The United States Court of Appeals for the Fifth Circuit ruled on Wednesday that Texas’ draconian voter ID act, known as SB 14, is illegal under federal law. In her majority opinion for the court, Judge Catharina Haynes wrote that SB 14 violates the Voting Rights Act of 1965 and thus cannot be enforced in the coming election. The decision is a monumental and unexpected victory for voting rights at the Fifth Circuit, which had previously appeared hostile to arguments that SB 14 is illegally discriminatory. It comes on the heels of a voting rights victory in Wisconsin and is unlikely to be reversed by the Supreme Court.
Haynes’ opinion for the court rests exclusively on Section 2 of the Voting Rights Act, which the Supreme Court left unscathed when it gutted a different portion of the law a few years back. Under Section 2, states are forbidden from enacting “voting practices or procedures” that have a discriminatory intent—or a discriminatory impact on minorities. SB 14, Haynes writes, ran afoul of this section by placing a disproportionate burden on minority voters, who are less likely to have a valid ID and more likely to face substantial obstacles in obtaining one. Texas argued that its stringent ID requirements, which were passed by a Republican-dominated legislature, were necessary to prevent voter fraud. But Haynes notes that there is virtually no evidence that voter fraud actually occurs in Texas. On the other hand, Haynes writes, there is “evidence to support a finding that the cloak of ballot integrity could be hiding a more invidious purpose.”
Although Haynes hints that Texas legislators may have passed SB 14 with the discriminatory intent to hamper minorities’ voting rights, she rests her opinion on the fact that SB 14 obviously has a discriminatory impact on minorities. That impact is severe: 608,470 registered voters, or 4.5 percent of all registered voters in Texas, lack the necessary ID to vote; Hispanic registered voters are 195 percent more likely than whites to lack ID; and black registered voters are a stunning 305 percent more likely than whites not to hold ID necessary to vote under SB 14.
Moreover, SB 14 “disproportionately impacts the poor, who are disproportionately minorities.” For instance, the ruling notes, 21.4 percent of eligible voters earning less than $20,000 per year lack the necessary ID, as opposed to 2.6 percent of voters earning between $100,000 and $150,000 per year. The poor are also “less likely to own vehicles and are therefore more likely to rely on public transportation. As a result, the poor are less likely to have a driver’s license and face greater obstacles in obtaining photo identification.” And Haynes pointed out that hundreds of thousands of voters in Texas would face round-trip travel times of 90 minutes or more just to get a state ID. “Of eligible voters without access to a vehicle, a large percentage faced trips of three hours or more,” she added.
One consequence of the Fifth Circuit’s previous decision to let SB 14 take effect while it considered the law’s legality is that the court now has evidence of the law’s discriminatory impact. Haynes fills her opinion with painful stories of voters—mostly poor minorities—who went to Herculean lengths to obtain the necessary ID, failed due to “an almost impossible bureaucratic morass when they tried to get the required underlying documentation,” and were consequently turned away at the polls. States are permitted to prevent voter fraud, Haynes concludes—but they do not get “a free pass to enact needlessly burdensome laws with impermissible racially discriminatory impacts.” The lower court must now craft a remedy to fix the law’s legal infirmities.
In a mewling dissent that alternates between righteous indignation and willful blindness, Edith Jones—Ted Cruz’s favorite judge—accuses the majority of “fan[ning] the flames of perniciously irresponsible racial name-calling.” Jones compares her colleagues to “Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the ‘truth.’ ” She rejects the argument—supported by ample data, evidence, and logic—that SB 14 placed a disproportionate burden on minority voters. And she accused the majority of “mov[ing] us another step down the road of judicial supremacy.”
Jones, however, is unlikely to see her arguments adopted by the Supreme Court. Four of the current justices are on the record supporting the legitimacy of voter ID laws—but the other four fiercely oppose efforts to abridge voting rights through draconian ID requirements. Without a fifth vote, neither bloc can make its views law. But a tie would simply affirm the Fifth Circuit’s decision—meaning Wednesday’s decision may well be the death knell of SB 14.