NEW ORLEANS — With a U.S. Supreme Court deadline looming, judges on a federal appeals court here Tuesday questioned whether accommodations could be made to protect minority voters and save Texas’s strictest-in-the-
nation voter-ID law.
Among the 15 judges of the U.S. Court of Appeals for the 5th Circuit who heard oral arguments Tuesday morning, there did not seem to be much support for striking down the law or blocking its use in November’s presidential election.
But several questioned why Texas did not have more fallback provisions — as other states do — for voters who lack the kinds of identification that the state requires.
Three other courts have said the Texas law discriminates against African American, Hispanic and poor voters, who are less likely to have the specified ID documents.
Despite those decisions, the appeals court has left the law in place. It is now under pressure from the Supreme Court to decide by July whether Texas’s approach is a responsible way to combat potential voter fraud or an impermissible Republican effort to discourage minority turnout.
The appellate judges are considering a district court’s finding that 600,000 people, disproportionately minorities, lack the specific kind of identification required — a driver’s license, military ID, passport or weapons permit, among them — and that it would be difficult for many to secure it.
A three-judge panel of the 5th Circuit reviewing that decision put aside the district judge’s ruling that the law was enacted by the Texas legislature with a discriminatory purpose, which would have required striking down the law. But the panel did find the law had a discriminatory effect.
Texas Solicitor General Scott A. Keller told the court Tuesday that the panel’s finding was incorrect and that challengers have not been able to prove the law has reduced turnout or participation in any of the three statewide or five local elections in which the law has been used.
He said a Supreme Court decision in 2008 upholding an Indiana law recognized a state’s interest in requiring voter IDs to maintain a fair and honest voting system.
If the challengers are right that any voting requirement that has even a slightly disproportionate impact on minority voters is unlawful, he said, “all voting laws are in jeopardy.”
Keller found support among what is considered the most conservative appeals court in the nation. Ten of the 15 judges were nominated by Republican presidents. Led in questioning by Judge Edith H. Jones, several on the court wanted to know the challengers’ “limiting principle.”
“I’m just looking for a place to draw a line” between which state restrictions are acceptable and which are not, Judge Leslie H. Southwick said.
Attorneys for the law’s challengers said the Voting Rights Act requires courts to look closely at the context and consequences of the changes and whether they are “needlessly burdensome.”
Janai Nelson, representing the NAACP Legal Defense and Educational Fund, said the legislature’s purpose, in part, was to curb the increasing power of minority voters in the state. The legislature “couldn’t change those demographics,” Nelson said, so it worked “with surgical precision” to rule out the kinds of identification — government employment cards, for instance, or college IDs — that minorities were most likely to hold.
Several judges asked about remedies that Texas could provide without a strike-down of the law and whether the court would have to come up with them. Jones said courts usually allow legislatures the first crack at such a task. But Judge Catharina Haynes, who wrote the panel decision that said the law had a discriminatory effect, said a special session of the legislature was unlikely.
Among the remedies could be accepting other kinds of IDs besides those the law specifies or allowing people to vote after supplying an affidavit that they are registered and qualified.
Chief Judge Carl E. Stewart, who was also on the panel that found the law discriminatory, said that Indiana, Wisconsin, Virginia and other states that have enacted voter-ID laws provide “infinitely more options” and that Texas’s was the “strictest of all the law enacted.”
But Keller said Texas does provide exceptions and that even the individuals challenging the law are able to vote. He said experts for the challengers found that among registered voters, 96 percent of whites, 94 percent of Hispanics and 92 percent of African Americans had the necessary ID.
Chad Dunn, a lawyer representing some of the challengers, said courts have found that disenfranchising any voter is prohibited, “whether it is one or 1,000.”
The Supreme Court last month turned down a request to stay the Texas law but told the 5th Circuit to act quickly on it.
“The court recognizes the time constraints the parties confront in light of the scheduled elections in November, 2016,” it said in an order issued in late April. “If, on or before July 20, 2016, the Court of Appeals has neither issued an opinion on the merits of the case nor issued an order vacating or modifying the current stay order, an aggrieved party may seek interim relief from this court by filing an appropriate application.”
The Texas law, known as SB 14, is one of several that will face court tests between now and the general election. Seventeen states have more-restrictive voting laws than they did during the presidential election four years ago, and several are under court scrutiny.
A voter-ID law in North Carolina was recently upheld, and that case now heads to the U.S. Court of Appeals for the 4th Circuit in Richmond. Virginia’s less-restrictive law was upheld, as well. Wisconsin’s law is the subject of an ongoing trial in Madison, where a former Republican aide testified that his bosses were “giddy” over the possibility that the restrictive law would discourage voters who favor Democrats.
But the Texas law has a long legal past. It was passed in 2011 but blocked by a panel of judges in Washington who at the time were required to review any voting changes in states with a history of discrimination.
The Supreme Court, in Shelby County v. Holder in 2013, threw out Congress’s designation of which states required pre-
clearance of their laws. Within hours, Texas declared that its blocked law was now in effect.
Civil rights groups and the Obama administration then challenged the Texas law under Section 2 of the Voting Rights Act, which forbids changes that discriminate against minorities.
After a trial, U.S. District Judge Nelva Gonzales Ramos struck down the law in October 2014. But the 5th Circuit issued a stay, allowing the law to be used in the November 2014 election.
The Supreme Court agreed with that action, over the strong dissent of Justice Ruth Bader Ginsburg, who was joined by Justices Sonia Sotomayor and Elena Kagan.
“The greatest threat to public confidence in elections . . . is the prospect of enforcing a purposefully discriminatory law,” Ginsburg wrote.