Would Texas's Voter ID Law Still Be Here If John Roberts Had Won the Argument in 1982?

A provision the future chief justice fought in 1982 turns out to be the key weapon against Texas's voter-ID law.

By Nathan Pippenger

Tagged Democracyrace

Four years ago, at the height of the manufactured voter fraud panic, Texas passed one of strictest voter-ID laws in the country. Initially, Senate Bill 14—which recognized concealed handgun licenses, but not student IDs—was blocked by Section 5 of the Voting Rights Act. But when the Supreme Court neutered that part of the VRA two years later, Texas wasted no time in proceeding with enforcement. Yesterday, in a rare bit of good news for voting rights, the state faced a major setback.

Shortly before Election Day 2014, a U.S. district judge ruled S.B. 14 unconstitutional and in violation of Section 2 of the VRA, finding that it would have disenfranchised 608,470 registered voters (disproportionately, as with similar laws in other states, poor and minority voters). Still, in order to avoid last-minute confusion, the law was left intact for Election Day. But yesterday, a federal appeals panel affirmed parts of the 2014 ruling, striking down the law under the VRA and signaling that conservative efforts haven’t yet rendered the Act toothless. Still, the ruling falls short in other ways, and it might have left the law intact if John Roberts’s longstanding complaints about the VRA—which I wrote about Tuesday—had won the debate.

In light of the bruises the VRA has recently suffered, the Fifth Circuit’s invalidation of Texas’s noxious law is reassuring. But it’s far from a liberal’s dream ruling. Importantly, it declines to endorse most of the more aggressive arguments of the lower court. Whereas the district judge concluded in 2014 that proponents “were motivated, at the very least in part, because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate,” yesterday’s ruling casts doubt on this finding of discriminatory purpose, and it instructs the lower court to reexamine the evidence. As Ian Millhiser notes, this “does not preclude the trial court from determining, once again, that state lawmakers had racial discrimination on their minds when they enacted this law,” but it will be harder to determine discriminatory purpose in light of such skepticism.

In fact, what ultimately torpedoed this law was the very thing that the current chief justice railed against as an assistant in the Reagan Administration: the finding of discriminatory effect, not discriminatory purpose. Following a Supreme Court ruling holding that plaintiffs had to demonstrate discriminatory purpose—in other words, bigoted motivation—in order to establish a Section 2 violation, Congress added the so-called “effects test” to the VRA in 1982. As a young Justice Department official, Roberts wrote a series of impassioned memos inveighing against this change to the law. While the existing “intent test,” he wrote, “follows logically and inexorably from the nature of the evil that [Section 2] was designed to combat,” the new “effects test” threatened to create “a quota system for electoral politics by creating a right to proportional racial representation on elected governmental bodies,” an outcome “fundamentally inconsistent with this Nation’s history of popular sovereignty.” There was no disagreement about discriminatory purpose itself, which everyone agrees is enough to doom a law. But there was disagreement about whether requiring proof of discriminatory purpose is too high a bar: a VRA that depended on establishing bigoted intent, argued proponents of the effects test, would be useless in practice. Roberts disagreed. “This argument,” he wrote, “is simply false.”

The judges in yesterday’s ruling seem to disagree: “We recognize,” they write, “that evaluating motive, particularly the motive of dozens of people, is a difficult enterprise.” And in any case, they evaluated those motives differently from the lower court—hardly a reassuring fact, unless you’re comfortable leaving voting rights up to judges’ differing impressions of what might have been in the minds of lawmakers. Thanks to the effects test, that wasn’t necessary. In the end, for all its disagreements with the lower court, the Fifth Circuit panel couldn’t deny that whatever the intent of the law’s authors, poor and minority voters bore the brunt of the rigid restrictions they imposed. This may have been decisive, since the panel declined to follow the other arguments of the district court: It disagreed not only on discriminatory purpose, but on whether the law was a poll tax, and it declined to weigh in on the constitutional question. But since “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,” it directed that court to produce an “appropriate remedy in light of this finding.” It remains to be seen what that “appropriate remedy” will be, but for now we can be momentarily thankful that the Congress, in 1982, ignored the objections of the future Chief Justice.

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Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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