The Justice Department on Monday dropped its long-standing position that Texas intended to discriminate when it passed a strict voter-ID law, a sharp turn from the Obama administration’s push to challenge restrictive state voting laws.
The Texas case is the first window into how the Trump administration and Attorney General Jeff Sessions will approach the highly charged issue of voting rights. President Donald Trump has alleged without evidence that massive voter fraud led to his loss of the popular vote in November to Democrat Hillary Clinton. Voter advocates fear that these claims will be used to justify more restrictions on voters.
The new position on the Texas law, one of the strictest in the country, came in advance of a court hearing scheduled before a federal judge in Corpus Christi on Tuesday. In its motion filed Monday, the department sought to “dismiss the discriminatory purpose claim,” or, in other words, abandon its argument that the Texas law is intentionally racially discriminatory.
The law, passed in 2011, requires that voters present certain forms of identification, such as a driver’s license, a military ID, a passport or a weapons permit, in order to cast their ballots. Compared with voter rules passed elsewhere in the country, the Texas law is particularly stringent since it does not accept some IDs, such as those issued by universities, that other states consider valid.
Critics said these restrictions target voters, such as young people and minorities, who are more likely to vote Democratic. Several courts have found the Texas law to be unconstitutional.
Justice Department lawyers said in their filing Monday that rather than continuing to litigate the question of the Texas legislature’s intention in passing the law, the federal government wants to give state lawmakers an opportunity to adjust the rule. The Texas legislature is now considering an amendment to its voter-ID law.
While a number of states, such as North Carolina, have passed new requirements for voter IDs in recent years, Texas in particular has attracted attention because of the large number of people affected. A federal court in Texas found that 608,470 registered voters did not have the IDs the state required for voting.
The practical effect of the Justice Department’s decision is that civil rights groups will continue, without the backing of the federal government, to contest the purpose of the Texas law.
“DOJ’s reversal in position defies rationality after years of vigorously defending the case,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, who vowed to continue challenging the Texas law.
The Justice Department, which had wanted more time, had to take a position because of the deadline for the Tuesday hearing on whether the law was intended to be racially discriminatory. The department did not withdraw altogether from the Texas lawsuit. It remains to be seen whether the government will change its position on whether the effect of the law is discriminatory – a separate claim in the lawsuit.
But election law expert Rick Hasen said that the department’s action Monday indicates a “pullback of the DOJ . . . and a sign of possible things to come.”
“This development is notable,” Hasen said in his Election Law Blog. “It means DOJ is pulling back from aggressive defense of voting rights. And I predict, in cases like Texas and North Carolina, eventually DOJ will be on the other side of this issue, supporting the right of states to make it harder to register and vote.”
Government lawyers who challenged the Texas law under President Barack Obama said the Trump administration is failing to protect the right to vote.
“While elections are inherently political, protecting the franchise should never be,” Vanita Gupta, who served as head of the Justice Department’s civil rights division under Obama, said in a statement. “The Justice Department’s reversal of its longstanding position, advocated by career lawyers, in a case they’ve been litigating since 2011, troublingly advocates letting Texas off the hook before state officials fix a voter ID law that courts have deemed discriminatory.”
On Jan. 20, the day of Trump’s inauguration, the department asked for and was granted a one-month delay of the hearing. Government lawyers asked for another delay until at least June, but last week the judge denied that request.
The Justice Department, under then-Attorney General Eric Holder, sued Texas in 2011. Last summer, the full U.S. Court of Appeals for the 5th Circuit, which is one of the most conservative in the country, ruled that the Texas law, which requires certain IDs to vote, discriminated against minority voters.
The 5th Circuit ordered a lower court to come up with a fix in time for the November elections, to allow voters who lacked the specific ID required by the law to cast votes. The federal court also asked the lower court to determine whether the law was “intentionally” discriminatory.
The Justice Department’s move undercuts perhaps the most critical argument by advocates in the Texas case. If the court ruled that the legislature passed the law with the intention to discriminate, judges could throw out the entire law, and Texas could be put under federal supervision regarding any voting laws for up to 10 years, Hasen said.
Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice, said that her group is “extremely disappointed that DOJ is abandoning this claim after spending years building such a strong case that the Texas law was intended to discriminate against minority voters.”
“Fortunately, the other voter advocates will continue to press the case in court and will make clear that this kind of discrimination is unacceptable in our democracy,” said Weiser, whose organization co-represents the Mexican American Legislative Caucus and the Texas NAACP.