Now You See It, Now You Don’t: Sessions DOJ Abandons Discriminatory Intent Claim in Texas Voter ID Case

Anna Bodi
Feb 28, 2017
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Texas has the nation’s strictest photo voter ID law in the nation, SB 14, which was found by three federal courts to disenfranchise more than half a million voters.

The Campaign Legal Center has litigated the case challenging that law for several years now, on behalf of Texas voters and the League of United Latin American Citizens. The Department of Justice, throughout this process, previously sided with the plaintiffs’ claims that the law has a discriminatory purpose and discriminatory effects.

But that’s no longer the case. The DOJ notified CLC yesterday that after many years of vigorously challenging Texas’s voter ID law, it was dropping its claim that the law was enacted with the intent to discriminate.

The move comes less than a week after the DOJ, in a joint motion with the state of Texas, unsuccessfully pushed to delay consideration of SB 14’s discriminatory purpose, relying on the mere introduction of a new bill, SB 5, in the Texas State Legislature to amend the Texas voter ID bill.

The DOJ’s sudden reversal in position invites the question: What has changed?

While the DOJ points to the introduction of SB 5 as a reason for last week’s attempted delay and this week’s withdrawal of its intent claim, none of the relevant facts at issue have changed. The only change is that Jeff Sessions, a known opponent of minority voting rights, is running the Justice Department.

The mere introduction of a new voter ID bill is a flimsy and unjustified excuse for the DOJ’s dismissal of its discriminatory purpose claim, a claim that it fully briefed and supported just a few months ago. The DOJ argues that the district court should allow Texas lawmakers to modify the law (via SB 5) before considering the discriminatory purpose claim. However, this puts the cart before the horse. SB 5, introduced in 2017, is irrelevant to the issue of whether SB 14 was enacted in 2011 with a discriminatory purpose. SB 5, if enacted later this year might provide a (partial) remedy for a violation. But it is the district court’s role to decide the merits of the plaintiffs’ (and until yesterday the DOJ’s) discriminatory purpose claim before it can decide that question. This is because the trial court needs to decide the remaining intent claim before it can decide whether SB 5 or another bill completely remedies Texas’s discriminatory conduct.

For the reasons above, the district court has repeatedly rejected the DOJ’s reasoning. Six months ago, Texas made the same argument to the district court in asking for a delay in the proceedings regarding discriminatory intent. That request for a delay in evaluating intent was rejected by the district court. At that time, the DOJ opposed Texas’ delay request and stated that it was “in the interest of justice” to resolve the discriminatory purpose claim as soon as possible. The court rejected Texas’s argument, stating that it was tasked with examining the purpose of SB 14, “which can be determined only by evidence of events at or before the time of enactment.” Clearly, the introduction of a new bill in 2017 has no bearing on whether the current law, enacted in 2011, was passed with a discriminatory purpose. For the same reasons, the court denied Texas’s repeated attempt, now joined by the DOJ last week, to delay the proceedings.

In its latest move seeking to abandon its intent claim, the Sessions DOJ repeated the same previously rejected argument.” However, today’s proceedings before the court in Corpus Christi, Tx. examined only the record as it relates to the purpose behind SB 14 when it was enacted in 2011 and as viewed by the evidence from the 2014 trial, which cannot be impacted by any new legislative developments.

The excuses for the DOJ’s sudden reversal are smoke and mirrors. On the issue of intent, it is an unfortunate retreat by the DOJ in voter protection. Using the same argument that it unsuccessfully employed in an effort to delay today’s court proceedings, the DOJ is now abandoning the position it has held steadfastly and supported with evidence since at least 2013.

Fortunately, due to the work of organizations such as CLC and its private plaintiff partners, the discriminatory purpose claims will continue even without the DOJ.  However, the DOJ cannot reasonably claim that dropping their intentional discrimination claim is not backing away from justice, because it is. And there is no excuse for our nation’s law enforcement agency not to pursue justice and live up to its name.

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