Can Good Judges Stop Jeff Sessions?

The Department of Justice used to be on the right side in voting rights cases. Now it’s up to the federal bench to stop discrimination.

Texas voter line

Voters line up to cast their ballots on Super Tuesday, March 1, 2016, in Fort Worth, Texas.

Ron Jenkins/Getty Images

CORPUS CHRISTI, Texas—The United States Department of Justice and the state of Texas are together at last.

On Tuesday morning, attorneys representing the DOJ and Texas walked into the federal courthouse here united against challengers to the state’s draconian voter ID law. Under President Barack Obama, the Justice Department argued in support of these plaintiffs, asserting that Texas’ voter ID law violated both the Voting Rights Act and the U.S. Constitution. Now, with Attorney General Jeff Sessions—who has supported gutting the VRA—heading the agency, the DOJ has reversed course, abandoning its position that the Texas law was enacted by the state’s Republican-dominated legislature with a discriminatory purpose.

The Justice Department, in other words, has stopped asking the court to strike down the law and started asking the court to dismiss litigation against the law. It’s a startling turnabout fueled by partisanship, one that confirms progressives’ fears that Sessions’ DOJ would renounce its prior efforts to protect the franchise. And yet, Tuesday’s hearing should give opponents of the Texas law great cause for optimism: Even with the U.S. government on its side, Texas struggled mightily to defend its own statute. For now, at least, it appears the federal judiciary remains robust enough to block this kind of blatant discrimination.

Still, the DOJ’s sudden reversal made Tuesday’s hearing more than a little tense. The lawyers had gathered to tie up one loose end of this long-running case. In 2014, U.S. District Judge Nelva Gonzales Ramos held that, in addition to having a discriminatory impact on minorities, the Texas voter ID bill was enacted with an intent to discriminate against minority voters. Last July, the U.S. Court of Appeals for the 5th Circuit affirmed Ramos’ ruling with regard to impact but sent the case back down for further hearings on the question of intent. A majority found that “although some of the evidence on which the district court relied was infirm, there remains evidence to support a finding that the cloak of ballot integrity could be hiding a more invidious purpose.” It asked Ramos to confirm that, after excluding evidence that might be classified as weak, she found sufficient evidence to conclude that Texas acted with a racist purpose.

A voting restriction that has an illegal impact on minorities is still illegal, regardless of the legislature’s intent. So why did the 5th Circuit draw out the case, forcing Ramos to revisit the intent question? There is a very specific reason, one that terrifies Texas: If the court finds that the legislature did act with racist motives, it can put Texas back under “pre-clearance,” requiring the DOJ to approve all of its voting-related laws. If Ramos once again holds that Texas acted out of racism, the state may require pre-clearance indefinitely—far beyond Sessions’ tenure at the Justice Department.

Tuesday’s hearing was supposed to be all about the question of intent. But the DOJ’s last-minute move to side with Texas rather than the coalition challenging the law threw it for a loop, necessitating a discussion of the agency’s new position. John Gore, the deputy assistant attorney general for the DOJ’s Civil Rights Division, spoke briefly, urging the court to dismiss the discriminatory intent claim. (The agency’s acting head of the Civil Rights Division, Thomas Wheeler, recused himself because he advised Texas legislators as they wrote the bill. Small world!) Gore pointed out that Texas is considering an amendment that will allegedly address the legal problems with the bill, SB14.

“If it follows through,” he said, “and we are hopeful it will, that resolves this case.”

But does it? Judge Ramos wasn’t so sure.

“How,” she asked, “does a new bill affect a ruling on discriminatory purpose on SB14?” After all, an amendment can’t alter the legislature’s intent in passing the original bill. (The Trump administration may face a similar problem in its efforts to scrub Islamophobia from its next travel ban.)

“It creates a new legislative mosaic,” Gore said, with lots of feeling, if not much logic. “It paints a new picture of Texas’ intent with regard to voter ID.”

Chad Dunn, a member of the legal team representing the plaintiffs in the case, tried his best not to look aghast and very nearly succeeded.

“The Voting Rights Act does not deal around the edges,” he said in rebuttal to Gore. “It requires courts to strike down a discriminatory law and all of its tentacles. Texas may change the staging or the dress of SB14, but the underlying architecture remains.”

To Dunn, the key problem with SB14 is the limitations it places on the forms of ID voters may use at the polls. A handgun license, for instance, is sufficient to cast a ballot; a student ID is not. Minorities are significantly less likely to have the required IDs than whites. Dunn argues that SB14 was crafted with the aim to create “a disparate impact on Latinos.” Even if Texas remedies this problem, its original bill may still have been enacted with discriminatory intent, meriting federal oversight of future voting-related laws.

In her previous ruling, Ramos laid out a comprehensive case demonstrating why the legislature had intentionally endeavored to restrict the suffrage of minority voters. On Tuesday, attorneys for the plaintiffs took turns reciting her reasoning back to her. The argument here is not rocket science. In support of SB14, the Texas legislature professed fears about voter impersonation that were unsupported by evidence. It also approved IDs that minorities are much less likely to have and rejected amendments designed to lessen the bill’s impact on minorities. Gov. Rick Perry declared the bill an “emergency item,” allowing the legislature to rush it through committee to an up-or-down floor vote, altering or suspending multiple procedural rules along the way. And it did all this in the face of dramatic demographic changes that could give minorities unprecedented influence over state representation.

In short—as Ezra Rosenberg, a lawyer for the plaintiffs, said on Tuesday—“your honor, and the United States, got this right the first time around.” The court, Rosenberg said, “may infer from these shifting and tenuous rationales that there is pretext at work.” There is, he alleged, “a mountain of evidence” that Texas acted with racist intent, even if it is all circumstantial. Janai Nelson, a lawyer with the NAACP Legal Defense and Educational Fund, hit the same themes. “An overwhelming majority of factual findings unassailably supports your previous opinion,” she told Ramos. “The legislature designed SB14 with surgical precision to discriminate against minority voters. Republicans chose IDs that that Anglos were more likely to possess and excluded IDs minorities are more likely to possess. Impersonation fraud is largely mythical.” And “this aggressive fixation on an illusory problem” is evidence of unlawfully discriminatory intent.

Up until this point, Ramos remained mostly quiet, though she took extensive notes. When Angela Colmenero stood up to argue on behalf of Texas, the dynamics shifted dramatically. Colmenero, aided by a nifty PowerPoint presentation, explained that in passing SB14, the legislature was acting upon extensive evidence that voter impersonation was a serious problem in Texas. Ramos suddenly leaned forward, looking genuinely confused.

“Why was this not introduced at trial?” she asked, referring to the lengthy bench trial she held in 2014 during which Texas could not prove that voter fraud was real. “Texas,” she continued, “did not present any evidence about any of these things.”

Colmenero admitted that the purported evidence was really just testimony in House and Senate committee hearings, testimony that was not supported by any proof.

“But that’s all hearsay,” Ramos observed. “People saying X, Y, Z—that’s not evidence for a trial court. ‘So-and-so’s [deceased] grandfather voted’—that’s not court evidence.”

Even worse, Colmenero tried to blame Democrats for exacerbating SB14’s racist qualities, claiming that Democratic Rep. Rafael Anchia voted against an amendment exempting indigent voters from the ID requirement.

None of her arguments seemed to gain any traction with Ramos, and after brief rebuttal by several of the plaintiffs’ attorneys, she adjourned the court. Outside of the courtroom, I ran into Anchia—the legislator who, according to Colmenero, fought against making it easier for poor people to vote. I asked him what he made of the lawyer’s claim.

“The state intentionally misled the court,” he told me. In reality, he supported a broad indigence exemption and only opposed a “byzantine” Republican alternative that, in his view, would’ve only pretended to solve the problem. Anchia added that Colmenero also downplayed the legislature’s racism in pushing voter ID measures. “In 2005 and 2007, Republicans said the real threat was noncitizens crossing the border to vote,” he said. “This had a brown face on it when they started pushing it in the legislature.”

Anchia, though, was happy with what he saw in court on Tuesday.

“I don’t think it could have gone any better,” he said. The LDF’s Janai Nelson agreed, contending that “the judge was very skeptical of the state’s argument and attempt to mangle the record.” She pointed out that combatting “false allegations of voter fraud” is more important than ever, as government officials fling those allegations around in an effort to “destroy democratic processes.” This case, she told me, “goes far beyond Texas.”

None of the plaintiffs’ attorneys appeared particularly concerned that the Justice Department had switched allegiances. “We’re civil rights lawyers,” Chad Dunn told me. “We’re used to fighting every level of government at the same time.”

Maybe that’s the appropriate attitude. After all, having the DOJ on your side is nice, but having the law on your side is even better. Some of these lawyers have been working on this case for nearly four years. On Tuesday, they seemed to see victory approaching, no matter what tricks Sessions attempts to pull.