Early voting starts on Monday in Texas and the state wants to enforce a law that three federal courts have struck down as discriminating against poor and minority voters. The Lone Star State should change course.
Back in 2011, in the midst of a racially charged legislative environment and after some questionable procedural maneuvers, the Texas legislature passed SB14, the strictest photo ID law in the country. It requires voters to prove their identity using a short list of accepted documents. That list includes a Texas driver’s license and concealed handgun license, which are owned disproportionately by whites, but excludes documents like student IDs, which are more likely to be possessed by minorities.
In 2012, a federal district court found the law discriminated against minority voters and blocked it under Section 5 of the Voting Rights Act. Section 5 required jurisdictions with an ongoing history of racial discrimination to obtain federal approval before changing their voting practices. This stopped discriminatory laws before they could ever take effect. But in 2013, the Supreme Court rendered Section 5 inoperable in Shelby County v. Holder, opening the door for Texas to try to implement its law without requesting permission.
Hours after the Court issued its opinion, then-Texas Attorney General Greg Abbott put the law into effect, and the Brennan Center and others filed suit to block that implementation. The second federal court ruled the law was discriminatory — this time under Section 2 of the Voting Rights Act. But the U.S. Supreme Court allowed it to remain in place for the November 2014 election, deciding that the election was too near to change the voting requirements.
This August, a unanimous panel of Fifth Circuit judges, appointed by both Democratic and Republican presidents, again held that SB14 violated Section 2 by discriminating against African American and Latino voters. It also asked for further analysis of whether the legislators had intended to discriminate against minority Texans when passing the law.
That was an important victory, but in the interim, Texas has applied the law and disenfranchised poor and minority voters. The district court had noted that more than 600,000 registered voters did not have one of the accepted IDs when SB14 took effect. In the November 2014 election, people like Kim Stanger, a retired kindergarten teacher who showed her workplace ID, her voter registration card, and her library card, were turned away at the polls. Many other voters simply did not show up, a point reinforced by a recent study showing that minorities in particular, even those with proper ID, were deterred by SB14 in the last election. That tragedy is hard for Texas democracy to overcome, because once a voter is disenfranchised for an election, that vote and the voice behind it are lost.
Texas wants the disenfranchisement to continue while appealing yet again, but instead of continuing to prevent poor and minority citizens from going to the polls, the state should start giving voters more options to satisfy its ID requirement. Even other states with voter identification laws commonly accept a university ID or government employee ID.
Dragging out the appeals process to buy time for Texas’s law to be enforced is a mistake. All Texans deserve free and fair access to the ballot. Texas should stop spending taxpayer dollars on misguided appeals and instead focus on making sure all registered voters can cast a ballot that counts.
Christine Sifferman is a law student, and participant in the Brennan Center Public Policy Advocacy Clinic, at NYU School of Law.