An era of racist voter ID laws in Texas may be coming to an end.

The GOP’s Racist Attack on Minority Voting Rights Might Finally Backfire in Texas

The GOP’s Racist Attack on Minority Voting Rights Might Finally Backfire in Texas

The law, lawyers, and the court.
Aug. 25 2017 5:48 PM

Consequences in Texas

The GOP’s racist attack on minority voting rights might finally backfire.

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Courts have held nine times since 2011 that Texas intentionally discrimintated against minority voters. Above, a Rosenberg, Texas, voting station on March 1, 2016.

Erich Schlegel/Getty Images

On Wednesday, a Texas court struck down the state’s controversial voter ID law—the fifth time that a federal court has ruled against Texas’ voter ID requirement. In a 27-page opinion, U.S. District Judge Nelva Gonzales Ramos held that Texas could not cleanse its old voter ID law with a new, marginally improved bill, because it passed its original law with discriminatory intent. “As the law has no legitimacy,” Ramos explained, it must be eliminated “root and branch.” Texas doesn’t get a second shot at disenfranchising minorities.

Ramos isn’t the only judge pushing back against Texas’ war on voting rights. A day after her ruling, another federal district court found that the Texas legislature had deliberately gerrymandered the state to dilute minority votes. Its decision marked the ninth time since 2011 that the courts have held that the state intentionally discriminated against minority voters. This onslaught of rulings all lead to a similar, rather obvious conclusion: Texas Republicans intentionally disenfranchised black and Latino voters in order to maintain legislative white supremacy. And unless the Supreme Court decides to reverse this chorus of judges, the GOP’s chicanery could backfire and ensure that Texas’ voting laws are subject to even more intense legal scrutiny for years to come.

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If it feels like litigation over Texas’ voter ID law has been going on forever, that’s because it has. The state passed its infamous SB 14 in 2011. At the time, it was the most draconian voter ID law in the country, requiring voters to show one of seven forms of an authorized photo ID to vote. (Gun permits counted; student IDs did not.) In 2014, Ramos ruled that SB 14 violated the Voting Rights Act and the U.S. Constitution by disproportionately burdening minorities’ right to vote. She also held that the law was passed with the purpose to disenfranchise minorities. In 2015, a panel of judges for the 5th U.S. Circuit Court of Appeals agreed that SB 14 was unlawful. Texas appealed—but in 2016, the full 5th Circuit, sitting en banc, again ruled that the measure illegally placed a disproportionate burden on minority suffrage. The appeals court sent the case back down to Ramos to reevaluate whether Texas passed the law with an intent to discriminate.

At that point, Jeff Sessions’ Justice Department switched the federal government’s position on the law (the Obama administration had sided with the plaintiffs), insisting that Ramos should dismiss the case while Texas crafted a replacement law. But even with the DOJ now allied with Texas lawmakers, Ramos disagreed and ruled that Texas had purposely disenfranchised minorities with SB 14. Then Texas passed its new, watered-down version of the law, SB 5, which the DOJ promptly touted as a totally lawful solution. But on Wednesday, Ramos invalidated that statute as well, slamming it as “voter intimidation.” Critically, Ramos also wrote that the new bill still carried the “discriminatory taint” of the old one. Both bills were motivated by racism; neither was necessary to preserve voter integrity. (Although Texas put forth myriad “accounts of allegations” of voter fraud, it couldn’t provide a scintilla of evidence that in-person voter impersonation is a real problem in the state.)

Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, one of several groups challenging the law, wrote in an email that Wednesday’s ruling was especially powerful because Ramos did not even attempt to craft a remedial solution, such as a softened ID requirement. Recognizing the overwhelming taint of racial animus, Ramos simply struck the whole thing down. “Judge Ramos’ decision,” Clarke explained, “recognizes that a state cannot escape the consequences of its pernicious conduct without completely eliminating all vestiges of discrimination.” Put differently, Texas is effectively barred from imposing new voter ID rules for the foreseeable future.

Even better, Ramos’ ruling—along with the enfilade of similar decisions pouring out of the federal judiciary—raises the very real possibility that Texas may unintentionally bring the Voting Rights Act back from the dead. Before 2013, Texas was one of nine states that had to submit proposed voting laws to the Justice Department for “preclearance” because of their history of racial disenfranchisement. These states had to prove that any new election law enacted would not diminish minorities’ right to vote. But in its June 2013 Shelby County v. Holder decision, the Supreme Court struck down Congress’ formula for determining which jurisdictions are subjected to preclearance, citing a mostly made-up doctrine. That decision unleashed GOP-controlled legislatures in historically racist states, which immediately began suppressing minority voting rights.

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But—and this is important—the VRA has always included another provision that some have labeled its “secret weapon”: a mechanism to bring jurisdictions back under preclearance. Under this provision, which was not affected by the Shelby decision, a federal court may require a state to submit its voting laws to the DOJ for approval for a full decade if it has intentionally engaged in race-based voter suppression. That’s why Sessions urged Ramos not to decide whether Texas had suppressed minority votes with discriminatory intent—and why Texas Attorney General Ken Paxton is freaking out that she did. If Ramos puts Texas under preclearance, and the decision is upheld, the state will have to demonstrate to the federal government that its election laws don’t discriminate against minorities for the next decade. Sessions might still rubber-stamp any new law, and he likely will, but a future Democratic administration could halt the state’s war on voting rights. And Texas’ plight would serve as a warning to other states cracking down on minority suffrage.

Of course, the Supreme Court’s conservative majority could always intervene and prevent Texas from falling under preclearance by reversing Ramos. But such a decision would contradict the court’s own reasoning in Shelby County. Writing for the court, Chief Justice John Roberts explained that Congress’ preclearance formula was unconstitutional because it was obsolete, chiefly because it relied on old historical patterns rather than contemporary evidence. Ramos, in contrast, has now spent more than three years collecting and analyzing evidence that the Texas legislature purposely suppressed minorities’ right to vote. Her first 147-page opinion overflows with facts, statements, and data establishing that the Texas legislature intentionally discriminated against black and Latino voters—not only in the past, but also this decade, starting in 2011. Her follow-up opinions added further proof that the state is systematically suppressing minority votes.

If Roberts rejects Ramos’ judgment, he will have essentially acknowledged that Shelby County’s rationale was pure pretext. In his majority opinion he demanded evidence that racism is still alive in Southern statehouses; now he has it. The groups challenging Texas’ voter ID law will likely ask Ramos to place Texas under preclearance again, and she will probably comply. That means the ball will be in SCOTUS’ court again.

Shelby County, and the mass of well-documented voter suppression it quickly engendered, was born out of John Roberts’ aspiration-slash-insistence that racism is over in America. The events of the last few months suggest that this was a nice notion, simply not borne out in fact. The lower federal courts, including the indisputably conservative 5th Circuit, seem to have stopped pretending that wishing intentional discrimination away is a sound judicial strategy. The highest court in the land may want to consider that the way to get past race in America is to stop state-sponsored racism in its tracks.

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Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.