It was ironic but perhaps fitting that the U.S. Fifth Circuit Court of Appeals issued its ruling challenging the constitutionality of the restrictive Texas voter identification law on the eve of last week’s 50th anniversary of the landmark 1965 Voting Rights Act. After all, the 2011 Texas law exemplifies current efforts to undermine that still relevant act. But though the three-judge panel concluded the Texas law has a “discriminatory effect” on the poor and minorities, the nature of the ruling and the prospects for appeal suggest this is less than the sweeping judicial success for which opponents hoped. Indeed, its Republican sponsors made clear that, despite this defeat, they still hope to win the war in the Supreme Court, if necessary. That’s hardly surprising, given the fact that Chief Justice John Roberts has repeatedly questioned the continuing validity of the 50-year-old Voting Rights Act.
Though the appeals court concluded the law’s “effect” was discriminatory, it said a lower court had not proved its conclusion the measure “was imposed with an unconstitutional discriminatory purpose.” Ultimately, this case may depend on answering this question: “If it walks like a duck, and it quacks like a duck, how much proof do you need that it is a duck?”
The Texas case marked the first federal appeals court rejection of one of the growing number of voter ID laws that have sprouted since sweeping Republican election victories for governorships and state legislatures in 2010.
Rick Hasen, law professor at the University of California Irvine and a leading voting law expert, called it “a narrow but important victory.” But, as he also noted, the judicial panel was “relatively liberal” for the generally conservative Fifth Circuit, comprising two African-American Democratic nominees and a George W. Bush choice from Dallas, Catharina Haynes, who wrote the unanimous opinion.