By Noah Feldman
In time for the presidential election, an appeals court has determined that Texas’ voter identification law is discriminatory. Those without a government-issued photo ID will therefore have their votes counted on the basis of other evidence of residency. If Texas turns out to be in play in November, the result could have a small but meaningful effect in Hillary Clinton’s favor.
More important, the decision has great symbolic significance in an election in which Donald Trump has focused on illegal immigration. In 2008, the U.S. Supreme Court upheld a voter ID law in Indiana as a permissible way to avoid voter fraud.
A federal district court had previously found that the Texas law violated both the Voting Rights Act and the Constitution. The Fifth Circuit issued its carefully crafted opinion on July 20.
It first said that the district court had made some legal errors in determining that the Texas law was enacted with the intent to discriminate against minority voters. In particular, the appeals court chided the lower court for relying too much on Texas’ long history of voter discrimination and for giving too much weight to the testimony of the law’s opponents.
The appeals court sent the case back to the district court for a do-over on the question of intent, to take place after the election.
This part of the holding might for the moment assuage the feelings of some Texas Republicans, who can at least say that the appeals court didn’t find that they meant to block Latinos and blacks from voting.
But unlike the Equal Protection Clause of the Constitution – which, according to the Supreme Court, only prohibits intentional discrimination – the Voting Rights Act also prohibits laws that have a discriminatory effect. And the Fifth Circuit upheld the district court’s judgment that the voter ID law had a disparate, racially discriminatory impact on voters.
In the Indiana case, six justices voted to uphold Indiana’s voter ID law, which required the equivalent of a driver’s license to vote.
The Fifth Circuit reasoned that the Indiana case wasn’t brought under the Voting Rights Act, but under the Constitution. To win, the plaintiffs had to show discriminatory intent.
The Fifth Circuit told the district court to fashion a remedy in time for the election that would allow people without qualifying ID to go to the polls and have their votes counted. It remains to be seen whether the publicity surrounding the law will suppress minority voter turnout.
But the symbolism of the decision leaves no question: Every qualified voter should have the right to vote in November.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.