During the first week of early voting for the 2016 presidential elections, civil rights lawyers took issue with this sign outside of a polling place in Cuero. It did not mention options for casting a ballot without photo ID. (Photo: Bob Daemmrich /The Texas Tribune)
(REPORT) — The U.S. Department of Justice on Monday ditched its longstanding position that Texas lawmakers purposefully discriminated against minority voters by passing the nation’s strictest voter identification law in 2011.
The move came one day before a federal judge was scheduled to hear arguments on that high-stakes voting rights question, and it highlighted yet another instance in which President Donald Trump has dramatically departed from the path of his predecessor.
Former President Obama’s Justice Department originally teamed up with civil rights groups against Texas throughout the long-winding legal battle over the ID law, known as Senate Bill 14. But on Monday, lawyers for U.S. Attorney General Jeff Sessions told parties that they were dropping a claim that Texas lawmakers intentionally discriminated against Latino and African-American voters.
The Justice Department’s move did not change its position that the ID law has a “discriminatory effect” on certain voters. A federal appeals court has already resolved that issue, ruling against Texas.
But U.S. District Judge Nelva Gonzales Ramos was scheduled to weigh a more specific question Tuesday: Whether lawmakers knowingly discriminated.
A ruling against Texas could ultimately put it back on the list of states needing federal approval (called “preclearance”) before changing election laws. A 2013 Supreme Court ruling sprung Texas and other states with a history of discrimination from that list.
In a filing Monday afternoon, the Justice Department dropped its claim that Texas purposefully discriminated against voters, saying it preferred to give lawmakers a chance to pass measures this legislative session aimed at fixing any “alleged infirmities” with the current ID law.
The filing did not change the department’s longstanding position that the 2011 had a “discriminatory effect” on voting.
Texas Attorney General Ken Paxton cheered the development Monday.
“It’s great for a Justice Department to let the Legislature deal with our own problems,” he told the FOX Business Network.
Danielle Lang, deputy director of voting rights for the Campaign Legal Center, one of several groups challenging the Texas law, vowed to press on in the case — even without the federal government’s help.
“None of the facts have changed, just the administration,” she said in an interview. “We will be arguing the same claim, and we think it’s really disappointing that the Department of Justice is backing away from its enforcement of voting rights.”
Rick Hasen, a professor at the University of California, Irvine’s law school who specializes in election law, suggested the Justice Department’s move would only minimally affect arguments in the Texas lawsuit, since civil rights lawyers were still challenging the state. But he called the development “notable” for what it foreshadowed about future voting cases.
“It means DOJ is pulling back from aggressive defense of voting rights,” Hasen wrote Monday on his Election Law Blog. “And I predict, in cases like Texas and North Carolina, eventually DOJ will be on the other side of this issue, supporting the right of states to make it harder to register and vote.”
In a 2014 ruling, Ramos found that Texas intended to discriminate, but the U.S. 5th Circuit Court of Appeals — in a ruling affirming the law’s discriminatory effect — instructed Ramos to reconsider the evidence. The higher court’s majority wrote that some evidence “could support” Ramos’ conclusion but called her conclusion “infirm.”
In November, under Obama, the Justice Department argued that “a wealth of evidence” suggests that lawmakers consciously discriminated, including the state’s lengthy history of discrimination in elections and a shift in demographics that could threaten current officeholders.
The lawyers also argued that Texas Republicans took advantage of an “extraordinary degree of procedural irregularities” during the 2011 legislative session to address “a nearly nonexistent problem” and that they refused to answer direct questions about how the voting rules would affect minority voters.
The other plaintiffs have made similar arguments.
Paxton’s lawyers counter that opponents have no smoking gun.
“Despite their unlimited access to the confidential communications of Texas legislators who supported SB 14,” Paxton’s team wrote, “plaintiffs could proffer no evidence that any legislator harbored even a private intention to disenfranchise minority voters.”
Texas and the United States had asked to delay Tuesday’s hearing until state lawmakers considered new legislation filed in the current legislative session: state Sen. Joan Huffman’s Senate Bill 5.
Her bill would add options for Texans who say they cannot “reasonably” obtain one of seven forms of ID currently required at the polls, similar to court-ordered rules temporarily in place for last November’s election. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.
Plaintiffs argued — convincingly, it turns out — that Huffman’s bill could “ameliorate some of the discriminatory effects” of the current law. However, Huffman’s bill is irrelevant to whether lawmakers discriminated against certain voters in 2011.
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