In time for the presidential election, an appeals court has determined that Texas’ voter identification law is discriminatory. Those without a government-issued photo ID will therefore have their votes counted on the basis of other evidence of residency. If Texas turns out to be in play in November, the result could have a small but meaningful effect in Hillary Clinton’s favor. More important, the decision has great symbolic significance in an election in which Donald Trump has focused on illegal immigration. In 2008, the U.S. Supreme Court upheld a voter ID law in Indiana as a permissible way to avoid voter fraud. The different result in Texas — a state with distinctly different demographics — highlights how much things have changed in the last eight years. A federal district court had previously found that the Texas law, S.B. 14, violated both the Voting Rights Act and the Constitution, and a panel of the U.S. Court of Appeals for the 5th Circuit upheld part of the decision. Texas then asked the entire court to sit and reconsider the result. In the meantime, the 5th Circuit issued a stay that kept the law in place. The plaintiffs asked the Supreme Court to reinstate the lower court decision and block the law. In an unusual move, the justices told the 5th Circuit that if it didn’t decide the case by July 20, 2016, the court would be willing to consider a motion to block the law. The Fifth Circuit got the message — and issued its carefully crafted opinion on July 20.
The majority more or less reached the same result that the panel had. It first said that the district court had made some legal errors in determining that the Texas law was enacted with the intent to discriminate against minority voters. In particular, the appeals court chided the lower court for relying too much on Texas’s long history of voter discrimination and for giving too much weight to the testimony of the law’s opponents.
The appeals court sent the case back to the district court for a do-over on the question of intent, to take place after the election. It strongly hinted that there could be enough evidence of discriminatory intent — in particular the fact that there was no meaningful evidence of voter fraud.
This part of the holding might for the moment assuage the feelings of some Texas Republicans, who can at least say that the appeals court didn’t find that they meant to block Latinos and blacks from voting. But unlike the Equal Protection Clause of the Constitution — which, according to the Supreme Court, only prohibits intentional discrimination — the Voting Rights Act also prohibits laws that have a discriminatory effect. And the 5th Circuit upheld the district court’s judgment that the voter ID law had a disparate, racially discriminatory impact on voters.