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Pyrrhic Victory at the 5th Circuit

Squeaking in under the soft July 20, 2016 deadline imposed by the Supreme Court, the 5th Circuit ruled en banc that the Texas photo I.D. law has a racially discriminatory effect. Not surprisingly, the conservative appeals court nevertheless takes a lot of wind out of the plaintiff’s sails, by finding that the evidence used by the district court to find discriminatory intent was “infirm,” and by refusing to strike down the law. Rick Hasen has more on the opinion. The text of the decision (which comes in at a punishing 203 pages) is here: http://www.ca5.uscourts.gov/opinions/pub/14/14-41127-CV3.pdf

I confess that I expected worse, but not by much. By keeping the law in place and remanding to the trial court to craft some sort of remedial fix, the appeals court preserves a truly terrible law. But more importantly, the appeals court decision pours cold water on efforts to bring Texas into “opt-in” preclearance to remedy a violation of Section 2 of the Voting Rights Act.

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