The U.S. 5th Circuit Court of Appeals ruled yesterday that Texas’ voter identification law violates federal law prohibiting racial discrimination in elections. Texas Attorney General Ken Paxton spent $3.5 million taxpayer dollars to get there.
The conservative court ruled that the law at issue, SB 14, which limits the acceptable forms of voter identification to a driver’s license, state ID, concealed handgun permit, passport, U.S. citizenship certificate, military ID, or special voter ID, is discriminatory as written. It is considered to be the nation’s strictest voter ID law, due partly to the fact that 600,000 Texans who are otherwise eligible to vote do not have one of these forms of ID.
The decision includes an excerpt of the testimony of Dr. Orville Vernon Burton, a professor of history and sociology at Clemson University, who addressed the inventive methods the Texas legislature has historically used to deny minorities the vote, including the all-white primary (only white voters were allowed to cast ballots), the secret ballot (a rule that prohibited anyone from assisting an illiterate voter to cast a vote), and explicit literacy tests. When asked to identify what the official stated reason for each of these discriminatory restraints was, Professor Burton testified as follows:
Q: What, in your opinion, was the stated rationale for the enactment of all[-]White primaries in Texas?
A: The stated rationale was voter fraud.
Q: What was the stated rationale, in your opinion, for the use of secret ballot provisions in Texas?
A: The stated rationale was to prevent voter fraud.
Q: And what was the stated rationale, in your opinion, for the use of the poll tax in Texas?
A: The stated rationale by the State was to prevent voter fraud.
Q: And how about the stated rationale for the use in Texas of re-registration requirements and voter purges?
A: The stated rationale was voter fraud.
Q: Dr. Burton, in your expert opinion, did these devices actually respond to sincere concerns or incidents – incidences of voter fraud?
A: No.
In addition to an implausible stated rationale for the bill—voter fraud—the court was also stymied by the extraordinary measures Governor Perry and others took to pass SB 14. The judges seemed to think, considering the fact that the Texas Legislature meets for regular sessions for less than five months out of every two years, that it probably has more pressing things to do, like pass a budget, than expedite a law with no valid purpose.
In writing the majority opinion, Judge Catherina Haynes stated, “The Legislature is entitled to set whatever priorities it wishes. Yet, one might expect that when the Legislature places a bill on an expedited schedule and subjects it to such an extraordinary degree of procedural irregularities, as was the case with SB 14, such a bill would address a problem of great magnitude. Ballot integrity is undoubtedly a worthy goal. But the evidence before the Legislature was that in-person voting, the only concern addressed by SB 14, yielded only two convictions for in-person voter impersonation fraud out of 20 million votes cast in the decade leading up to SB 14’s passage. The bill did nothing to combat mail-in ballot fraud, although record evidence shows that the potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.”
Huh. We spent $3.5 million to prevent two voter impersonators over the next decade. Or was it $3.5 million to prevent more than half a million Texans from voting?
Judge Haynes isn’t waiting on Paxton for an answer.
“As we have explained, the absence of direct evidence such as a ‘let’s discriminate’ email cannot be and is not dispositive.”
