In 2011, the Texas Legislature passed SB14, which requires that voters present identification (ID). Prior to SB 14, a Texas voter could vote in person after presenting a registration certificate—a document mailed to him upon registration. Voters without the certificate could vote after signing an affidavit and presenting: e.g
., a current or expired driver’s license, a photo-identification, or a utility bill, bank statement, paycheck, government document showing the voter’s name and address, or mail sent the voter from a government agency.
SB 14 requires: (1) a Texas driver’s license or personal ID from the Department of Public Safety (DPS) that has not been expired for over 60 days; (2) a U.S. military ID with a photo that has not been expired for over 60 days; (3) a U.S. citizenship certificate with a photo; (4) a U.S. passport that has not been expired for over 60 days; (5) a DPS license to carry a concealed handgun that has not been expired for over 60 days; or (6) a DPS Election Identification Certificate (EIC) that has not been expired for over 60 days. An EIS requires: (A) one form of primary ID, or (B) two forms of secondary ID, or (C) one form of secondary ID and two pieces of supporting information. Thus, an EIC requires either a Texas driver’s license or personal identification card that has been expired for less than two years, or one of the following with two supporting documents: (1) birth certificate; (2) State Department document; (3) U.S. citizenship or naturalization papers without a photo; or (4) a court order indicating a change of name and/or gender.
Texas residents sued alleging SB14 violates the First and Fourteenth Amendments and Section 2 of the VRA, a suit that was consolidated with one filed by the United States, which alleged that SB14 had a discriminatory purpose. In 2014, a federal district court ruled for the plaintiffs on all claims. Later, a three-judge panel of the Fifth Circuit held that SB14 violates only Section 2 because of its discriminatory effect. The Fifth Circuit granted en banc review.
On April 22, 2016, MSLF filed a friend of the court brief in support of Texas urging the appeals court to rule that Texas legislation requiring the use of voter identification violated neither the Constitution nor the VRA. On May 9, 2016, the United States and the other plaintiffs filed their supplemental en banc briefs. Oral argument took place on May 23, 2016.
On July 20, 2016, the en banc Fifth Circuit held that Senate Bill 14 was not passed for a discriminatory purpose but did have a discriminatory effect and, thus, violated Section 2 of the VRA. The Fifth Circuit remanded the case to the district court to ensure that any remedy enacted ameliorates SB 14’s discriminatory effect, while respecting the Legislature’s stated objective of safeguarding the integrity of elections by requiring more secure forms of voter identification. On September 23, 2016, Governor Abbot filed a petition for writ of certiorari with the Supreme Court of the United States. On January 23, 2017, the Supreme Court of the United States denied the petition.
On April 3, 2017, the Texas federal district court issued an order expressing its intent to “await the end of the current Texas legislative session to address remedies” regarding the discriminatory effect of SB 14. On April 10, 2017, the Texas federal district court issued an order again finding that, even absent the evidence considered “infirm” by the Fifth Circuit, SB 14 was passed with a discriminatory purpose.
On June 1, 2017, the Texas legislature passed SB 5, attempting to negate SB 14’s discriminatory purpose by expanding the types of photo IDs to include passport cards and extending the amount of time a qualifying ID may be expired. The state officials subsequently filed a motion for reconsideration of the federal district court’s April 10 order. On August 23, 2017, the federal district court denied the motion for reconsideration and awarded plaintiffs declaratory and injunctive relief for Section 2 violations, finding that SB 5 does not remedy SB 14’s Section 2 violations because SB 5 itself does not conform with Section 2. On August 23, 2017, the state officials filed a notice of appeal. Between September and December, the parties briefed the appeal on an expedited basis. On December 5, 2017, the Fifth Circuit heard oral argument.