Texas Attorney General Greg Abbott won the most recent round in the fight to require voters to show valid photo identification to cast ballots, but a potentially much bigger fight looms beyond Tuesday.
Abbott’s victory has only short-lived implications, since last month’s U.S. Supreme Court ruling that allowed Texas to enforce its voter ID law will affect only Tuesday’s election. But later a federal judge may decide whether Texas should once again be required to ask for permission from the federal government before enacting changes to election laws, a ruling that could affect Texas and possibly other states for years.
“That might be bigger than the ID issue itself,” said Richard Hasen, an election law expert and a professor at the University of California, Irvine School of Law.
Texas and North Carolina, which also has a voter ID law facing a legal challenge, are test cases for the Justice Department, Hasen said.
The Supreme Court last year struck down a provision of the Voting Rights Act that required mostly Southern states and other jurisdictions with histories of discrimination to seek federal approval for election law changes. Justice Department officials see the Texas and North Carolina challenges as their best chances to restore the requirement in certain circumstances under a rarely used provision of the Voting Rights Act.
If plaintiffs in Texas or North Carolina successfully revive oversight requirements, then other states might be reluctant to pass strict voting laws. Conversely, if the plaintiffs’ efforts fall flat, those states might be emboldened to pass hard-core voter ID laws like Texas’, Hasen said.
Attorney Chad Dunn — who is representing the lead plaintiffs in the Texas case: U.S. Rep. Marc Veasey, D-Fort Worth, and the League of United Latin American Citizens — agreed that the outcomes of the cases in Texas and North Carolina will define the scope of the Voting Rights Act nationwide.
Dunn added that Texas should return to federal oversight, known as pre-clearance, to prevent discrimination at the polls.
“It worked for us for three decades,” he said.
Abbott, whose office is defending the law, sees the issue much differently. Texas’ voter ID law is not discriminatory and is essential to prevent voter fraud, Abbott has said all along.
Further, the potential for Texas to be brought back under federal oversight would be paramount to the White House attempting to assert too much control over Texas elections, said Lauren Bean, a spokeswoman for Abbott.
“These are desperate efforts by partisan groups who are attempting to cede the state’s sovereignty and authority to determine its own elections to the federal government,” she told the American-Statesman.
Long legal battle
The Texas voter ID battle began in 2011 when the GOP-controlled Legislature passed one of the nation’s strictest such laws, requiring one of seven forms of government-issued ID to cast ballots. At the time, the law needed to be approved by the federal government. But two years later, the U.S. Supreme Court gutted the provision of the Voting Rights Act that required federal oversight for some jurisdictions, including Texas. The high court’s move paved the way for the voter ID law to be enacted immediately.
Civil rights groups — later joined by the Justice Department — responded with a lawsuit to block the law.
U.S. District Court Judge Nelva Gonzales Ramos in Corpus Christi heard the case and ruled last month that Texas’ voter ID law is unconstitutional and discriminatory.
Abbott’s office immediately petitioned for — and was ultimately granted — a temporary order from the Supreme Court to allow the law to be in effect Tuesday. Abbott also appealed the ruling to the 5th U.S. Circuit Court of Appeals, which has yet to rule.
The parties on both sides also are waiting for an additional hearing in Ramos’ court about putting Texas back under federal oversight, using the so-called bail-in provision.
On Friday, Ramos said she would wait until 5th Circuit rules before she decides whether Texas should undergo federal clearance again.
Dunn and the other plaintiffs’ lawyers have been buoyed by a panel of federal judges in Washington that found evidence of intentional discrimination when the Texas Legislature passed its legislative and congressional redistricting maps in 2011.
A separate panel of federal judges hearing the redistricting case in San Antonio should agree with their colleagues in Washington and choose to reinstate the pre-clearance requirements in Texas, Dunn said.
Not surprisingly, lawyers for the state don’t agree.
The state is confident that the maps passed by the Texas Legislature will comply with both the Voting Rights Act and the U.S. Constitution, Bean in Abbott’s office said. And the state will take the fight as far as possible to avoid federal oversight, she added.
“We will continue to seek protection with the land’s highest court from overreaching federal government action,” Bean said.
ACCEPTABLE FORMS OF VOTER ID
• Texas driver’s license issued by the Texas Department of Public Safety
• Texas Election Identification Certificate issued by DPS
• Texas personal identification card issued by DPS
• Texas concealed handgun license issued by DPS
• U.S. military identification card containing the voter’s photograph
• U.S. citizenship certificate containing the voter’s photograph
• U.S. passport