What Does Discrimination Look Like to Fifth Circuit Judge Edith Jones?

Before any of the attorneys even uttered a word, Judge Edith Jones already sounded irritated.

She called the case before her and the two other Fifth Circuit judges “twice-chewed food.” She even seemed to caution the lawyers: “Given that, maybe you can stimulate us.”

The occasion was a hearing last week on Texas’ strict voter ID rules, which the state is pushing to implement despite multiple rulings that lawmakers first passed them in 2011 with discriminatory intent. Jones sounded unenthused that the case’s circuitous route through the courts had brought the issue back to her bench.

On appeal last year, the majority of Fifth Circuit judges agreed that Texas’ voter ID rules were discriminatory in effect but basically punted on the issue of legislative intent and sent the case back to the trial court. Jones, a University of Texas School of Law graduate and Reagan appointee with a reputation for being one of the most conservative judges on the country’s infamously conservative federal appeals court, responded with a biting dissent that scolded her Fifth Circuit colleagues for even keeping the issue of racist intent alive without smoking-gun evidence. She compared anyone who buys the argument that Texas lawmakers intentionally passed a racist law to “Area 51 alien enthusiasts.”

Then the case circled back to the Corpus Christi trial court judge, who earlier this year again ruled that Texas lawmakers passed a deliberately racist bill. Even a legislative overhaul of the law this summer didn’t change the judge’s mind.

If it survives appeals, the trial court ruling could put Texas back under federal oversight for any future changes to state voting laws. Among other things, the ruling says lawmakers were aware of the bill’s disproportionate effect on minorities and passed it anyway, even as they rejected every attempt to blunt the law’s disparate racial impact.

Jones, however, insists the evidence of deliberate discrimination is too circumstantial to support so serious an allegation. In court last week, she continued to set a high bar for showing that laws were drafted with racist intent. By Jones’ nearly impossible standard, you’d have to catch lawmakers admitting to being racist before they did discriminatory things.

For instance, Jones argued that if Texas lawmakers’ original intent was to discriminate against minority voters, wouldn’t that have been explicit somewhere in the legislative record? “The district court had access to thousands of pages of internal legislative decision-making memoranda and comments and emails and so on,” Jones said. “There is nothing that says, ‘We are trying to advantage white voters over all other voters.’ Isn’t that proof there is no discriminatory intent?”

At one point, as Jones talked over a plaintiff’s lawyer mid-argument, she muttered, “You have nothing.”

That Jones would be sensitive to allegations of racism against public officials shouldn’t be surprising. In 2013, civil rights groups alleged that Jones’ comments during a speech on the death penalty at the University of Pennsylvania School of Law were so racially charged they rose to the level of judicial misconduct. The speech wasn’t recorded and Jones denied the allegations, but the complaint still led to an incredibly rare ethics inquiry that ultimately cleared Jones of misconduct. The complaint characterized her comments this way:

Certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities; Mexican Nationals would prefer to be on death row in the United States rather than serving prison terms in Mexico; Defendants’ claims of racism, innocence, arbitrariness, and violations of international law and treaties are really nothing more than “red herrings” used by opponents of capital punishment; Claims of “mental retardation” by capital defendants are also red herrings, and the fact such persons were convicted of a capital crime is in itself sufficient to prove they are not in fact “mentally retarded”; and the imposition of a death sentence provides a positive service to capital-case defendants because the defendants are likely to make peace with God only in the moment before their imminent execution. 

Jones was no stranger to controversy before the dust-up over the death penalty speech. In 2006, former Texas Observer editor Nate Blakeslee called her one of the “worst judges in Texas” for her callous treatment of criminal appeals involving everything from lawyers who slept through trial to intellectually disabled death row inmates. Jones has even made headlines for telling colleagues to shut up at the bench.

In last week’s hearing, Jones’ line of questioning seemed to buttress arguments by lawyers for the state of Texas and the Trump administration, who argue that the Legislature’s passage of a revamped voter ID measure this summer renders moot any pending legal challenge to the law in Texas.

Janai Nelson with the NAACP Legal Defense and Education Fund told the court that the new law largely mirrors the old one and establishes a “two-tiered” voting system that still disproportionately harms minorities. Sure, the law adds an affidavit-signing process for voters to cite one of several “reasonable impediments” to obtaining a photo ID under penalty of perjury, but it still didn’t expand acceptable forms of ID to include documents that black and Hispanic voters are more likely to already have.

“Black and Latino voters are literally required to vote in seperate lines if they do not possess one of this narrow set of voter IDs, and therefore have to vote in a separate line with separate documents,” Nelson told the court.

“There’s one in the preferred class, and there’s one for back-of-the-bus,” Chad Dunn, another lawyer for the plaintiffs, told the judges. Jones paused for a moment before responding, “Well, maybe somebody needs some empirical study about the two lines.”