Court says Texas Voter ID law is only slightly unconstitutional

A decision by a 5th Circuit Court of Appeals panel to call the Texas Voter ID law unconstitutional isn’t as big of a win as some are making it out to be. It’s true the panel upheld a previous judge’s ruling the law violated Section 2 of the Voting Rights Act, but it’s important to look at what the panel said. They noted the law was basically unintentionally discriminatory.

As such, we conclude that the district court did not clearly err in determining that SB 14 has a discriminatory effect on minorities’ voting rights in violation of Section 2 of the Voting Rights Act. As discussed below, we remand for a consideration of the appropriate remedy in light of this finding in the event that the discriminatory purpose finding is different.

One thing which is really interesting is how the panel agreed with Texas on the problem of the previous voting system.

Simply reverting to the system in place before SB 14’s passage would not fully respect these policy choices—it would allow voters to cast ballots after presenting less secure forms of identification like utility bills, bank statements, or paychecks.

The justices then makes a couple suggestions on what ID’s should be acceptable.

One possibility would be to reinstate voter registration cards as documents that qualify as acceptable identification under the Texas Election Code….However, we recognize that the district court must assess this potential solution in light of other solutions posited by the parties, including other forms of photo identification.

There is a problem with relying on voter registration cards because they can still be used for fraud. I didn’t have to re-register to vote in Texas in 2013 despite living in Arizona for several years. Someone could have gotten a hold of my voter registration card, gone to the ballot box, and voted without being checked for ID. The justices seem to agree having Voter ID is a good thing, but they think Texas needs to allow more ID’s than the ones the state currently does. The current state law allows people to vote if they have either a driver’s license, election identification certificate, DPS personal identification card, U.S. military photo card which hasn’t expired, U.S. citizenship certificate which has a photo, a passport, or a conceal carry handgun license. It’s possible a college photo ID would work or even a debit or credit card which had a picture. One part of the bill which wasn’t agreed on suggested any other form of identification prescribed by the secretary of state. If Texas had kept that part in the enacted law, the panel may have agreed it was constitutional. To be fair, it’s understandable why the Legislature didn’t keep that part of the bill. The secretary of state position is appointed, and it’s entirely possible an unscrupulous governor could instruct them to allow ID’s which don’t have a picture.

There could be another way the state may have been able to avoid having part of the law declared discriminatory: mobile election ID centers. Senate Bill 14 could have instructed the Department of Public Safety and Secretary of State have the mobile centers (think big buses or RV-type vehicles complete with photo area, processing, and computer systems) travel the state to provide election ID’s. The state could then promote the visits through social media, news media, blogs, etc. so people would know when they could go get their election ID’s. The visits could happen for one week every six months during a non-election year and for one week every three months during an election year. The state could also consider setting up more permanent election ID centers in bigger cities like Dallas, Houston, San Antonio, Austin, McAllen or Brownsville, El Paso, and Lubbock. Those would be open for seven-ten months during an election year to make sure people who need an election ID can get them. The cost is something to consider, as is the available technology. But it’s completely possible the state could have set the mobile ID centers up, promoted them, and completely gotten the “unintentionally discriminatory” part tossed out, along with everything else the 5th Circuit panel thought wasn’t right.

Texas is probably going to appeal this to the full 5th Circuit, which it should. Voter ID is a good thing to keep elections secure. Texas’ law certainly wasn’t intended to be discriminatory and those who believe the Legislature is purposefully trying to keep minorities from voting are mistaken. Even if the full 5th Circuit rejected Texas’ case, the Supreme Court might not based on Crawford v. Marion County Election Board. But relying on the Supreme Court is a little dodgy because they’ve been known to switch positions on issues, as seen in the Lochner decision in 1905 vs. the Nebbia decision in 1934. To call the 5th Circuit’s panel decision a defeat for Texas is an overstatement. There are ways for Texas to make sure the law stands, whether it’s through tweaking or appeal. It’s going to cost taxpayer money one way or the other, but this fight is probably worth it.