ARI SHAPIRO, HOST:
The state of Texas has one of the most restrictive voter ID laws in the country. The law requires voters to bring specific government-issued photo IDs in order to be allowed to vote. According to the state's own research, more than 600,000 eligible voters lack one of the required IDs, especially poor black and Hispanic voters.
ROBERT SIEGEL, HOST:
As it's wound its way through the courts for the last four years, seven federal judges have concluded that the state's voter ID law is unlawfully discriminatory. But as NPR's Wade Goodwyn reports from Dallas, it remains the law in Texas nevertheless.
WADE GOODWYN, BYLINE: When Texas passed its voter ID law in 2011, it was written in such a way that the bill was practically an invitation to legal action. It's not so much the fact that Texas wanted to require a photo ID in order for registered voters to be allowed to vote; it was the kind of IDs that would and would not pass legal muster. For example, concealed handgun carry permits and military IDs are just fine to vote, but state university photo IDs and state employee IDs are not. Why not? Lead plaintiff's lawyer, Gerry Hebert, says the legislature was trying to stack the deck for the GOP.
GERRY HEBERT: Texas, when it enacted the law, picked and chose which IDs could be used. And each time they rejected an ID, they rejected an ID that was disproportionately held by minorities.
GOODWYN: Like other Southern states, Texas has a history of laws dating back to 1895 that eliminated or repressed minority voting - all-white primaries, literacy tests, secret ballots, poll taxes, voter purges. In Texas, it was legal to discriminate against black and Hispanic voters until the early 1970s. That's when the Justice Department and federal judges began stepping in onto the Voting Rights Act and putting a stop to it.
And that's precisely what happened with Texas' new voter ID law in 2012. A three-judge Federal District Court in Washington, D.C., unanimously rejected the law as discriminatory. Normally, that would have been the end of that, but the next year by a vote of 5 to 4, the U.S. Supreme Court struck down section five of the Voting Rights Act, which after 50 years required Texas and other states to get pre-clearance for any changes to its voting practices. Plaintiff's lawyer Hebert says Texas' Republican leadership was ecstatic.
HEBERT: And Texas' attorney general at that time, Greg Abbott, announced that the law would go into effect immediately within hours of the Supreme Court's decision.
GOODWYN: And Texas' voter ID law has remained in effect ever since. In 2013, the law was challenged under a different section of the Voting Rights Act. U.S. District Judge Nelva Ramos in Corpus Christi again struck down the law, ruling the Texas legislature actually intended to disenfranchise minority voters.
The court holds that the law creates an unconstitutional burden on the right to vote, Ramos wrote. It has an impermissible discriminatory effect against Hispanics and African-Americans and was imposed with an unconstitutional discriminatory purpose.
Then the case went to the 5th Circuit Court of Appeals.
KEN PAXTON: We're just hopeful that this common-sense legislation will stand.
GOODWYN: Texas Attorney General Ken Paxton has taken up the fight from former Texas Attorney General Greg Abbott, who's now Texas' governor. But, again, the state lost. In 2015, a 5th Circuit Court panel agreed with Judge Ramos that the law was discriminatory.
What's unclear is why in the face of multiple adverse rulings, the courts allowed Texas to continue to enforce its voter ID law. The plaintiffs have now filed a motion with the U.S. Supreme Court to end the 5th Circuit Court stay. But Texas Attorney General Ken Paxton says it's all been fine because, in fact, there have been no major problems.
PAXTON: I'm not aware of any problems in Texas in any of these elections related to use of photo ID. It's worked perfectly well from the time we started until our last election which was March 1, so there's no desire here to limit voting. We don't want fraud in Texas.
GOODWYN: After a six-month lull, the 5th Circuit Court of Appeals agreed to take up the Texas case en banc, in other words, before all 15 judges. This may be an ominous development for the plaintiffs. The 5th Circuit Court has a reputation as one of the most conservative in the country with a long record of sanctioning laws passed by the Republican-dominated Texas legislature.
In fact, the court's decision in 2014 to stay the district court's ruling was a big boost to the state. It's given Texas the opportunity to continue to build a record with the law in place. The fact that there have not been thousands of voters turned away at the polls could be a compelling argument to the court.
Joseph Fishkin is a law professor for the University of Texas who's been following the case.
JOSEPH FISHKIN: It's certainly fortuitous for the state if the state thinks that it can build a record over several elections that says this law has been in effect without a lot of problems.
GOODWYN: But the plaintiffs argue the real issue is not how few voters are turned away at the polls, but how many don't bother going in the first place. Texas has long ranked at the bottom for voter turnout. Of the states that have held primaries so far, only Louisiana has turned out a lower percentage of its eligible voters.
Prairie View University student Monty Clark (ph) is one example of a young African-American who says she's been disenfranchised in Texas. Clark is a graduating senior at the historically black university who voted using her student ID in 2010 as a freshman. Two years later, she wasn't allowed to vote.
MONTY CLARK: I was actually here on my campus because my campus opened up their own voting place on campus. And, you know, I watched many students get turned around from voting. One of my good friends, he had no idea that this law had taken effect.
GOODWYN: Clark puts herself through school, has no car and says she barely scrapes by.
CLARK: I worked too long to finally get to the point where I can exercise my right to vote. And now today, you know, I may not even be able to vote with this upcoming election. And I just don't think it's fair.
GOODWYN: Clark joined the NAACP Legal Defense Fund's lawsuit against the state of Texas. The 5th Circuit Court of Appeals has not yet set a date to hear the voter ID case. Wade Goodwyn, NPR News, Dallas.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.