Voting-Booth

Originally published on Texas Lawyer. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Did Texas lawmakers intend to discriminate when they passed a voter identification law?

Yes, according to the U.S. Department of Justice.

No, according to the Office of Texas Attorney General Ken Paxton.

DOJ and Texas AG lawyers addressed Texas lawmakers’ intent in briefs filed Friday with a Corpus Christi federal court.

Those briefs are the most recent development in a long battle the DOJ has waged against the Texas voter ID law.

In July, in an en banc decision, the U.S. Court of Appeals for the Fifth Circuit ruled that the voter ID requirement has a disproportionate and therefore discriminatory impact on African-American and Latino voters.

In the same ruling, the Fifth Circuit also ordered U.S. District Judge Nelva Gonzales Ramos of Corpus Christi, before whom the voter ID case, Veasey v. Abbott, is pending, to reconsider if the lawmakers had discriminatory intent when they passed the law.

According to the DOJ lawyers’ brief, statements made by lawmakers at the time of the passage of the voter ID law, known as SB 14, show the bill’s supporters knew it would have a discriminatory impact.

Former state Rep. Todd Smith, R-Euless, who served as chairman of the House Elections Committee and was a joint sponsor of SB 14, testified: “[I]f the question is[,] are the people that do not have photo IDs more likely to be minority than those that are not, I think it’s a matter of common sense that they would be. I don’t need a study to tell me that.”

DOJ lawyers argued Smith’s “candor simply states what all legislators knew.”

Specifically, the federal government argued lawmakers knew the “history of State-sponsored discrimination, broad racial disparities in education, employment, housing, and transportation” in the state, according to DOJ lawyers.

In their brief, the Texas AG’s lawyers disagreed. They described as “baseless” the historical narrative identified by DOJ and other plaintiffs challenging the voter ID law. Instead, they cite as the historical context for the law the 2000 election, “a watershed moment when many citizens questioned the confidence they had in American electoral systems, in light of that year’s hotly contested presidential election.”

“In the aftermath, a consensus developed that numerous changes needed to be made, including changes to address potential voter fraud. A common-sense way to prevent one form of potential fraud—impersonation—is to require identification,” the Texas AG lawyers argued.

Popular support for such a law, according to the Texas AG’s brief, continued to grow throughout that decade and when Republicans won an overwhelming majority of the seats in the Texas Legislature in the 2010 elections, they passed the voter ID law.

In September, Texas AG Paxton’s office filed a petition with the U.S. Supreme Court seeking reversal of the Fifth Circuit ruling. That request is pending.

Before the presidential elections, Ramos ordered Texas, the DOJ, the other plaintiffs who challenged the law to come up with an interim plan on how to deal with the voter ID law’s legal infirmities for that balloting. As a result, Texans without a photo ID were permitted to vote on Nov. 8.

If it had been enforced, the voter ID law would have required voters to provide a Texas driver’s license, a free Texas election identification card, a Texas personal identification card, a Texas license to carry a concealed handgun, a U.S. military identification card, a U.S. citizenship certificate or a U.S. passport before they could cast a ballot.

All of those forms of identification can be difficult for people with limited means to obtain and have the effect of keeping some minority voters away from the polls, according to the plaintiffs who challenged the law.