Last week’s ruling, in which U.S. District Court Judge Nelva Gonzales Ramos denied almost all of a set of motions filed by [AG Greg] Abbott’s office to dismiss the case before it goes to trial, suggests that keeping the law in place won’t be a slam-dunk for the AG and his allies.
To be sure, the ruling itself wasn’t a surprise—and election law experts caution not to read too much into it. All Ramos did was give permission for the law’s challengers to make their case, as any good judge would have done, they say. The final ruling, of course, will come down to whether the plaintiffs can present facts that prove that case during the trial, scheduled to start September 2.
Daniel Tokaji, a law professor at the Ohio State University, said some of Texas’s arguments “don’t pass the laugh test,” so it makes sense that Ramos didn’t give them the time of day.
But the approach taken by Ramos, an Obama appointee—and in particular, the unequivocal way in which she rejected Texas’s effort to narrow the scope of federal voting protections—suggests the trial could play out on favorable terrain for the law’s challengers.
Here’s why: Central to the lawsuit challenging the ID measure is the claim that it violates Section 2 of the Voting Rights Act, which bars racial discrimination in voting. In its motion to dismiss the case, Texas argued that Section 2 bars only intentional discrimination, not actions that have a discriminatory effect. In other words, the law’s challengers should have to show that the state consciously set out to make voting harder for blacks or Hispanics—which would be a heavy lift indeed.
That’s not a view that’s won much acceptance from the courts—but it is championed by some prominent conservative legal scholars, who say interpreting Section 2 more broadly risks going beyond what the Constitution allows.
Ramos gave that argument short shrift. “Defendants are incorrect,” she wrote, noting that Congress’s explicit expansion of Section 2 to cover results, not just intent, “has been held to be consistent with the scope of the 15th Amendment.”
And Ramos went on to offer a clear statement of just what the VRA requires that the law’s challengers show: that the law’s disproportionate impact on racial minorities is not just incidental, but is the result of how the ID requirement interacts with past discrimination.
“Plaintiffs have alleged that Hispanic and African-American voters are disproportionately without photo identification and without the resources to easily obtain [state-issued ID cards],” Ramos wrote, rejecting Texas’s claim that the case should be scrapped because the challengers had merely shown an incidental “disparate impact” on minorities. “Plaintiffs have alleged that this disproportionality is related to past intentional discrimination and its lasting socio-economic effects. Thus they do not rely on disparate impact alone.”
That holistic approach was at the heart of the ruling in April that struck down Wisconsin’s voter ID law—an opinion that voting-rights groups praised for its nuanced and sophisticated understanding of how discrimination works.
Ramos took a similarly broad view of the Voting Rights Act when she dispatched the state’s claim that the ID law doesn’t encroach on the right to vote because even Texans without an ID can get a state-issued identification card. To support that view, Texas argued that the plaintiffs must show that at least somebody faced an insurmountable burden in voting. Under that interpretation, the law’s challengers would have faced a high bar at trial, even if Ramos allowed the case to go forward.
“Defendants argument is incorrect,” Ramos wrote. “Plaintiffs are required to show a denial or abridgement [Ramos’s emphasis] of the right to vote. Whether the right to vote is completely prevented or partially restricted, the matter is actionable under Section 2.”
That’s a pretty clear statement, and it’s what plaintiffs would have hoped for. There hasn’t been a trial date set, and this is still going to be a tough fight, but it won’t be any tougher than it needs to be. Which is tougher than it used to be before the Shelby case, since now the burden of proof is on the plaintiffs, not the state. For a preview of how things may go here, keep an eye on the North Carolina lawsuit, because if their abrogations of voting rights aren’t illegal, it’s hard to say what would be. The Morning News editorial board is rooting for the plaintiffs in that case, and by extension in Texas. Oh, and remember also that voter fraud just doesn’t exist, meaning that the justification of these voter ID laws is built entirely on fiction. Well, the stated justification for them, anyway.