A split federal appeals court said Alabama's voter ID requirement is not unconstitutional or racially discriminatory because "most Alabamians already possess photo ID and voters who do not have one can obtain one easily."

The majority opinion from the U.S. Court of Appeals for the 11th Circuit, written by Judge Elizabeth Branch with the concurrence of Senior Judge Ed Carnes, said that instances of alleged voter fraud in the 1990s justified the state's passage of a 2011 law despite assertions that it was racially motivated. 

"While we acknowledge plaintiffs' assertions that minority voters in Alabama possess photo IDs at a slightly lower rate than white Alabama voters," wrote Branch, "the small disparities in ID possession rates do not, standing alone, establish a 'pattern, unexplainable on grounds other than race.'"

The dissenting vote, penned by designated U.S. District Judge Darrin Gayles of the Southern District of Florida, pointed to the state's history of discrimination and multiple statements by Alabama lawmakers warning about Black and Hispanic voters as incontrovertible evidence that the law was intended to suppress minority voting. 

"In modern-day America, it is unusual to have such clear evidence that legislative leaders and sponsors of legislation are motivated by racial discrimination," wrote Gayles.

The law requires that all Alabama voters present a photo ID when casting in-person or absentee ballots.

The law was challenged by the Alabama NAACP and Greater Birmingham Ministries in 2015 in a complaint asserting that, if allowed to stand, it "was estimated to immediately disfranchise at least 280,000 registered voters" along with "hundreds of thousands more eligible and registered voters" in the years to come. 

It named the state of Alabama, then-Gov. Robert Bentley and Secretary of State John Merrill as defendants, and asserted claims that the law violated the Voting Rights Act and 14th and 15th Amendments of the U.S. Constitution.

In 2018, Judge L. Scott Coogler dismissed the case on summary judgment, writing that the plaintiffs failed to show the law discriminates on the basis of race.

Even though the evidence was undisputed that the law disproportionately impacted minority voters, Coogler wrote that "a person who does not have a photo ID today is not prevented from voting if he or she can easily get one, and it is so easy to get a photo ID in [Alabama], no one is prevented from voting." 

In upholding Coogler's ruling, Branch noted statements by Alabama lawmakers including state Sen. Larry Dixon, who sponsored several unsuccessful voter ID bills between 1995 and 2010, and who stated that "the fact you don't have to show an ID is very beneficial to the black power structure and the rest of the Democrats." 

Dixon left the Legislature in 2010 but a colleague, who helped pass the 2011 legislation, was recorded referring to Black citizens as "aborigines." 

Branch also noted that the legislation passed on a largely party-line vote with no Black lawmakers supporting it. 

Nonetheless, she wrote, the case is similar to a voter ID law upheld by the U.S. Supreme Court in 2008's Crawford v. Marion County Election Board.

While Crawford did not raise claims of racial discrimination, "the burden analysis is similar," Branch wrote. "Alabama provides free photo voter ID cards to any Alabamian who wants one. In fact, Alabama makes it even easier to obtain a photo ID than Indiana did: Alabamians can utilize the mobile unit option to obtain a photo ID, virtually eliminating the need to take a 'trip to the BMV' or registrars' office."

"It is undisputed that free photo IDs are available from every registrars' office in Alabama; that the Secretary of State's mobile unit travels throughout the state to offer alternative locations; and that, if a voter cannot get to a registrars' office, he or she can request and receive a home visit by the mobile unit."

Discrimination claims notwithstanding, Branch said, the law's passage was "was driven by the need to address well-documented and public cases of voter fraud that occurred in Alabama."

In his dissent, Gayles wrote that the claims of voter fraud are barely supported by the evidence.  

"Indeed, defendant presented evidence of only two cases of in-person voter fraud in Alabama's history," he said.

"A close look at the history and the timing of the legislation and its actual impact on Black and Latino voters gives us a window into why Alabama likely designed a law to cure a problem that did not exist," wrote Gayles. 

He cited recordings of lawmakers using racial slurs and threats that "every black in this state will be bused to the polls" in discussing the legislation.

The district court erred in dismissing the case on summary judgment without weighing such factors as the racial impact and historical background of the legislation, and the availability of less discriminatory alternatives. 

The record showed that Black and Hispanic voters were nearly twice as likely to have no photo ID, Gayles wrote. 

"The District Court, weighing the significance of that evidence, called the disparity 'minuscule,'" he said. "This was improper at summary judgment."

"Indeed, under the District Court's logic, Alabama could pass a law that expressly states that its purpose is to discriminate on the basis of race and, as long as that law is facially neutral or its disparate impact is minimal, it would withstand 14th and 15th Amendment challenges," said Gayles. 

"This absurd result cannot be what the Constitution requires or the Supreme Court intends."

The plaintiffs are represented by a contingent of lawyers form the NAACP Legal Defense and Educational Fund, Covington & Burling and Wilmer Cutler Pickering Hale and Dorr.

In an email, LDEF lawyer Deuel Ross said they were "deeply disappointed with the Eleventh Circuit's ruling. We are conferring with our clients and considering next steps."

In a statement Alabama Attorney General Steve Marshall hailed the ruling.

"The federal appeals court decision affirms that Alabama's voter ID law is indeed constitutional," said Marshall.

"Opponents have repeatedly argued that Alabama's voter ID law's requirement that a voter must provide a photo ID is overly burdensome. As I have previously stated, Alabama's voter identification law, by both design and practice, is easily satisfied, and it contains procedures to allow anyone who does not have a photo ID to obtain one."

Marshall also praised his staff attorneys who "dedicated much of two years traveling the state of Alabama interviewing many witnesses including local election officials and private citizens in preparation to defend our voter ID law."

"I am very proud of their hard work as well as for the assistance of many individuals who gave of their time to help the State in preparation of our case," Marshall said.