5th Circuit To Hear GOP Appeal In Case Challenging Texas Voter Suppression Law

The 5th U.S. Circuit Court of Appeals will hold oral argument Tuesday concerning state and national Republicans’ appeal of a decision striking down part of Texas’ 2021 omnibus voter suppression law, Senate Bill 1. (Adobe Stock)

The 5th U.S. Circuit Court of Appeals will hold oral argument Tuesday concerning state and national Republicans’ appeal of a decision striking down part of Texas’ 2021 omnibus voter suppression law, Senate Bill 1. 

The particular provisions at issue require election clerks to reject mail-in ballot applications and completed mail-in ballots if they don’t include a voter identification number — either a voter’s driver’s license number or the last four digits of a Social Security number — that matches the identification number used on an individual’s original voter registration application.

According to reporting from the Associated Press, the contested matching provisions of S.B. 1 contributed to the rejection of nearly 23,000 mail-in ballots in Texas’ 2022 primary election. Mail-in ballots cast by voters of color were thrown out at disproportionately high rates and a significant portion of rejected ballots were cast in Houston — home to the heavily Democratic and diverse Harris County.

In an August 2023 ruling, a federal district court judge invalidated the provisions, agreeing with arguments made by former President Joe Biden’s U.S. Department of Justice (DOJ) and private voting rights groups that the ID number matching provisions contravene the Civil Rights Act’s Materiality Provision. 

The Materiality Provision specifically protects against disenfranchisement on the basis of trivial errors unrelated to a voter’s eligibility — in this case, a discrepancy between an ID number on one’s mail-in ballot and voter registration file. 

However, in December 2023, the 5th Circuit reinstated the challenged portions of S.B. 1 after granting a request from Texas officials and the Republican National Committee (RNC) to stay the district court’s decision. In that stay order, a conservative 5th Circuit three-judge panel indicated that the GOP appellants “are likely to succeed on the merits.”

The DOJ and voting rights group’s successful challenge to S.B. 1’s ID matching requirements at the district court level came as part of a larger consolidated lawsuit consisting of multiple claims against various aspects of the sweeping election statute. 

Throughout the case, the then-Biden DOJ — alongside private plaintiffs — maintained that the ID number matching rules for those seeking to cast a mail-in ballot flout the Materiality Provision by disenfranchising voters on the basis of minor paperwork errors. In previous voting rights cases, Biden’s DOJ also supported the argument that private plaintiffs may sue to enforce the federal rights provision. 

But with President Donald Trump’s return to the White House, it is unlikely that his Justice Department will maintain this position going forward. Without a private right of action, enforcement of the statute will be left exclusively to the U.S. attorney general. 

Trump’s nominee for U.S. attorney general, Pam Bondi, and his pick for assistant attorney general for civil rights, Harmeet Dhillon, are both avowed election deniers with demonstrated track records of hostility towards voting rights. 

Moreover, Trump’s DOJ has already indicated that the Civil Rights Division would halt a majority of its functions more broadly by imposing a freeze on pursuing new cases, indictments or settlements. 

Nevertheless, the DOJ has not expressed any change in its position for the upcoming 5th Circuit oral argument, meaning an attorney from the Voting Section is expected to argue in accordance with the department’s prior stance. At a recent appellate court argument in a redistricting case over Georgia’s maps, the DOJ adhered to its initial stance defending Section 2 of the Voting Rights Act. 

At Tuesday’s oral argument — which will take place before an ultra-conservative panel of Reagan and Trump appointees — Texas GOP officials and the RNC will present a few lines of arguments in support of their request to reverse the district court’s decision. 

One of their assertions will center on the reasoning that the Materiality Provision only applies narrowly to voter registration rules, but not to other elements of the voting process like the mail-in voting regulations set forth in S.B. 1. 

State officials may also raise the argument cited in one for their legal filings that the Materiality Provision is not privately enforceable — despite the fact that the 5th Circuit ruled to the contrary in a December 2023 opinion originating from a voting-related case

Both the RNC and Texas officials have repeatedly defended the challenged S.B. 1 provisions as tools for preventing “fraud” and promoting “election integrity” — claims that Biden’s DOJ and private plaintiffs have contended are unsupported by evidence. 

A live stream of Tuesday’s oral argument, which will begin at around 3 p.m. EST, can be accessed here

Learn more about the case here.