You can’t eat a birth certificate. That revelation became the catchphrase of the voting rights litigation that our team at Dechert tried to victory September 2014 and successfully defended on appeal August 2015.
When I became involved in the litigation, I knew next to nothing about the Voting Rights Act of 1965 (other than it was enacted to ensure equal access to the polls), much less how my home state of Texas was legislating voting rights.
What I learned –largely from first-hand accounts of people denied access to the polls on voting day – was that Texas had enacted the most restrictive voter ID law in the country. Senate Bill 14, enacted in 2011, required all voters to show up to the polls with one of seven forms of government-issued photographic identification. Prior to SB 14, the only document that voters in Texas needed was their voter registration certificate. The ostensible purpose of the legislation was to combat in-person voter fraud in Texas. And while requiring a photo ID sounds like a decent way to accomplish that goal in theory, in practice it meant that a large percentage of voting age Texans could not vote without incurring significant expense to obtain the “right” form of photo ID.
In Texas, to obtain government-issued photo ID, you almost always have to present a valid birth certificate. Those cost about $22 on average, which is a significant expense on its own. If you also factor in missing work and traveling large distances to DPS offices, the cost becomes even more onerous. And in Texas, the statistics demonstrate that this cost disproportionately burdens African Americans and Hispanics.
To alleviate this burden, in 2013, the Department of Justice initiated a lawsuit against the State of Texas seeking to invalidate SB 14 under section 2 of the Voting Rights Act. Dechert intervened in the lawsuit on behalf of the Texas NAACP and the Mexican American Legislative Caucus.
The case went to trial in federal district court in the Southern District of Texas in September 2014. In preparing for trial, I heard stories from dozens of witnesses about the difficulties they encountered in obtaining photo ID to vote.
One of those witnesses, Sammie Bates, became the first witness to testify at trial. Ms. Bates is a 75 year-old African American grandmother who remembers watching her own grandmother counting the family’s hard-earned money to determine if they had enough to pay poll taxes. Today, Ms. Bates believes that casting a ballot in person on Election Day is an important and hard-fought right. But when she moved to Texas and attempted to vote in the presidential election in 2012, she was told that her valid Illinois driver’s license was not sufficient to identify her. Nor was her voter registration card, or anything else she had with her that day. Ms. Bates eventually cast a provisional ballot, but nobody told her that the ballot would not count if she did not obtain and present a valid Texas-issued photo ID within six days of the election. Her vote did not count that year. Ms. Bates then attempted to obtain a Texas photo ID for the next election. But because she was born out-of-state, she was told it would cost $42 to obtain her birth certificate. She didn’t have the money.
At trial, she explained that she had to make a choice between voting and paying other necessary expenses: “We couldn’t eat the birth certificate, and we couldn’t pay rent with the birth certificate.” So the birth certificate had to wait, and several other opportunities to vote in Texas elections passed without Ms. Bates’ participation.
This is just one of the many stories we heard from witnesses at trial, all of whom shared similar experiences. I came away from trial with the conviction that the law imposed unnecessary burdens on the right to vote.
We ultimately won the two-week bench trial, but that was largely expected. In a 147-page opinion, Judge Nelda Gonzales Ramos held that Senate Bill 14 was enacted with a racially discriminatory purpose, had a racially discriminatory effect, was an unconstitutional poll tax, and unconstitutionally burdened the right to vote. While we were thrilled with her decision, we knew the real battle would be fought in the Fifth Circuit Court of Appeals, a very conservative circuit by reputation. And despite our win in the District Court, the Fifth Circuit stayed enforcement of Judge Ramos’ decision, explaining that we were too close to an upcoming state election to change the procedures for voting. That stay remains in place today.
On August 5, 2015, the Fifth Circuit handed down its opinion. The Fifth Circuit panel agreed that the law has a discriminatory effect and remanded the case to the District Court for consideration of the proper remedy. Among the remedies suggested by the panel were accepting a voter registration card as a sufficient form of identification at the polls and permitting voters to show other forms of photo ID (like student ID cards and expired driver’s license). As to our discriminatory purpose claim, the Fifth Circuit panel held that the District Court had applied an erroneous legal standard to the question of discriminatory purpose but refused to substitute its own judgment for that of Judge Ramos.
As a result, the panel instructed Judge Ramos to reconsider the discriminatory purpose claim on remand. Thus, the panel left the discriminatory purpose claim in play. Before we could celebrate the victory, the State sought en banc review of the panel’s decision, which the Fifth Circuit granted. En banc briefing is set to be complete on May 9, 2016.
As one final twist in the Texas voter ID saga, on April 29, 2016, the Supreme Court of the United States issued an order setting a deadline for resolution of the case by the Fifth Circuit. Cognizant of the upcoming Presidential election, the Supreme Court instructed that, “[i]f, 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.”
In other words, the Fifth Circuit needs to make a decision, and make one quickly. Hopefully that means that, by Election Day in November, we will have a favorable ruling from the en banc panel. And nobody in Texas will have to choose between voting and feeding their families.