Attorney General Ken Paxton and Solicitor General Scott Keller after oral arguments on the voter ID case before the U.S. 5th Circuit of Appeals in New Orleans on May 24, 2016. | Photo by Cheryl Gerber for The Texas Tribune
NEW ORLEANS — A top lawyer for Texas fiercely defended the state’s strictest-in-the-nation voter identification law on Tuesday, in a high-profile case that could ultimately determine at what point states that assert that they are protecting the integrity of elections cross over into disenfranchisement.
Standing before all 15 members of the U.S. 5th Circuit Court of Appeals, Texas Solicitor General Scott Keller argued that judges were wrong to conclude in two previous rulings that the Texas Legislature discriminated against minority and low-income voters in passing a 2011 law that stipulates which types of photo identification election officials can and cannot accept at the polls.
If those rulings are left as written, “all voting laws could be in jeopardy,” Keller said before a packed courtroom that included his boss, Texas Attorney General Ken Paxton.
Lawyers representing the U.S. Department of Justice, minority groups and other plaintiffs disagreed, asking the judges to affirm what a lower court — and a three-judge panel in this same courthouse — previously concluded: that Senate Bill 14 has a “discriminatory effect” on Hispanic, African-American and other would-be voters in violation of Section 2 of the Voting Rights Act.
Only a handful of judges asked questions at length on Tuesday, making it difficult to know where the majority stands. But the 5th Circuit is considered among the nation’s most conservative, with 1o of its members having been appointed by Republican presidents.
Paxton left the courtroom Tuesday feeling “optimistic” that the law, “which has worked” in preventing voter fraud would survive, he told the Tribune.
“There’s been no discriminatory effect shown – they never provided any evidence,” Paxton said. “We’ve done everything we can to provide a way for people to vote. It’s clear.”
Asked whether Texas should also strengthen rules for absentee voting, considering that experts say those ballots are far more prone to fraud than those cast in person, Paxton said that was “totally up to the legislature.”
He added, however: “Anything that eliminates fraud is usually good.”
Chad Dunn, an attorney for the plaintiffs, said he wouldn’t bother trying to read the judges’ leanings based on their questions, but he nevertheless felt confident, calling the Texas law “indefensible.”
In the courtroom, opponents of the rule argued that not all voter ID laws violate the federal law, but that the state’s unusually short list of what election workers can accept at the polls is particularly burdensome for certain voters — particularly minorities.
“The question is whether there are requirements in SB 14 that are needlessly hard” for certain voters, Dunn told the judges. “The details of this law – which have never been justified — are what make this unconstitutional.”
The Texas law requires most citizens (some, like people with disabilities, can be exempt) to show one of a handful of types of identification before their ballots can be counted. Those include: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card or a U.S citizenship certificate with a photo.
Texas is among nine states categorized as requiring “strict photo ID,” and its list of acceptable forms is the shortest.
Experts have testified that more than 600,000 Texans lack such identification, though not all of them have necessarily tried to vote. Those citizens can obtain “election identification certificates” free of charge, but only if they are able to produce a copy of their birth certificate.
Voting rights experts are watching closely, saying this is one of two such battles, alongsideone in North Carolina, that the U.S. Supreme Court — currently split along ideological lines — may ultimately decide.
In defending its law, Texas points to a 2008 U.S. Supreme Court ruling — Crawford v. Marion County Election Board — that determined that an Indiana photo ID law should be upheld even if it was “fair to infer that partisan considerations may have played a significant role” in its enactment. At that time, the high court said Indiana had a “valid interest” in “deterring and detecting voter fraud” and had implemented the law neutrally.
“The plaintiff’s aim here, is to essentially try to re-litigate Crawford,” Keller argued Tuesday.
Judge Edith Jones, a Ronald Reagan appointee, agreed with Texas that the Crawforddecision supports the notion that the “state has legitimate interest in combatting voter fraud.”
But Plaintiffs pointed out key differences between the Texas voter ID law and Indiana’s, which includes a much broader list of acceptable identification. And they asked why Texas, when drawing up its law in 2011, would not have used the three-year-old Crawford decision for guidance — instead of drawing up its much narrower requirements.
Chief Judge Carl Stewart, a President Bill Clinton-appointee, also probed that question.
“Am I missing something here?” he asked in discussing the Indiana case. Later in the arguments, he listed a host of states that require photo ID but allow more options than Texas does. “Why are you saying ‘we’re like those other states’?”
Lawyers on each side sparred over what kind of evidence is needed to prove discrimination under the law. Keller argued that voter turnout figures showing a disparate impact on minority owners was needed. Opponents of the law argued that demonstrating that the law disproportionally diminished some Texans’ “opportunity” to cast a vote was evidence enough.
If that broader view were adopted, Keller suggested, all state election laws would be more vulnerable to challenges under the federal Voting Rights Act.
Janai Nelson, arguing on behalf of the NAACP’s Legal Defense and Education Fund, pointed to the environment under which the Texas law was passed, noting that lawmakers voted for it amid a legislative session that also saw intense race-infused debates surrounding issues like immigration and sanctuary cities — raising questions about their mindset and intent in creating the ID rules.
“The role of race,” she said, “simply cannot be ignored.”
Texas maintains that the law bolsters ballot security and that there is no evidence that it prevents legitimate voters from casting ballots.
“The point of this law is to make sure that voter fraud isn’t occurring,” Keller said in an interview on the courthouse steps. “It’s not to suppress voter turnout. Often times in legislative battles, motives start to be attributed. In this case, they were by opponents, because they disagreed with the policy.”
Though a federal district court and a panel of 5th Circuit judges have ruled that the Texas requirements violate the U.S. Voting Rights Act,the law has been enforced at polling locations around the state since 2013. The outcome in here could determine whether the rules remain in effect for the presidential election in November. The U.S. Supreme Court set a July 20 timetable for the appeals court to rule.
The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues