CORPUS CHRISTI, Texas — The Department of Justice walked a fine line Tuesday on its commitment to ensuring voting rights when it asked a federal judge to give Texas a few months to try to fix a voter ID law that courts have found violates the Constitution and federal law by discriminating against minority voters.
John Gore, the No. 2 in command at the department’s Civil Rights Division, stopped short of denying that Texas purposefully discriminated against the state’s Hispanic and black voters when it passed a law in 2011 requiring citizens to present photo IDs to cast a ballot ― a position the Obama administration had taken for years.
In a shift for the federal government, he urged U.S. District Judge Nelva Gonzalez Ramos to hold off on resolving that key question in the long-running case, which was once regarded as a test case for whether the Voting Rights Act of 1965 had any life left in it after the Supreme Court scrapped one of its major provisions. To add to the symbolism, Gore’s plea came on the same day Attorney General Jeff Sessions closed out Black History Month with a paean to civil rights for all.
Which is to say, Texas Republicans ― who hold majorities in both houses of the state Legislature ― are already taking steps to pass a new voter ID law. While cautioning that the proposal might fail or be amended, Gore said the Justice Department now believes the proposed legislation will probably fix the problems the court found with the original law ― and that there’s no need for Gonzalez Ramos to take action now to determine whether lawmakers intended to disenfranchise black and Latino voters when they enacted the law in 2011.
“A new law might fix some of the issues the 5th Circuit identified,” Gore said, in a reference to an appeals court ruling last summer that kicked the case back to the lower court so that DOJ, voting rights advocates and Texas may address claims that lawmakers took race into account when approving the original voter ID bill.
If the judge moves forward with a ruling now, Gore added, the court “might have to do its work all over again,” and so he advised waiting for legislators to act so the case can be resolved “only once and not potentially twice.”
In 2014, following an eight-day trial, Gonzalez Ramos ruled that Texas’ voter restrictions amounted to a “poll tax” that violated the Voting Rights Act and the equality guarantee of the U.S. Constitution, among other findings.
But in a partial reversal, the full U.S. 5th Circuit Court of Appeals in July disagreed with Gonzalez Ramos that Senate Bill 14 was passed with a discriminatory intent ― while concluding more broadly that the voter ID provision did have a disproportionate effect on minority voters.
“My primary theme is very simple, and that is your honor got it right the first time,” said Ezra Rosenberg of the judge’s sweeping 2014 ruling. Rosenberg is an attorney for the Lawyers’ Committee for Civil Rights Under Law, one of the several civil rights organizations challenging the Texas law.
These groups found themselves in an awkward position Tuesday, sitting on the plaintiffs’ side alongside the DOJ lawyer ― while attorneys for Texas, the longtime defendant in the case, sat on the opposite side of the courtroom. On the very day Donald Trump was elected president, the federal government signaled it would take a different position in the case ― after years of opposing the law in court during the Obama administration.
Angela Colmenero, representing the state of Texas, argued that Republicans pushed the bill through only after six years of Democratic opposition made it clear that consensus on voter ID would be impossible to reach. Referencing a PowerPoint presentation screened off to her left, she said the state passed the law in response to public opinion demanding that the legislators update their system of voter registration to protect against fraud.
“I remember specifically asking about it,” Gonzalez Ramos said, referring to the scarcity of actual instances of voter fraud presented at trial. “The [5th] Circuit also realized there’s really no evidence of this voter fraud.… We can’t talk about so-and-so’s grandfather that voted when he was dead — that was not court evidence.”
Colmenero later reminded Gonzalez Ramos that when she first held the trial over the law’s legality, the voting rights plaintiffs never presented an email or public statement from any Texas legislators that showed they intended to suppress minority votes ― let alone a conspiracy between the state House of Representatives, Senate and Gov. Rick Perry.
But this, too, appeared to fall flat with the judge, who in the lead-up to the November election had already taken steps to make sure Texas did its part to inform voters that they could vote even if they lacked the proper identification.
“There can be public support for things that are unconstitutional, correct?” the judge asked.
Janai Nelson, an attorney for the NAACP Legal Defense and Education Fund, told the court that the five attorneys representing the plaintiffs didn’t have to unearth an email or public statement showing that Texas Republicans passed the law in an attempt to suppress minority votes to retain their stranglehold over state politics.
Texas has a long history of voter suppression, she argued, and legislators acted with “surgical precision” to make sure that the law would exclude photo identifications that black and Latino voters are likely to have, like the ID cards issued to students or government employees.
“These decisions were not justified by policy,” Nelson told the court. She later told The Huffington Post that “the idea that discrimination requires a ‘smoking gun’ is very outdated. The way it operates today is more subtle.”
Partisanship in Texas splits strongly along racial lines. This session, people of color account for 91 percent of the Democrats in the Texas Legislature, according to an analysis by the Texas Tribune. By contrast, roughly 96 percent of the Legislature’s Republicans are white in a state where they are a minority of the population. During his presentation, Rosenberg, the civil rights lawyer, noted that these dynamics are relevant circumstantial evidence that lawmakers had race in mind when enacting the voter ID law.
If Gonzalez Ramos were to find again that Texas intended to keep blacks and Latinos away from the polls, the state could be required to clear future changes to its voting procedures with the Department of Justice ― a process that the Supreme Court weakened in 2013 when it freed Texas and other jurisdictions with a history of discrimination from direct federal oversight.
In January, the high court left open the possibility of revisiting the Texas law at a later time. But voting rights advocates don’t see a need to wait.
“This is a law that was passed with discriminatory intent,” Rosenberg told HuffPost following the hearing. “It should not be on the books one day longer.”
Cristian Farias reported from New York.