By: Benjamin Daily

In a new development in Texas’ Voter ID saga, U.S District Judge Nelva Gonzales Ramos found that Texas had misled voters and poll workers about the ID requirements to cast a ballot in the November 2016 election. The new order also requires Texas to obtain preclearance before publishing its educational material. The challenge comes after the Fifth Circuit struck down SB14, the Texas Voter ID law, in Veasey v. Abbott, the Texas Voter ID law last July.

After the Fifth Circuit handed down their decision en banc in Veasey, Texas entered into an agreement with the Justice Department to reform their voting procedures to conform with the Fifth Circuit decision. Among the reforms agreed to by the state was the agreement to develop a new training program for poll workers to inform them of the change in law and the production of educational materials targeted at informing voters of the new ID requirements.

The Justice Department filed suit after reviewing Texas’ educational materials. The Justice Department specifically took issue with the language Texas used to describe voters who could vote without a photo ID. In their agreement, Texas would allow voters who could not “reasonably obtain” ID to use a non-photo form of ID and sign an affidavit in order to cast a ballot. However, in their educational materials, Texas used the phrases “cannot obtain” and “have not obtained.” The Justice Department argued that the language used in the educational materials was harsher than the agreed to language and did not correctly represent the current rules. The Justice Department also argued that the discrepancy would most likely result in the suppression of minority voters.

The court’s order requires that Texas alter all materials concerning the voter ID requirements not already published. While the court does not require Texas to reprint all previously published material, the court did specifically require Texas to reprint posters which will be displayed in polling places and its press releases concerning the new rules. Also significant is the court’s requirement that Texas to obtain preclearance from the plaintiffs in this case. Preclearance for changes to voting laws was previously required in Texas by Section 5 of the Voting Rights Act, but this provision was overturned in the 2013 case Shelby County v. Holder.

This opinion also suggests the court took seriously the argument that improper education of voters could have a discriminatory effect on minority voters, who may either be confused about the new rules or who may erroneously believe that they do not possess the required ID to vote. Confusion over the rules governing the ID requirement has a substantial effect on voting rates. One study from the Hobby Center for Public Policy at the University of Houston and the Baker Institute at Rice University found that in the 2014 midterm elections, confusion over Texas’ voter ID law kept voters with proper ID from voting because they believed they did not have the required ID. The study estimated that 13% of non-voters did not cast ballots because they believed they lacked the proper ID even though only 3% of that group actually lacked the proper ID. This is a significant number of voters as the 2014 voter participation rate in Texas was 28.3 percent, the lowest in the country. While confusion in the ID law probably did not change the outcome of statewide races in 2014, confusion over the law could have affected the outcome of local and county-level races.

The State of Texas has appealed the Fifth Circuit decision in Veasey v. Abbott. However, even if the Supreme Court agrees to review the decision, the appeal will be held after the November election.

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