Trump's Justice Department wants Texas to keep invalidated voter ID law

Texas Elections 2018

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Continuing a dramatic reversal on voting rights under President Donald Trump, the U.S. Department of Justice is asking a federal appeals court to allow Texas to enforce a photo voter identification law that a lower court found discriminatory.

In a filing Thursday, the Justice Department asked the U.S. 5th Circuit Court of Appeals to block a lower court ruling that the state’s new voter identification law — Senate Bill 5, enacted this year — failed to fix intentional discrimination against minority voters found in a previous strict ID law, enacted in 2011.

Last week, U.S. District Judge Nelva Gonzales Ramos tossed SB 5, which in some ways softened the previous requirements that Texans present one of seven forms of photo ID at the polls. The new law “does not meaningfully expand the types of photo IDs that can qualify, even though the Court was clearly critical of Texas having the most restrictive list in the country,” she wrote. "Not one of the discriminatory features of [the old law] is fully ameliorated by the terms of SB 5."

The Corpus Christi judge also completely struck elements of the 2011 ID law, which SB 5 was based upon.

Texas has appealed that decision to the 5th Circuit court, and it’s asking those judges to block Ramos’ ruling while it considers the request.

Siding with Texas, the Justice Department says in its filing that the state has a “strong likelihood” of successfully arguing that SB 5 fixes discrimination in the old law. Allowing SB 5 to take effect will “avoid confusion among voters and election officials,” Thursday’s brief states.

The brief does not mention a key piece of Ramos’ rulings throughout the case: that lawmakers intentionally discriminated against Latino and black voters in passing its 2011 ID law. Findings of intentional discrimination typically allow for more sweeping remedies in court.

Former President Barack Obama’s Justice Department originally teamed with civil rights groups against Texas throughout the long and winding legal battle over the original ID law. But in February, lawyers for U.S. Attorney General Jeff Sessions ditched the Justice Department’s long-standing position that Texas lawmakers purposefully discriminated in 2011, and it has since sided with Texas on other questions.

The 5th Circuit has already ruled that the 2011 law disproportionately burdened minority voters who were less likely to have a required form of ID, and Ramos found lawmakers knowingly harmed such voters.

SB 5 would allow Texans without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID.

Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification. Those found to have lied about not possessing the proper photo ID could be charged with a state jail felony, which carries a penalty of 180 days to two years in jail — which Ramos said "appear to be efforts at voter intimidation."

Under the new law, the permissible IDs remain the same as the earlier law: a state driver's license or ID card, a concealed handgun license, a U.S. passport, a military ID card, a U.S citizenship certificate or an election identification certificate.

Proponents of the the state's ID laws have argued they are needed to bolster security at the ballot box by preventing voter fraud, but opponents cite the paucity of proven in-person voter fraud. They argue the intent was to undercut the electoral strength of the state’s growing minority population — people less likely to have photo identification or the means to obtain one. 

As the appeal of Ramos’ decision on SB 5 plays out in the 5th Circuit, the Corpus Christi judge is set to next consider whether to invoke a section of the Voting Rights Act to place Texas under federal oversight of its election laws — a process called preclearance.

For decades, Texas was on a list of states and localities needing federal permission to change their election laws, a safeguard for minority voting rights.  The U.S. Supreme Court wiped clean the list in 2013 but left open the possibility that states could return to the list if they intentionally discriminated in the future. 

Federal trial courts have ruled five times this year that Texas intentionally discriminated in passing voting laws.