Experts: Obama Judge Ruling Against Voter ID Headed for Likely Reversal

Critics fault lower-court decision that revised Texas law still discriminates against minorities

Wednesday’s federal court ruling striking down Texas’ revised voter identification law is only a minor setback, according to legal experts and voter integrity advocates.

U.S. District Judge Nelva Gonzales Ramos, appointed to the bench by former President Barack Obama, ruled that the new law did not ameliorate the concerns she cited with the original statute. But Hans von Spakovsky, manager of the Election Law Reform Initiative at The Heritage Foundation, predicted the New Orleans-based 5th U.S. Circuit Court of Appeals would reverse the lower court.

“The state’s very likely to win on appeal,” he said. “She’s an Obama-appointed judge, and she’s shown her ideological bias here in this latest ruling, as she has throughout this case.”

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In her decision, Ramos wrote that the new law, known as SB 5, does not impact her finding that the legislature intended to discriminate against minority voters when it passed the original law, SB 14.

“Even if such a turning back of the clock were possible, the provisions of SB 5 fall far short of mitigating the discriminatory provisions of SB 14, as detailed more fully below,” she wrote. “Along with continued provisions that contribute to the discriminatory effects of the photo ID law, SB 5 on its face embodies some of the indicia of discriminatory purpose — particularly with respect to the enhancement of the threat of prosecution for perjury regarding a crime unrelated to the stated purpose of preventing in-person voter impersonation fraud.”

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Von Spakovsky faulted the judge for finding that lawmakers intended to make it harder for minorities to vote.

“There’s no evidence of that at all,” he said.

Texas Attorney General Ken Paxton immediately announced Wednesday that the state would appeal.

“Today’s ruling is outrageous. Senate Bill 5 was passed by the people’s representatives and includes all the changes to the Texas voter ID law requested by the 5th Circuit,” he said in a statement. “The U.S. Department of Justice is satisfied that the amended voter ID law has no discriminatory purpose or effect. Safeguarding the integrity of elections in Texas is essential to preserving our democracy. The 5th Circuit should reverse the entirety of the district court’s ruling.”

Ramos invalidated the original voter ID law in 2014, determining that it had both a discriminatory intent and impact.

“It is a patronizing and racist argument.”

On appeal, the 5th Circuit agreed the law could have a discriminatory effect and sent the case back to Ramos with instructions to come up with a temporary solution for the 2016 election. That resulted in a system in which elections officials asked for identification at the polls but allowed voters to fill out a declaration indicating that they were legal voters if they did not have ID.

That form allowed voters to cite a number of reasons why did not have identification. One of the options was “other,” which allowed voters to cite justifications not specified. Texas complained that it allowed 19 people to cast ballots without citing any reason at all. They used the form to register a protest.

In the new law, Texas largely adopted the system that was in place for last year’s election but eliminated the option to simply check “other” on the form asking why voters do not have ID. Ramos indicated in April that the evidence the appeals court cited did not change her original conclusion.

On Wednesday, the judge entered an order permanently barring Texas from enforcing its law. Ramos wrote that a number of voters who checked the “other” box during last year’s election had valid justification, such as financial hardship and misunderstanding the law.

The judge also wrote that the “interim remedy was never intended to be the final remedy” for the 2016 election.

“Its use under those circumstances does not pretermit the question whether it is appropriate full and final relief in this case — or that it was the choice the Court would have imposed had the parties not agreed,” she wrote.

Von Spakovsky said Texas modeled its revised law after the federal Help America Vote Act, passed following the disputed election of 2000. He suggested that if the Texas statute is unconstitutional, the federal law must be as well.

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Von Spakovsky also knocked the assumption that black and Hispanic voters are less capable than white voters of successfully fulfilling the most basic requirements of participatory democracy, such as obtaining identification.

“It is a patronizing and racist argument,” he said.

J. Christian Adams, a former Justice Department lawyer who worked in the Civil Rights Division and now serves as president and general counsel of the Public Interest Legal Foundation, said his organization would support the state’s appeal.

“The court has yet again proven all too willing to hand down rulings which beg to be overturned on appeal,” he said in a prepared statement. “Texas’ voter identification law takes squarely into account the safety-net system which the Fifth Circuit recommended be installed last year.”

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