The Story of Texas SB 14: A Legal Lazarus
December 3, 2018
By: Shawn Syed
“Lazarus” is a name associated with a simple story. A subject dies. The Subject is then restored and is suddenly alive. Lazarus has been explored in songs, movies, and other forms of narrative. The 82nd Texas Legislature’s Senate Bill 14 (SB 14) is the legal world’s example of Lazarus.
Our Lazarus, SB 14, allowed the following to be accepted as voter identification: Texas Driver License, Texas Election Identification Certificate, Texas Personal Identification Card, Texas Concealed Handgun License, United States Military Identification Card, United States Citizenship Certificate, or United States Passport. The most notable form of identification that was not included was a student ID. The first four could only be issued by the Texas Department of Public Safety. The Texas Department of Public Safety has been in the news for other reasons recently. The Texas Department of Public Safety proposed closing 87 driver’s license offices as a solution to cut down wait times. In effect, this would hinder the ability of people trying to get certain forms of acceptable identification under SB 14.
SB 14 was dead before it could even see the light of day. Though enacted by the Texas Legislature on May 27, 2011, the bill faced an uphill battle. Texas, under the preclearance requirement of Section 5 of the Voting Rights Act, was denied the ability to put SB 14 to work.
This is only the beginning of our story.
SB 14 regained existence shortly after Shelby County v. Holder. Shelby County ruled that the formula for preclearance under the Voting Rights Act was unconstitutional. The Texas Legislature almost immediately brought SB 14 to life and into implementation.
SB 14 faced its first post-Shelby legal challenge a few months after its second birthday. In an initial case, Veasey v. Perry, the law was challenged as a poll tax, a violation of Section 2 of the Voting Rights Act as a purposeful abridgment of the right to vote that resulted in said abridgment, and an unconstitutional burden on the right to vote. The Southern District of Texas held for the Plaintiffs, stating that SB 14 resulted in a discriminatory impact to African-American and Hispanic voters and that the record showed SB 14 was crafted, at least in part, in order to harm minority voters. The Fifth Circuit affirmed this decision.
At this point, a total of seven federal judges were faced with determining the constitutionality of SB 14. SB 14 received approval from zero of these judges. After all of this, SB 14 was thought to remain six feet under.
SB 14’s favors shifted when it was in front of the Fifth Circuit en banc. The Court reversed the District Court’s decision that SB 14 was enacted with a discriminatory purpose. By this time, an interim remedy was needed before the 2016 general election. The parties agreed upon a remedy that allowed people without proper ID to file a declaration that explained why they were impeded from having the aforementioned identification. The seven possible impediments included lack of transportation, work schedule, and disability or illness.
By the start of the 85th Texas Legislature, lawmakers hoped to craft legislation that would comply with the Fifth Circuit’s decision. A new Presidential administration entered and the Department of Justice dropped the intentional discrimination claim against SB 14. In June 2017, SB 5 was passed by Texas. SB 5 was claimed to be a bill crafted with special attention given to the Fifth Circuit’s opinion on SB 14. Plaintiffs challenged SB 14 and SB 5 together, arguing that SB 5 simply continued the wrongs of SB 14.
Soon after, the District Court, on remand and given SB 5 to consider, concluded that SB 5 was just a continuation of SB 14. The Court struck down both SB 5 and SB 14. The Court also ordered a hearing to consider a rare “bail-in” under Section 3 of the Voting Rights Act. In order to be considered for a bail-in, a court must first find that a jurisdiction intentionally discriminated against minority voters. If a court bails-in a jurisdiction, that jurisdiction would be under Section 5 preclearance requirements for as long as the court order stays. The day after the District Court’s ruling on SB 5, Texas appealed again to the Fifth Circuit while also asking for a stay on the District Court’s order. This order was granted.
On April 27, 2018 a Fifth Circuit panel concluded that SB 5 was an effective remedy for SB 14.
SB 14, though now SB 5, has been dead and alive numerous times. It has completed the full Lazarus cycle. Once again alive, it is now considered one of the strictest voter ID laws in the country. We can only sit and wait to see how our Lazarus rears its head at the 2018 midterm elections.