Road Ahead Murky After Voter ID Ruling
County says ruling won't impact November elections
Two weeks ago, Texas' voter ID law was discriminatory. This week, it's still discriminatory, just for slightly different reasons.
On Aug. 5 – the eve of the 50th anniversary of the Voting Rights Act – the 5th Circuit Court of Appeals issued the latest ruling in the seemingly endless cycle of appeals against Texas' 2011 voter ID law. The state of Texas was appealing a 2014 ruling by U.S. District Judge Nelva Gonzales Ramos (see "Judge Throws Out Texas Voter ID Law," Oct. 10, 2014) throwing the law out on three grounds: 1) that it discriminated against minority voters; 2) that it was purposefully discriminatory; and 3) that a costly photo ID made it a de facto poll tax. But in an opinion authored by Judge Catharina Haynes, a three-judge panel of the 5th Circuit took a different tack.
First, they vacated the ruling that this was a poll tax, since the state will provide an Election Identification Certificate for free. Second, they vacated the ruling that the bill was purposefully written to be discriminatory, and remanded that back to Ramos' court for further consideration. But third, and most importantly, they upheld Ramos' ruling that, deliberate or not, Texas had suppressed minority voters.
Cue a quick response from Democrats: "Tell us something we didn't already know." Moreover, they say, they have the numbers to prove it. A recent study by Rice University's Baker Institute for Public Policy and the University of Houston Hobby Center for Public Policy found that 13% of nonvoters in Congressional District 23 stayed home in the Nov. 2014 elections because they did not believe they had the necessary ID – though in fact, most did. Hobby Center Director Jim Granato called for more study of "not just the voter photo ID law itself, but the actual education and outreach efforts to ensure all eligible voters understand what form of photo ID may be used to vote."
CD 23 is a particularly sore point for Democrats, as there was widespread surprise in 2014 when incumbent Dem Pete Gallego lost this majority Hispanic seat to African-American Republican Will Hurd. Gallego campaign spokesman Anthony Gutierrez called the new report proof of just the latest in a series of Republican attempts to steal the district through gerrymandering and voter suppression. He added, "November's election was determined not by voters but by lawmakers who deliberately created obstacles that scared off and confused potential voters."
The problem now is that the appeals court has given very little direction on how this will affect future elections. That leaves two offices in Travis County – the Elections Division, which handles in-person voting locations and mail-in ballots, and the Voter Registrar's office, which handles provisional ballots – in semi-limbo. However, Voter Registrar and Tax Assessor-Collector Bruce Elfant said he expects this latest ruling will have no impact this November: "We have to be under the presumption that we'll be under [voter ID] until someone tells us not to."
Elfant said he is not opposed in principle to photo ID. "Conceptually, it seems like a fine idea," he said, "but you have to make sure that people can get the ID," and he says that isn't happening. During the last election, 217 provisional ballots were cast in Travis County because voters did not have the correct ID with them. They had six days to provide their ID and "cure" the ballot, but that only happened in 6% of cases. That means 94% of those 217 people did not get to exercise their democratic right. More worryingly, the single zip code with the highest number of uncured ballots was 78705, covering UT-Austin and the surrounding student residential areas. There are many out-of-state students whose only state-issued photo ID is their UT ID, and Texas will not accept them at the ballot box. Moreover, Elfant added, those uncured provisional ballots represented more lost votes in one election than the total number of allegations of voter fraud in Travis County for decades. He said, "My concern is that the constitutional rights under the VRA don't apply to most citizens. They apply to all citizens."
Meanwhile, the parallel games of judicial and legislative badminton continue. In June 2013, the U.S. Supreme Court threw out Section 4 of the Voting Rights Act, defining which states have to go through Justice Department pre-clearance before enacting any voter laws or new electoral maps: Two years later, Congress still has not passed a replacement list. For Texas, it's back to district court for more consideration of the 5th Circuit's latest ruling, and there are no signs that the GOP leadership will let up. In a dour statement, Gov. Greg Abbott said, "Texas will continue to fight for its voter ID requirement."