Fifth Circuit's Texas voter ID opinion is a mixed bag
Yesterday, a Fifth Circuit panel issued its opinion in the controversial Texas voter ID case. The case involves challenges under the Voting Rights Act as well as the Fourteenth, Fifteenth, and Twenty-Fourth Amendments. Particularly at issue was whether Texas’ effort to require that voters present a valid photo ID violates Section 2 of the Voting Rights Act. That provision prohibits states from passing any law that “results in a denial or abridgment” of the right to vote on account of race. In this case, the Fifth Circuit agreed with the challengers that the law violated the “results” test, mainly because statistics show that more minority voters lack a qualifying ID. But the narrow opinion rejected some of the plaintiffs’ other arguments and declined to consider others. A more detailed analysis of the case follows below.
Various plaintiffs challenged the voter ID law, known as Senate Bill 14, under several legal theories. They principally asserted that the ID requirement was passed with the intent to discriminate against black and Hispanic voters and that it has a disparate impact on those voters. Late last year, the district court gave the plaintiffs a total victory, striking down the law under Section 2 as well as all of the constitutional theories. Most significantly, the district court’s conclusion that the law was passed with a discriminatory intent raised the possibility that Texas could be “bailed in” to federal supervision of state elections under Section 3(c) of the Voting Rights Act.
The Court of Appeals panel substantially narrowed the district court’s far-reaching opinion. Most importantly, the court vacated the discriminatory intent finding. The panel criticized the district court for extensively relying on the views of the bill’s opponents that it was intended to discriminate against racial minorities, as well as for heavily weighing Texas’ pre-1965 racially discriminatory laws. And it correctly noted that mere awareness of a possible racial effect is insufficient to establish intent. As a result, the Court of Appeals directed the district court to reconsider the evidence of intent presented at trial. This holding removes the immediate threat that Texas will be placed under federal supervision.
However, the panel affirmed the district court’s judgment that the voter ID provision violates the Section 2 “results” test. In doing so, the Fifth Circuit adopted the test used recently in the Fourth and Sixth Circuits: a law violates Section 2 if it interacts with social and historical conditions to cause a discriminatory burden on minority voters. The problem with this inquiry is that it essentially devolves into a straight disparate-impact test, even though courts have always said that the results test requires more than a bare statistical showing of disproportionate impact. It is hard to imagine a scenario where statistics will not show some disparity in social conditions, even in states that did not maintain Jim Crow laws. In practice, plaintiffs need not show any state action that caused this disparity, and are thus exempt even from the weak causation requirement for disparate impact claims under the Supreme Court’s recent Texas Department of Housing case.
The question of how to apply the results test with some “bite” is quite difficult. But an extension of disparate impact liability in Voting Rights Act cases is not only problematic because of its tenuous connection to any state action. It also makes it very difficult for states to experiment with new voting laws. Recent examples bear this out: last year, the Sixth Circuit held that Ohio violated the results test by reducing the early-voting period from five to four weeks, and the Fourth Circuit found that requirements that voters register 25 days before Election Day and vote in the correct precinct were violations. Many states, including California, have no early voting at all, and the majority of states require voters to register before the election and vote in the proper precinct. These cases all show the danger that the results test may morph into the “retrogression” analysis rejected by the Supreme Court in Shelby County v. Holder.
On the whole, Texas should probably be relieved that the Fifth Circuit cut back on the district court’s analysis significantly. Also, because the Court of Appeals rejected the district court’s conclusion that the voter ID law is unconstitutional poll tax, it ordered the lower court to craft a narrow remedy, short of invalidation of the entire law. So, should this decision stand, it is possible that Texas may be able to enforce the voter ID law in some circumstances. However, it is likely that Texas will either ask the full Fifth Circuit to hear the case en banc or petition for certiorari to the Supreme Court. Either way, this is likely to be the most important Voting Rights Act case since Shelby County.