DOJ Drops Objections to Texas Voter ID Law (Audio)

was withdrawing a key claim in that lawsuit. During his confirmation hearing, Sessions was questioned sharply over his past record of opposing voting rights measures. I deeply understand the history of civil rights in our country and the horrendous impact that relentless and systemic discrimination and the denial of voting rights has had on our African American brothers and sisters. A fellow Senator, Corey Booker of New Jersey, even testified

against Sessions. He will be expected to defend voting rights, but his record indicates the he won't. This is the second time in a week the Trump administration reversed course in the Justice department stance in a major civil rights case. Our guests are Rick hass In, a professor at the University of California, Irvine School of Law and founder of the Election Law Blog, and Richard Brafald, professor at Columbia

University Law School. Rick did this reversal by the Justice Department and withdrawal of the claim that Texas enacted this law with discriminatory intent surprise you. It didn't surprise me. I think that we know that both M. Jeff Sessions and Donald Trump have different views on voting rights and the potential for voter fraud than Barack Obama and Loretta Lynch did. This was actually just the first step. It was just the Department of Justice withdrawing from one little

piece of the case. Uh. And there's still more to come, and I expect that we're going to see more reversals, not only in this case, but in other cases like it going forward. Rich a fault. What's the the significance of the the discrimintory discriminatory intent part of this case? That there's still the discriminatory effect part of this case that the Justice Department is still involved in, Sure it

may go more towards remedies. One consequence of finding a discribinatory intent is that a court could throw the entire statute, the entire Texas law that I posed various new requirements in order to vote, as opposed to just knocking out the particular piece that was determined to have a discriminatory effect. If you see discriminatory intent, the entire statute is tainted.

The other possibility is there is a provision of the Voting Rights Act, as we all know, the so called UH the cover jurisdiction provision that required preclearance of voting law changes in certain states, which included Texas. That was knocked out effectively knocked out by the Supreme Court in but there's still a provision in the law that provides as a remedy if jurisdictions are found to have committed

serious voting writes violation. There's a provision in the law that allows what some people called the bail in placing that particular jurisdiction in a situation where it has it will have to see preclearance of a voting law changes for a period of time, subject to the approval of a court. So the real issues are remedy. UH, you

could not get more of a statute. And also whether it might have been possible to bail in Texas to require preclearance of Texas voting changes going forward, Rick, what effect does it have on the case that the Justice Department has pulled out of that provision? The other plaintiffs in the case are still going forward. Well, that's right, So it doesn't scuttle the claim. The judge is hearing the claim today and will issue a ruling which will probably be appealed. And so, uh, what does it matter

that DJ has done this? Well? It matters in a few ways. First, I think it's a symbolic thing that shows that the Department of Justice is going to be standing with those states that are making it hard to register and vote, rather than standing with the planeffs who have been suing in those states. Second, if d o J drops this one claim but remains in the case, I think that gives d o J a chance to try to influence things to help Texas, even though it's

still uh nominally on the other side. So, for example, one issue that the trial court is going to have to face later on is, assuming there's a discriminatory effect found and not a discriminatory intent, what should the remedy be, the permanent remedy be? How do you soften this law and keep it on the books, and you can imagine the Department of Justice offering support for what Texas would like to do, which is probably much less than what

plaintiffs want to do. And finally, I think that courts, especially if this makes to the Supreme Court, tend to listen to the position of the U. S Government and the Department of Justice. It can have influence and so it could actually affect how this case ultimately gets resolved. What is the position of the United States government takes on these very contentious kinds of issues, Lee Rick. The Texas legislature did introduce a new voter I D bill.

Does that solve any of the problems of the former bill? Well, this was one of the reasons that the Department of Justice first tried to delay the hearing that's being held today on discriminatory intent and also said it was pulling out of the whole discriminatory intent claim to give the

state a chance to fix the problems. Now, it's not clear how passing a new law would fix any problem with past discriminatory intent, but it could fix the problem with discriminatory effect, that is, if all the court ends up saying is that the law had a racially discriminatory impact on protect a minority voters. Then in terms of the remedy, the Fifth Circuit said, well, maybe you should listen to what the state thinks is the best way to remedy things. So it could have relevance going forward.

It's not clear if anything's actually going to happen in the Texas legislature. I think a lot is going to depend on what happens on this amature intent, But it's kind of a lot of different moving parts. There is supposed to be some deference to how the UH state legislature wants to fix these kinds of problems. Richard talked to us about why the plaintiffs were alleging there was a discriminatory UH intent in this case. Was there especially strong evidence that Texas was doing this for a racially

discriminatory purpose? Um? And how does that compare to you know, other states around the country where we have voter ID lawsuits. Well, one of the evidences that when the kinds of i D that the state would allow as as legitimate idea to be brought into the voting do you want to vote?

There was evidence that so the i D was UH, the kinds of evidence that white voters are more likely to have like hunting licenses would be counted I das, like university i d s, college i d s, which might have been more commonly use by minority voters, were not counted. So there's a number of incident aspects of the lawn terms of what what both the impact but aspects of it. This seemed to be that we're arguably designed to have an impact, and whenever discriminatory impact is

easier to prove the discriminatory intent. But they are related and if the if aspects of the law seemed like they were fine tune to treat a certain result, it will often be presumed that they were UH, and that I think was part of the argument the the intent

sort of helps back up the effect. The intent also brings to bear just the issues like the timing, the way in which the law was pushed through, why it was adopted when it was, the statements by some of the some of the supporters after the fact statements and to be fair, UH and other and other aspects surrounding the adoption. There's rarely, rarely pure smoking gun evidence of intent, but often some of the evidence that supports effect will also support intent. In terms of why it's important to

make it. It It does make it a stronger, a more dramatic case, and also I think it does it could potentially to a stronger remedy. A similar case was the one that was that was brought in North Carolina, and there you actually had the Fourth Circuit Court of Appeals, the court that sits civil court that is jurisdiction over North Carolina, actually saying that the way in which that state's law was designed, I think they used surgically precisely

think uh to focus on minority voters. And I think that the court here didn't use that language the district court, but there were some aspects that suggest a similarity. Rick, Let's look forward the Trump's administration's change in strategy that we see coming. Could that empower other conservative control states to follow Texas lead and tighten their voter I D laws? Could it lead to changes in voting rights decisions ahead? Well, I think that this is the first step towards that.

I think knowing that there will be a Department of Justice that's going to come in and sue will be um give some leeway to some of these states, but there's still be private plans who are going to sue. I think ultimately it's going to come down to how the courts treat these questions. And so this Texas case actually went up to the Supreme Court, and I think

it was maybe about a month ago. The Supreme Court declined to hear the case, and Chief Justice Roberts, in an unusual move, uh issued a statement saying, Uh, we're not hearing this now, but that's because this case is still in process and we might hear it later. And so I think ultimately it's going to be whether the lower courts and probably the Supreme Court gives the green light.

If what Texas and North Carolina did are found by the Supreme Court to be just fine, then I think we'll see lots of other states with Republican legislatures passing similar legislation. Richard, we only have about thirty seconds. But Rick wrote the other day that he thinks the Justice Department ultimately will end up on the other side of these cases. Do you agree with that. It's hard to know, but it's certainly a very plausible speculation. But Justice Partment

did not withdraw from the case. The just said it was withdrawing support from a particular claim they're still in the case, and I think, as Rick may have suggested earlier, when this case reaches since remedial phase, they may come in on the side of Texas in terms of saying what the Texas latures rich leature has done. If they do anything is adequate in that case, they would not only be not supporting the plaintiffs, but they would be coming adverse. So it's hard to tell right now, but

it wouldn't be a big surprise. Thank you both for being on Bloomberg Law. That's Professor Richard Brufault of Columbia University Law School and Professor Rick Hasson of the University of California Irvine School of Law.