Texas suffers a setback

It was ironic but perhaps fitting that the 5th U.S. 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.

What’s the remedy?

The court directed U.S. District Judge Nelva Gonzalez Ramos, the Barack Obama nominee who initially ruled against the law, to determine an “appropriate remedy.” It acknowledged that “evaluating motive, particularly the motive of dozens of people, is a difficult enterprise” and said she should consider both the legislature’s requirement for some sort of photo identification and the appeals court’s conclusion the law discriminates against African-Americans, Hispanics and the poor.

During oral arguments, Judge Haynes noted it was “unlikely that someone’s going to get up and say overtly: ‘Let’s discriminate.’” But the court said “it is also unlikely that such a motive would permeate a legislative body and not yield any private memos or emails.”

In fact, it’s not hard to figure out what is going on here, including claims of fraud that are, in a word, fraudulent. Though Gov. Greg Abbott claimed while he was attorney general that “evidence of voter fraud abounds,” a 2013 Politifact investigation found just 18 confirmed cases from 2002 to 2012 in Texas. Bush’s Justice Department likewise had trouble finding many examples.

The wave of voter ID laws dates from the GOP’s 2010 election victories, following the Supreme Court’s 2008 affirmation of an Indiana voter ID law, and perhaps inspired by the outpouring of young and minority voters who helped to elect Obama that year. Fourteen of the 15 states that have passed them had Republican governors, legislatures or both. Other GOP-run states, such as Florida, tightened laws encouraging early voting.

The Texas decision offers some hope of checking this trend, provided all the key players – Judge Ramos, the Texas GOP and the Supreme Court – agree to substantial easing of the state’s voter ID law.

Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Distributed by Tribune Content Agency.