As the 2017 Texas legislative session winds down, the way Texans will vote remains in flux. There's a new voter identification law headed to Gov. Greg Abbott's desk, but it's unclear whether it will pass muster in federal court.
A bigger voting rights issue, which threatens the state's entire congressional map, remains unaddressed, also with a pending court case. In that one, the state faces charges of illegally diluting the votes of the state's black and Latino populations.
On Sunday afternoon, the Texas House of Representatives finally signed off on Senate Bill 5, the seemingly dead revision of the state's 2011 voter ID bill that Abbott revived as a priority last week. The bill is mostly the same as the 2011 measure and requires that all Texans hoping to vote present a state driver's license or ID card, a concealed handgun license, a U.S. passport, a military ID card, a U.S. citizenship certificate or an election identification certificate. However, it also adopts similar remedies to those put in place by U.S. District Judge Nelva Gonzales Ramos for the 2016 general election after she ruled that the 2011 measure discriminated against minority voters.
Last fall, those who voted without IDs signed affidavits attesting to their inability to obtain identification under the penalty of perjury. SB 5 will allow voters without approved photo identification to do something similar moving forward. If a voter can provide a utility bill or mail received from the government with his or her name and address on it, he or she will be allowed to sign an affidavit attesting to the reason for his or her inability to get ID.
The state hopes that the new law, which Abbott is expected to sign in the next couple of weeks, will persuade Ramos not to place Texas under "preclearance status" when it returns to court next month to fight a lawsuit against the 2011 law. States placed in preclearance, established by the Voting Rights Act of 1964, are required to seek federal approval for any changes made to voting laws.
Despite the adoption of the federal judge's instructions, Democrats in both chambers of the legislature argued that Abbott's and Texas Republicans' push for SB 5 during the last days of the session was a desperate attempt to avoid future federal oversight.
"SB 5 might seem like reasonable legislation on its face, an effort to protect the security of the electoral process without placing an undue burden on access to the ballot box. That is not the case," state Rep. Eddie Rodriguez said. "Gov. Abbott is alarmed because the chickens are coming home to roost. The intentionally discriminatory voter ID law and redistricting maps he championed as attorney general have been ruled against by federal courts numerous times, raising the specter of a reinstated preclearance requirement."
While there is a chance that SB 5 will save the state from judiciary ire when it comes to voter ID, Texas Republicans don't seem inclined to take similar steps to fix the state's redistricting problem. In decisions this spring, two federal panels of three judges each ruled that Texas' congressional maps illegally discriminate against minority voters.
In the Texas House case, U.S. District judges Orlando Garcia and Xavier Rodriguez ruled that the state "turned the Voting Rights Act on its head" when it used race as a factor in configuring House districts.
“The impact of the plan was certainly to reduce minority voting opportunity statewide, resulting in even less proportional representation for minority voters,” U.S. District judges Orlando Garcia and Xavier Rodriguez said in their opinion. "Instead of using race to provide equal electoral opportunity, they intentionally used it to undermine Latino voting opportunity."
Last week, presented with a similar set of facts from a North Carolina case, the U.S. Supreme Court rejected two gerrymandered congressional districts in the Tar Heel state, ramping up the pressure on Abbott to call a special session to redraw Texas' electoral maps.
"My thought is if the legislature doesn’t [redraw the map], then the court is going to drop the map, which I think is way outside their constitutional purview,” Rep. Randy Weber, a Republican from Friendswood, told the Texas Tribune .
Abbott said Monday that he's considering a special session but not one to address the state's district maps. Instead, Abbott said, he'll decide later this week whether Texas taxpayers should pay for their legislators to continue working on the state's bathroom bill, a priority for the governor and Lt. Gov. Dan Patrick.
Texas Attorney General Ken Paxton confirmed that the state will do nothing about its potentially illegal districts. In a response to a question from Garcia last week, he said that the state "does not intend to undertake redistricting in a special session. ... Any further attempt to reconfigure the state’s electoral districts will only result in new legal challenges."