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DOJ Reverses Its Position in Texas Voter ID Litigation

By Casey C. Sullivan, Esq. on March 10, 2017 | Last updated on March 21, 2019

The long-running dispute over Texas's restrictive voter ID law took another turn last week, as the Department of Justice dropped one of its key objections to the law. The DOJ will no longer argue that the Texas law was enacted with discriminatory intent, the Department announced last Monday.

Texas's voter ID law, SB14, is one of the strictest in the country. After it was adopted in 2011, both the Department of Justice and civil rights groups sued, arguing that the law disenfranchised Texas voters, particularly poor and minority Texans. They won a significant victory last summer, when an en banc Fifth Circuit found that the law violated the Voting Rights Act. But the Fifth declined to rule on the DOJ's claim that the act was intentionally discriminatory, remanding that question the district court for further investigation.

Let Texas Fix It Themselves, DOJ Says

The DOJ's about-face on the question of discriminatory intent is important for several reasons. First, though an en banc Fifth Circuit ruled that the law had a discriminatory effect, it rejected the lower court's holding that the law had a discriminatory intent, finding that the court relied on "infirm" evidence. The Fifth then remanded the case back to the district court, to "reweigh" the evidence.

That reweighing will now take place without the DOJ's finger on the scale. The DOJ says that it is changing its position in order to allow "the Texas Legislature the opportunity to rectify any alleged infirmities with its voter identification law" through new legislation. The legislature, more than the courts, is better suited to remedying such violations, the DOJ said.

A bill currently before the Texas Legislature will allow expand the variety of IDs voters can use and allow affidavit voting for Texans who cannot obtain an ID.

Civil Rights Groups Will Still Pursue Discriminatory Intent Claim

The move is a "complete 180-degree turn," according to Daniella Lang, the attorney for the Campaign Legal Center, one of the civil rights groups challenging the law. Those groups will continue to argue that the law was enacted with discriminatory intent.

At a recent hearing, one of the plaintiffs' attorneys described the shift as "sad, in a way."

"You have the most important governmental civil rights agency abandoning a claim that is strong and solid and which it has steadfastly prosecuted for five years," that attorney, Ezra D. Rosenberg, said.

If the district court finds again that the law was intentionally discriminatory, Texas could be forced to seek federal approval for any future changes to its voting laws, according to the New York Times.

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