A strict Texas voter ID law with a complicated legal history has been remedied with a provision that allows people who lack a required photo ID to vote if they sign an affidavit stating there was a reasonable impediment to them getting one, the state’s solicitor general told a federal appeals court panel Tuesday in New Orleans.
The change renders moot any arguments against the law, passed in 2011 and reworked by the Texas Legislature in May after years of litigation, Scott Keller told a three-judge panel of the 5th U.S. Circuit Court of Appeals.
The new law eliminates “any lingering burden” on voters who for some reason cannot obtain an ID, Keller said. The reworked version also created potential criminal punishments for anyone lying on the affidavit.
Tuesday’s hearing came after the same Texas-based federal judge who blocked the tougher 2011 version of the law blocked the new version in August.
Opponents of the law said the injunction issued by U.S. District Judge Nelva Gonzales Ramos should be upheld. They echoed Ramos’ ruling that the law still requires IDs more likely to be possessed by white voters than Latinos or African-Americans.
The new law clarified that both U.S. passport books and cards would be accepted. But it didn’t expand the list of seven acceptable IDs beyond those in the 2011 version of a law that critics said was the toughest voter ID law in the country.
Gonzales Ramos, who had likened the 2011 law to a “poll tax” on minority voters, said new criminal penalties for lying on the affidavit could scare away voters fearful of making an innocent mistake on the form.
Janai Nelson, an attorney with the NAACP Legal Defense Fund, raised similar concerns Tuesday, saying the affidavit’s warning could have a “chilling effect” on some minority voters. “It takes back the very remedy that the state has provided,” she told the panel.
Judge Edith Jones frequently challenged the opponents — at one point noting that there was no evidence, amid “thousands of pages” documenting legislative work on the law, that discrimination was intended.
Chad Dunn, an attorney representing multiple challengers to the law, said the burden of proof was on the state to prove no discrimination was intended. He cited court precedents requiring that discriminatory provisions must be eliminated from the law “root and branch.”
Gonzales Ramos had issued a permanent injunction against the new version of the law. Texas persuaded a three-judge 5th Circuit panel to halt her order in September, pending the current appeal. That panel voted 2-1 for the stay, with Judge James Graves dissenting.
A new panel was seated for Tuesday’s hearing: Judges Patrick Higginbotham and Jones, both nominees of President Ronald Reagan; and Graves, nominated by President Barack Obama.
Texas argues that the affidavit allowing those without IDs to have the opportunity to vote renders challenges invalid. “The Texas Legislature has substantially amended Texas election law to provide a safeguard for voters who do not have and cannot reasonably obtain a qualifying photo ID,” a brief for the state says. “That substantial amendment alone moots the pending constitutional challenge.”
Critics say changes to the law failed to fix what they say is its discriminatory intent, including its “discriminatory picking and choosing of acceptable IDs.” Texas’ law requires residents to show approved identification, including concealed handgun licenses. But, unlike such laws passed in other states with conservative legislatures, Texas’ rules don’t recognize items such as state and federal employee IDs, university and IDs from college students — forms the NAACP Legal Defense Fund says in a news release are “disproportionately possessed by voters of color in Texas.”
Amid the numerous legal challenges since the law first passed six years ago, Texas held elections featuring court-ordered workarounds that temporarily allowed anyone without an accepted form of picture ID to vote by signing an affidavit stating why they faced a reasonable impediment to obtaining one.
That work-around was incorporated into this year’s changes — with the stiff penalties that Gonzales Ramos found unacceptable.