still need judicial protection, they argued. But the 5th Circuit on Friday ruled that Ramos erred in "apparently presuming, without proof, that any invidious intent" behind the original law "carried over to and fatally infected SB 5."
"The court here overlooked SB 5’s improvements for disadvantaged minority voters and neither sought evidence on nor made any finding that the Texas legislature in 2017 intentionally discriminated when enacting SB 5," Jones wrote.
But lawyers for some of the law's challengers noted the 5th Circuit did not analyze the intentional discrimination finding attached to the 2011 version of the voter ID law.
Some of the challengers said they were "undeterred" by the 5th Circuit's decision and vowed to continue fighting discriminatory laws. "Our view today is the same as it has been since the first day of this litigation — Texas' voter ID law is discriminatory," said state Rep. Rafael Anchia, chair of the Mexican American Legislative Caucus.
The challengers can still appeal the ruling. They can ask the full 5th Circuit to reconsider the case or they can look to the U.S. Supreme Court for relief.
This article originally appeared in The Texas Tribune.