Editor's note: This story has been updated with comment from Texas Attorney General Ken Paxton and Texas Democratic Party Chairman Gilberto Hinojosa.
NEW ORLEANS – A federal appellate judge on Tuesday questioned why the Texas Legislature had not addressed concerns that its four-year-old voter ID law discriminated against minority voters.
U.S. 5th Circuit Court of Appeals Judge Catharina Haynes stopped short of rebuking state lawmakers while listening to attorneys spar over what are widely considered the nation’s strictest rules on the identification that voters must present at the polls. But she sounded perplexed that lawmakers had not made the law more palatable to critics as it winded through the federal court system.
“They’re meeting right now. They had that opportunity. What are they doing?” Haynes asked from a perch on a three-judge panel of the appeals court.
"Why wouldn't the legislative system fix the [Texas] rules?" added Haynes, who was appointed to the court by then-President George W. Bush. "Why should we fix the [Texas] rules?"
The case centers on whether Texas intentionally discriminated against Hispanics and African-Americans when it passed the legislation – Senate Bill 14 – in 2011. U.S. District Judge Nelva Gonzales Ramos of Corpus Christi ruled in October that the Texas ID law “constitutes an unconstitutional poll tax.” State attorneys, who appealed the ruling to the 5th Circuit, deny the discrimination claims and argue that the law bolsters ballot security and prevents election fraud. It’s unclear when the 5th Circuit panel will rule.
The law requires most citizens (some, like people with disabilities, can be exempt) to show one of a handful of allowable photo identifications before their votes can be counted. Acceptable forms include a state driver's license or ID card that is not more than 60 days expired at the time of voting, a concealed handgun license, a U.S. passport, a military ID card or a U.S citizenship certificate with a photo. The acceptable list is shorter than any other state’s.
Experts say more than 600,000 Texans lack such identification, though not all of them have necessarily tried to vote. Those citizens can obtain “election identification certificates” free of charge, but must present a copy of their birth certificate. Searching for and obtaining copies of birth certificates can cost between $2 and $47.
Haynes, known for playing devil’s advocate on both sides of various issues, did the most talking – and grilling – on Tuesday while Texas Solicitor General Scott Keller and lawyers for the plaintiffs, including minority groups and the U.S. Department of Justice, made their cases.
The 5th Circuit is considered among the most conservative in the nation, but Democrats appointed her colleagues on the panel — Judge Nannette Brown, a federal district judge from the eastern district of Louisiana who did not ask any questions Tuesday, and Chief Judge Carl Stewart.
Attorneys for the plaintiffs said the evidence of Texas’ intent to disenfranchise would-be minority voters was sound, supporting Ramos' ruling, which relied on statements from lawmakers who were opponents of the ID measures and said that state lawmakers did not accommodate poor Texans. The law was passed during what Ramos called a “racially charged” legislative session that also saw debates about immigration and sanctuary cities.
“What Texas has done is more severe than any other state in the nation,” said Chad Dunn, one of the plaintiffs' attorneys.
Keller on Tuesday reiterated the state's claim that the law has not disenfranchised any voters, saying Ramos’ decision was plagued by “some clearly erroneous fact-finding.”
“There was been no showing of any voter not able to vote because of Senate Bill 14,” he said, pointing out that those who faced difficulties obtaining the right documents could still vote by mail.
Keller argued that the plaintiffs had found no smoking gun – a statement or email for instance – in which proponents of the law overtly described an intention to discriminate.
Haynes and Stewart sounded skeptical of that critique.
"It's unlikely that someone's going to get up and say overtly: 'Let's discriminate,' in a debate in the House or Senate,” Haynes said.
Stewart said "strong circumstantial evidence" is a typical standard in proving discrimination cases.
But the judges also questioned the plaintiffs’ partial reliance on testimony from lawmakers opposed to the law to prove the Legislature’s intention to discriminate.
"Using the evidence about what the opponents of the law thought proponents thought,” Haynes said, “just seems like the rankest speculation.”
In her ruling last October, Ramos said Texas' voter ID law “has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.”
Ramos said such discrimination was intentional, making the case stand out in the national debate over recently tightened identification requirements in many Republican-controlled states.
Gov. Rick Perry signed the law in 2011, kick-starting its convoluted journey through the federal court system.
The rules were on hold until 2013, when the U.S. Supreme Court struck down part of the Voting Rights Act, ruling that Texas and other states with a history of racial discrimination no longer automatically needed federal preclearance when changing election laws.
The district court’s ruling 2014 ruling came just one month before Election Day, and the U.S. Supreme Court allowed the state to enforce the law during the 2014 general election. Some Democrats blamed the law for Texas’ particularly low voter turnout.
Haynes asked several times whether her court should send the case back down so that a judge could consider any effects of the law on voting in 2014. (The law had applied for a few smaller elections, but experts said it was hard to glean much from that data.)
“Wouldn't this be a great exemplar? Were people having trouble? We wouldn't have to guess anymore," she said.
Dunn, speaking for the plaintiffs, answered that voters need closure sooner than later.
"There's always an election coming up, so at some point this needs to be finalized,” he said.
Following Tuesday's 5th Circuit arguments, Texas Attorney General Ken Paxton released a statement calling the voter ID challenge “baseless” and “motivated purely by political opposition.”
“Safeguarding the integrity of our elections process is essential to preserving our democracy, and the district court’s ruling should be reversed in full,” the Republican said.
Texas Democrats, meanwhile, applauded efforts to strike down the law and took shots at the Republicans supporting it.
“While we continue the fight to restore this sacred constitutional right to all Texans, Republican lawmakers continue to fight tooth and nail to keep minority, low-income, and elderly voters away from the ballot box,” Texas Democratic Party Chairman Gilberto Hinojosa said in a statement.
Correction: An earlier version of this story identified Judge Nannette Brown as a judge on the 5th Circuit Court of Appeals. She is a federal district judge from the eastern district of Louisiana