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McNeely: Texas in a mess with voter ID

April 19, 2017 at 10:43 p.m.


To no one's surprise, U.S. District Judge Nelva Gonzales Ramos still thinks the Texas voter ID law is unconstitutionally discriminatory.

Ramos, of Corpus Christi, first made that finding in 2014 about Senate Bill 14, passed in 2011 by the Texas Legislature. Importantly, if her ruling survives appeals — and so far, every court has agreed with it — Texas could again be required to have election law changes pre-cleared by the federal government.

Texas and several other predominantly Southern states had been required by Section 5 of the federal Voting Rights Act to get clearance from the Department of Justice or a three-judge federal court in Washington, D.C. But the U.S. Supreme Court nullified that requirement in 2013 in a case called Shelby County v. Holder, saying the conclusions on which the requirement was based were out of date.

However, Section 2 of the act could put Texas back under the pre-clearance requirement, if discriminatory policies since the court's 2013 ruling are proven.

Ramos in 2014 doubted the state's contention that the Republican-dominated Legislature's law was needed to combat voter fraud. Instead, she wrote, it was a "pretext" to suppress voting by Hispanics and African-Americans, who lean strongly Democratic.

Then-Texas Attorney General Greg Abbott had appealed her initial decision to the U.S. 5th Circuit Court of Appeals. A three-judge panel in 2015 agreed the law was discriminatory. So Attorney General Ken Paxton, who succeeded Abbott when he became governor, asked for and got the case to be heard by the full 15-justice 5th Circuit.

That court agreed in July that the law had an improper and disproportionate impact on minority voters because they were less likely to have a photo ID required by the law.

The Texas Secretary of State's Office had estimated in 2011 that about 605,500 registered Texas voters might not have a state-issued license or ID.

The Legislature also only concentrated on in-person voting, Ramos observed, despite the fact a state investigation "yielded only two convictions for in-person voter impersonation fraud out of 20 million votes cast in the decade leading up to SB 14's passage."

She pointed out the bill "did nothing" to deal with mail-in balloting, "which is much more vulnerable to fraud."

But in sending the case back to Ramos, who was appointed to the bench by President Barack Obama, the court instructed her to flesh out her finding that discrimination by the Republican legislative majority was intentional. It also told Ramos to specify additional forms of identification for use in the 2016 general election beyond the seven SB 14 allows.

The seven acceptable IDs were a state driver's license, election identification card, or personal ID card, issued by the Texas Department of Public Safety; a concealed handgun license; a U.S. passport; a military ID card; or a U.S citizenship certificate with a photo.

That is fewer qualifying documents than such laws allowed in any other state — despite efforts by legislators to amend SB 14 in 2011 to add more, Ramos noted.

For the 2016 election, she got the state and the law's challengers to agree on several additional ways to prove identity: a voter registration certificate, a birth certificate, a current utility bill, a bank statement, a government check, a paycheck or "any other government document that displays the voter's name and address."

The voter also had to sign a "reasonable impediment declaration," but was permitted to vote using a regular ballot.

A major change in the legal and political climate around voter ID laws is that Republican Donald Trump has replaced Democrat Obama in the White House.

Obama's Department of Justice had joined in the suit against Texas claiming intentional discrimination. Trump's Justice Department under new Attorney General Jeff Sessions on Feb. 27 dropped that opposition. Trump and Sessions have claimed voter fraud is a major problem and backed voter ID laws.

That could signal a difference in the Department of Justice's attitude on pre-clearance decisions — which might prompt those seeking federal pre-clearance of Texas election law changes to take their cases instead to Washington federal courts.

Paxton indicated the state would appeal Ramos' latest ruling.

Meanwhile, the Legislature is trying to write a new voter ID law to steer around enough of the judicial objections to pass legal muster.

There also are questions raised in other courts about the legality of Texas congressional district lines, also on the basis of racial discrimination. Whether the Legislature will work to redraw them before being ordered to do so remains to be seen.

— Dave McNeely, an Austin columnist who covers Texas politics, appears Thursday.

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