On Monday, U.S. District Judge Nelva Gonzales Ramos ruled that Texas enacted its voter ID regime with the intent to discriminate against minorities by burdening their right to vote. Her decision is certain to infuriate Attorney General Jeff Sessions and his Justice Department, which urged the court to dismiss litigation against the voter ID law instead of reaching a decision. It should also alarm Republican Texas legislators, whose continuing efforts to suppress the franchise are now in jeopardy. If Ramos’ ruling is upheld on appeal, Texas may require federal approval for every voting-related law it passes moving forward.
For voting rights advocates, Monday’s decision had a whiff of déjà vu about it. Texas passed the bill in question, SB 14, in 2011, when Section 5 of the Voting Rights Act was still in full effect. As a result, Attorney General Eric Holder had the authority to halt the law—which he did, concluding that it would curtail Hispanics’ ability to cast a ballot. Texas asked a three-judge court to reverse Holder’s decision, but it refused, agreeing with the attorney general that SB 14 would diminish the ability of minorities to “exercise the electoral franchise.”
In 2013, however, the Supreme Court gutted the VRA, depriving the attorney general of authority to pre-emptively block voting restrictions in historically racist states. Texas promptly implemented SB 14. A coalition of voting rights activists, supported by Holder’s Department of Justice, then filed suit under a remaining provision of the VRA, Section 2. This section prohibits voter suppression measures that disproportionately burden minority suffrage. Moreover, it allows states that intentionally discriminate against minority voters to be placed back under “preclearance”—the procedure that lets attorneys general review and block voting-related changes before they take effect.
Here’s where the déjà vu comes in. In 2014, Ramos issued a 147-page decision concluding that SB 14 disproportionately burdened minorities’ right to vote, and was intended to do so. In a surprise ruling, the conservative 5th U.S. Circuit Court of Appeals, sitting en banc, affirmed Ramos’ finding with regard to disproportionate burden. But it punted on Ramos’ finding of discriminatory intent, asserting that a small fraction of the evidence she relied upon was infirm. Thus, the 5th Circuit sent the case back down to Ramos, asking her to reevaluate her decision that Texas passed SB 14 with the purpose of burdening Hispanic voters.
There’s one last twist in this tale. After the 5th Circuit’s ruling, Sessions took control of the Department of Justice. Previously, under Attorneys General Holder and Loretta Lynch, the DOJ sided against Texas, urging Ramos to invalidate SB 14. But under Sessions, the DOJ reversed course. At a February hearing, DOJ attorneys urged Ramos to dismiss this litigation altogether. John Gore, the deputy assistant attorney general for the DOJ’s Civil Rights Division, told Ramos that Texas is considering a new, less draconian voter ID bill.
“If it follows through,” he said, “and we are hopeful it will, that resolves this case.”
How, Ramos wondered, could a bill passed in 2017 alter the intent of a bill passed in 2011?
“It creates a new legislative mosaic,” Gore told her. “It paints a new picture of Texas’ intent with regard to voter ID.”
Ramos declined the DOJ’s invitation to toss out the lawsuit. Instead, she issued Monday’s decision, which largely tracks her 2014 ruling. Texas, she explained, justified SB 14 using a shifting series of pretexts, none of which were rooted in reality. Republican legislators spoke about the alleged risk of undocumented immigrants casting votes—and when these fears were thoroughly discredited, they began speaking of “ballot integrity.” SB 14’s proponents were well aware that their bill would have a discriminatory impact on Hispanics, but they passed it anyway. They did so using unusual legislative maneuvers, designating the legislation an “emergency matter,” temporarily changing multiple rules, and bypassing usual procedures, hearings, and debates in order to ram the bill through.
Republicans also refused to allocate sufficient funds to educate the public about the new voter ID rules and help poor voters obtain IDs. Instead, they limited the forms of IDs voters could use at the polls—permitting, for instance, handgun licenses, but disallowing student IDs. Indeed, the legislature seemed to require those IDs least likely to be held by minority voters. And deliberations over SB 14 were, from start to finish, marred by racist and xenophobic remarks by Republican legislators.
All these facts, Ramos wrote, combined with Texas’ long history of voter discrimination, justify a finding that SB 14 was designed to burden minority voters. Texas will almost certainly appeal her ruling back to the 5th Circuit, and, if necessary, to the Supreme Court. The far-right justices, including Neil Gorsuch, are unlikely to agree that Texas intentionally discriminated against minorities. But if Justice Anthony Kennedy and the liberals agree with Ramos, she will likely place Texas back under preclearance, requiring federal approval of each new voting-related law. Under Sessions, that might not matter much—but it would allow a future Department of Justice to thwart Texas’ voter suppression measures before they take effect. The Voting Rights Act, in other words, may finally be getting some teeth back.