Focused Read in 4-5 minutes
The right to vote just
suffered one of its worst losses of the Trump era
Want to keep poor voters
of color from casting a ballot? A federal appeals court has your
back.
A divided panel of one of
the most conservative federal courts in the country held on Friday
that a Texas voter suppression law is legal and should
remain in effect.
Moreover, should Judge Edith Jones’ reasoning for
the panel be embraced by the Supreme Court, it could enable state
lawmakers to rescue laws enacted for the very purpose of
disenfranchising voters of color.
Friday’s decision
in Veasey v. Abbott is the latest in a long saga of
litigation challenging Texas’ voter ID law...
Although voter ID’s
defenders typically defend the laws as necessary to prevent voter
fraud at the polls, such fraud barely exists...The lead opinion in a Supreme Court case
enabling voter ID laws was only able to cite one example of in-person
fraud over the course of 140 years.”
Similarly, as courts
determined in earlier proceedings in the Veasey litigation,
Texas only convicted two people of in-person voter fraud out of 20
million votes cast in the decade before the state enacted a strict
voter ID law.
Texas initially enacted a
strict voter ID law in 2011.
Five years later, the full United
States Court of Appeals for the Fifth Circuit held that this law
violates the Voting Rights Act’s prohibition on laws that result
“in a denial or abridgment of the right of any citizen . . . to
vote on account of race or color.” ...
The appeals court also
sent the case back down to a trial court, to reexamine whether the
law was enacted for the purpose of discriminating on the
basis of race. ...
Then, about a year ago,
the trial court concluded that, yup, Texas’ law was enacted
with racist intent.
Judge Jones’ opinion for the Fifth Circuit does
not so much contest this finding as render it meaningless.
(Emphasis is mine.)
Jones relies heavily on
the fact that, in 2017, Texas enacted a new voter ID law watering
down the stricter 2011 law. After the Fifth Circuit struck down
Texas’ original 2011 law, the trial court allowed Texas to
implement a weaker form of its voter ID law for the 2016 election —
essentially, Texas could demand that voters show photo ID, but voters
who were unable to obtain an ID could sign an document explaining why
and still be allowed to vote.
The 2017 law largely
tracks the interim remedy announced by the court in 2016, although it
only allows people without photo IDs to cast a ballot if they lack
the ID for one of seven defined reasons. Voters without IDs also must
sign this document under threat of perjury charges, potentially
intimidating voters against casting a ballot.
Nevertheless, Judge Jones
argues that the 2017 amendments to the 2011 law effectively washes it
clean of sin.
“Unless remedial legislation designed to address
voting rights violations is itself infected with a discriminatory
purpose,” Jones claims, “federal courts are obliged to defer to
the legislative remedy.”
The thrust of Jones’
opinion, in other words, is that, even though a federal court
determined that Texas enacted strict voter ID for the purpose of
discriminating against minorities, the state’s entire voter ID
regime will be deemed free of racist intent —
unless the plaintiffs
can prove once again that the new law was enacted for a racist
purpose.
That won’t wash away the
Fifth Circuit’s previous decision striking down the 2011 law, but
it will make it very difficult to sustain a finding that a law was
enacted with racist intent.
Without such a finding, courts will only
be able to hand down limited remedies protecting victims of racial
voter discrimination.
Proving invidious intent
is always challenging. Judges are not mind-readers, and the task of
divining illegal intentions from a complex legislative process
involving dozens of lawmakers is inherently difficult.
Judge Jones’
standard effectively requires plaintiffs to run through this gauntlet
twice when a state amends a racist law.
Indeed, Jones’ standard
could potentially force them to clear this difficult hurdle over and
over again.
Under Jones’ opinion in Veasey, a state could
enact a law for the very purpose of keeping many voters of color from
the polls. Then, when they are caught doing so by a federal court,
they could enact very minor amendments that do little to fix the
underlying law.
Courts would then be obligated to defer to this
non-solution, unless the plaintiffs could prove that the amendments
were motivated by racism.
And even if the amended
law is struck down, the state could just respond with a new set of
largely cosmetic amendments. And state lawmakers could repeat the
process over and over again until it they are fortunate enough to
draw a friendly panel of judges inclined to permit voter suppression
in the first place.
Lest there be any doubt,
Jones is emphatically such a judge. Though the Fifth Circuit voted 9-6 that Texas’ 2011 voter ID law violates the Voting Rights Act,
Jones wrote a caustic dissent demanding that the Texas
legislature be given a presumption of white racial innocence.
(Emphasis is mine.)
“By keeping [the
discriminatory intent] claim alive,” Judge Jones wrote, “the
majority fans the flames of perniciously irresponsible racial
name-calling.”
She then compared the nine judges in the majority to
“Area 51 alien enthusiasts who, lacking any real evidence, espied a
vast but clandestine government conspiracy to conceal the ‘truth.’”
(Emphasis is mine.)
Now that Jones has had her
say, Veasey is very likely to wind up before the Supreme
Court. As Judge James Graves points out in dissent, Jones’
presumption of racial innocence is at odds with a Fourth Circuit
decision striking down North Carolina’s amended voter ID law.
Typically, when federal appeals courts disagree on the same legal
question, the Supreme Court takes up the case. ...
You
can read more here
( Illustration courtesy of The Observer )
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