For three years, the Justice Department and civil rights groups were united against Texas’ 2011 voter ID law, arguing that the law — thought to be the strictest in the nation — not only kept black and Latino people from voting, but was deliberately crafted by state lawmakers to do so.
But times have changed.
On Wednesday, the Department of Justice swapped sides in the litigation and filed a brief supporting Texas, arguing that an amended version of the state’s new voter ID law ”eradicates any discriminatory effect or intent” found in the old law.
“As amended by S.B. 5, Texas’s voter ID law both guarantees to Texas voters the opportunity to cast an in-person ballot and protects the integrity of Texas’s elections,” the Justice Department lawyers write in the brief, referring to the bill number of the new voter ID law.
Texas’ Republican-dominated legislature pushed that new law through late in the state’s legislative session, in the wake of several court decisions that fatally wounded the state’s old voter ID law, which allowed voters to use just seven forms of photo identification:
- Texas personal ID card
- Texas Election Identification Certificate
- Texas handgun license
- U.S. passport
- U.S. citizenship certificate
- U.S. military ID
Back in July, the U.S. Fifth Circuit Court of Appeals ruled that Texas’ old voter ID law had a discriminatory effect and kept black and Latino voters from being able to vote. Though that court relaxed the law’s restrictions in time for the 2016 election, it ruled that a lower court had to decide whether Texas lawmakers had intentionally sought to discriminate against minority voters, as the Justice Department and civil rights groups had argued.
Then, following the election of President Donald Trump and the ascension of Jeff Sessions as attorney general, the Justice Department backed off support for that claim in February. But the Justice Department’s lack of support didn’t matter — in April, a federal judge ruled that Texas lawmakers had sought to discriminate against minority voters anyway.
Now, that same judge is weighing whether or not Texas’ new voter ID law solves the old one’s issues. Supporters argue that the new law gives voters who believe they cannot “reasonably” get the Texas-approved forms of photo ID options to still vote, while critics say that the new voter ID law is far too similar to the old one for comfort and will still burden minority voters.
In a brief filed Wednesday, the Texas Association of Hispanic County Judges and Commissioners urged the federal judge overseeing the case to reinstate Texas’ original voter registration procedures, which allowed voters to use a wider range of types of ID, and to not allow new voter ID laws from going into effect without prior court approval.
And the plaintiffs are not pleased that the Justice Department has apparently changed sides.
“We used to have team members on this case in the Department of Justice so to get a brief from the same Department of Justice — basically as an opposition brief — is discouraging,” said Danielle Lang, who works on voting rights and redistricting efforts for the Campaign Legal Center, which is representing some of the plaintiffs in the case. “The message of the Department of Justice’s actions in Texas are a loud and clear message to minority voters, and American voters generally, that the Department of Justice isn’t interested in protecting them any more.”
The Justice Department doesn’t quite see it that way.
“The Department of Justice is committed to free and fair elections for all Americans,” Justice Department spokesperson Devin O’Malley told VICE News in a statement. “The Texas Legislature responded to the federal court’s findings by amending the state’s voter ID law with Senate Bill 5, which fixes the issues that the court identified and mirrors the interim remedy put in place for the 2016 elections. Because Senate Bill 5 preserves the rights of all Texans to vote and protects the integrity of Texas’s elections, there is no basis for any further remedies in the case.”
This isn’t the first time Sessions’ Justice Department has swapped sides in a legal case; in fact, it’s not even the most high-profile example. Last month, the Justice Department filed an amicus brief in support of an oil company accused of violating federal labor law in a Supreme Court case against the National Labor Relations Board — but before Jeff Sessions took the reins, the Justice Department had backed the Board.