Five years ago, Texas passed one of the strictest Voter ID laws in the country. The legal fight began immediately and has continued through this day, with critics of the law getting some assistance from the Obama administration’s Justice Department.
Now, with Republican Donald Trump set to ascend to the Oval Office, the law’s future is more uncertain than ever. Among the questions up in the air: Whom will Trump nominate to the U.S. Supreme Court seat left vacant by Antonin Scalia’s death, and how will a Trump-led Justice Department operate compared to the current administration?
“We’re not going to stand idle when a law is discriminatory,” said Leah Aden, senior counsel of the NAACP Legal Defense Fund. “The strategy may be different depending on who is in office, but we’ll fight it regardless of who’s in power.”
In July, the U.S. 5th Circuit Court of Appeals ruled that Texas’ 2011 voter ID law discriminated against minority groups, who were less likely to possess one of seven accepted types of identification. For this year’s presidential election, a federal judge ordered a temporary fix: Voters who possessed photo ID had to show it in order to cast a ballot, but those who didn’t could still vote if they presented an alternate form of ID and signed a form swearing a “reasonable impediment” kept them from obtaining photo ID.
The court’s complicated compromise was not implemented seamlessly. Voters from across the state reported instances of poll workers or signs at polling places incorrectly informing visitors that they couldn’t vote without a photo ID.
Texas Attorney General Ken Paxton appealed to the U.S. Supreme Court in September, hoping the country’s highest court would consider his arguments for why the state’s photo ID requirements do not discriminate against Hispanic and African-American voters.
Marc Rylander, a Paxton spokesman, said the voter ID fight was just one of a host of cases the Attorney General’s office currently has pending against the federal government due to the “Obama administration’s overreach.”
“We will continue to pursue all of these cases and look forward to working with a new administration to seek to conform its actions to the Constitution,” Rylander said.
Rick Hasen, an expert in voting law trends and a professor of political science and law at the University of California, Irvine, said Texas has a “very good chance” at reversing the 5th Circuit’s ruling against them if Trump appoints a conservative justice to Scalia’s seat and the court decides to hear Texas’ appeal. It would depend, he said, on how the court reads Section 2 of the Voting Rights Act, which forbids changes that discriminate against minorities.
“If the court reads Section 2 very narrowly, as I expect a conservative court majority would, that would lead to a reversal of the 5th Circuit’s decision,” Hasen said. “The Supreme Court could say that the 5th Circuit applied the wrong standards to determine whether or not that was discrimination.”
Outside of the courts, one high-profile Texas Republican has signaled an interest in tweaking the law during next year’s state legislative session, potentially emboldened by Trump’s win. Lt. Gov. Dan Patrick said in a press release this week that one of his top 10 priorities for the next session was “Photo voter ID.”
“Nothing is more critical to our democracy than the integrity of the voting process,” Patrick wrote in his statement. “Photo Voter ID is essential.”
Civil rights experts warned that any move to strengthen the law would be counterproductive due to the July ruling from the 5th Circuit.
“If you have the most conservative federal court of appeals ruling 9-6 that the photo ID law on the books is violative to the Voting Rights Act, it seems to me ridiculous and a waste of taxpayer money and time to strengthen that law in a way that further suppresses minority voting rights,” Gerald Hebert, executive director of the Campaign Legal Center and an attorney for the plaintiffs in the voter ID case, said.
Chad Dunn, a Houston-based attorney who represented groups suing the state, agreed that a change in leadership in the Oval Office will not change the basic facts already in place about the state’s current legislation.
“I don’t really see how the Legislature can make changes for this law to make it even more restrictive than it already is under a court’s order and that not running afoul of what’s already being decided in this case,” Dunn said.
Along with a pending appeal before the U.S. Supreme Court, a lower federal court is also considering the law’s future. All plaintiffs and Texas will file briefs Friday to U.S. District Judge Nelva Gonzales Ramos to reassess whether there was discriminatory intent in Texas’ 2011 law. Ramos is scheduled to reach a decision by Jan. 24.
Hebert remained hopeful that those fighting the Texas law will ultimately succeed even under a Trump administration.
“We take our cases to federal judges who are appointed for life, and even though they might be appointed by presidents of a particular political party, they also look at the facts and apply the law,” Hebert said. “No matter who the president is, the law will apply faithfully to the facts, and that’s what we intend to do.”
This story was published in The Texas Tribune Nov. 17, 2016.