A divided federal appeals court panel has thrown out a challenge to a revised voter identification law the state of Texas passed last year after an earlier measure ran into legal trouble.
In a 2-1 decision on Friday, a 5th U.S. Circuit Court of Appeals panel overturned a district court judge’s ruling that the 2017 law, known as Senate Bill 5, unconstitutionally discriminated against minority voters.
The new decision was not a surprise since a three-judge panel of the same courtstayed the lower court’s ruling in September, allowing the state to put the new law into effect. The same judge who sharply dissented from the decision last year, James Graves Jr., dissented again on Friday. However, the other two judges on the panel who ruled on Friday, Edith Jones and Patrick Higginbotham, were not part of the earlier stay ruling.
Jones wrote the appeals court’s majority opinion, which held that the 2017 law made enough changes in voting procedures to cure any concerns about the 2011 measure.
“The [district] court here overlooked SB 5’s improvements for disadvantaged minority voters and neither sought evidence on nor made any finding that the Texas legislature in 2017 intentionally discriminated when enacting SB 5,” Jones wrote. “In fact, no evidence was offered to show that the agreed interim remedy, in place for the full panoply of elections in a Presidential year, was insufficient — and that remedy served as the model for SB 5”
Jones said that opponents of the law could bring new challenges based on how it is applied in practice, but that the law should not have been blocked based on the features of its 2011 predecessor, Senate Bill 14.
Graves vigorously disagreed, in an opinion that began with the observation: “A hog in a silk waistcoat is still a hog.”
“An examination of S.B. 5 reveals how little of S.B. 14 it actually changed,” Graves wrote. “Even if S.B. 5 were, as Texas and the majority both claim, ostensibly to remove or otherwise lessen the discriminatory impacts of S.B. 14, it still does not change the reason — the discriminatory reason — why the State enacted a voter ID law in the first place. Should S.B. 5 be allowed to govern, its congenital defect would persist. … It should be quarantined.”
Justice Department spokesman Devin O’Malley said in a statement: “The Justice Department is committed to free and fair elections, and their protection is essential to our democracy. The Justice Department joined the State of Texas in arguing that SB 5 met all of the Fifth Circuit’s mandates when it was passed by the legislature, and we are pleased that the court agreed today.”
Texas Attorney General Ken Paxton hailed the decision formally throwing out the injunction against SB 5.
“The court rightly recognized that when the Legislature passed Senate Bill 5 last session, it complied with every change the 5th Circuit ordered to the original voter ID law,” Paxton said in a statement. “Safeguarding the integrity of our elections is essential to preserving our democracy. The revised voter ID law removes any burden on voters who cannot obtain a photo ID.”
A lawyer involved in fighting the voter ID measures expressed disappointment in the ruling.
“We continue to firmly believe that the Texas photo ID law is one of the most discriminatory and restrictive measures of its kind,” said Kristen Clarke of the Lawyers’ Committee for Civil Rights Under Law. “Today’s ruling, while disappointing, only concerns the remedy and does not reverse the findings which made clear that discrimination infected the adoption and design of this law. No law should be allowed to stand that is merely built on the back of a plainly discriminatory law.”
Jones and Higginbotham are appointees of President Ronald Reagan. Graves was appointed by President Barack Obama.