Outside the Beltway

Supreme Court Allows Texas Voter ID Law To Remain In Effect Pending Appeal

Another pre-election stay ruling from the Supreme Court.

Doug Mataconis · Saturday, October 18, 2014 · 6 comments

Things have moved fast in the past week in the legal wrangling over Texas’s Voter ID law.  Last Friday, a Federal District Court Judge in Corpus Christi struck down the law based both on what she found to be a discriminatory impact on minorities and the poor and evidence of a discriminatory intent in passing the law. With less than three weeks left before Election Day at the time, that meant that the law could not be implemented during the upcoming midterm elections. Texas, however, appealed the Judge’s mandate putting the law on hold to the Fifth Circuit Court of Appeals, which lifted the stay late on Tuesday, meaning that the law could be implemented at the election. Opponents of the law responded by appealing the stay issue to the Supreme Court, which has faced a plethora of similar election law stay requests since returning in October from Wisconsin, Ohio, and North Carolina. Late yesterday, the Supreme Court ruled that the Texas law could continue to go forward while the underlying appeal is pending:

WASHINGTON — The Supreme Court on Saturday allowed Texas to use its strict voter identification law in the November election. The court’s order, issued just after 5 a.m., was unsigned and contained no reasoning.

Justice Ruth Bader Ginsburg issued a six-page dissent saying the court’s action “risks denying the right to vote to hundreds of thousands of eligible voters.”

Justices Sonia Sotomayor and Elena Kagan joined the dissent.

The law, enacted in 2011, requires voters seeking to cast their ballots at the polls to present photo identification like a Texas driver’s or gun license, a military ID or a passport.

Those requirements, Justice Ginsburg wrote, “may prevent more than 600,000 registered Texas voters (about 4.5 percent of all registered voters) from voting in person for lack of compliant identification.”

“A sharply disproportionate percentage of those voters are African-American or Hispanic,” she added, adding that “racial discrimination in elections in Texas is no mere historical artifact.”

Texas officials quarreled with Justice Ginsburg’s math, which was drawn from evidence presented to a trial court. In their brief urging the justices to allow the election to proceed under the 2011 law, they said that trying to determine the number of people the law would deter from voting was a fool’s errand and called the estimate of 600,000 disenfranchised voters preposterous.

Justice Ginsburg also said the law “replaced the previously existing voter identification requirements with the strictest regime in the country.”

She noted that Texas will not accept several forms of ID that Wisconsin does, including “a photo ID from an in-state four-year college and one from a federally recognized Indian tribe.” Last week, the Supreme Court refused to let Wisconsin use its voter ID law in the current election.

Texans who lack a required form of identification cannot easily obtain it, Justice Ginsburg wrote. “More than 400,000 eligible voters face round-trip travel times of three hours or more to the nearest” government office issuing IDs, she wrote, and they must generally present a certified birth certificate to get one.

Birth certificates ordinarily cost $22. The state offers cheaper ones, costing $2 to $3, for election purposes, Justice Ginsburg wrote, but it has not publicized that option on the relevant website or on forms for requesting birth certificates.

“Even at $2, the toll is at odds with this court’s precedent,” she wrote, citing a 1966 decision striking down Virginia’s poll tax.

(…)

A brief filed by the Texas State Conference of N.A.A.C.P. Branches and other groups said confusion at the polls was unlikely under Judge Ramos’s injunction. “Expanding the list of acceptable IDs will not disenfranchise any voter,” the brief said, “since the forms of ID acceptable under the old voter ID system include all forms of photo ID specified by” the 2011 law.

Justice Ginsburg agreed, adding that Judge Ramos had found “the state’s efforts to familiarize the public and poll workers regarding the new identification requirements” to be “ ’woefully lacking’ and ‘grossly’ underfunded.”

“In short,” Justice Ginsburg wrote, “any voter confusion or lack of public confidence in Texas’ electoral processes is in this case largely attributable to the state itself.”

Lyle Denniston discusses Ginsburg’s dissent further:

The Supreme Court’s action was the fourth it has taken in recent days as controversies over this year’s election procedures began reaching it as actual voting approached.  The Court has taken varying positions, blocking a voter ID law in Wisconsin but allowing a reduction of early voting in Ohio and restrictions on registration and vote-counting in North Carolina, and, on Saturday, allowing Texas to require new voter identification.

Justice Ginsburg sought to draw distinctions between what the Court had done in the Ohio and North Carolina situations and the Texas situation.  Neither of those cases, her dissenting opinion said, “involved, as this case does, a permanent injunction following a full trial and resting on an extensive record from which the District Court found ballot-access discrimination by the state.”

The Justice Department and civil rights groups that filed court challenges to the Texas law had hoped that it would be a significant test case of the continuing effect of the Voting Rights Act after the Supreme Court had nullified a key section of the Act in its 2013 decision in Shelby County v. Holder.

Because the Corpus Christi ruling against the law is now on hold, it is unclear whether the judge will move ahead now with a separate review that she was asked to make, on the issue of putting Texas under a regime of court supervision based upon her finding of intentional racial bias in the voter ID law.

In the meantime, the state does not have to get the judge’s approval for any changes it might have considered to remedy the constitutional and legal violations the judge had found.

Once again, outside of Ginsburg’s dissent, we don’t have any real explanation for the majority’s actions here. As we’ve seen in the other cases, though, it seems likely that the Court was again looking at the issue of the stay in as it did the case in Wisconsin, through the lens of its 2006 admonition to the Ninth Circuit regarding changes to existing election laws in the period immediately prior to an election as set forth in Purcell v. Gonzalez. While the Court seemingly used that case in deciding to reimpose the stay in Wisconsin, the fact that the outcome was different here isn’t necessarily hard to understand. In the Wisconsin case, there had been a stay in place against the relevant law dating back to April and, in reliance on that stay, the various counties around that state began the preparations for Election Day based on the assumption that the Voter ID law would not be in effect on Election Day. Most importantly in that regard, there had been tens of thousands of Absentee Ballots mailed out in a manner that didn’t comply with the law. When the Seventh Circuit lifted the stay in September, it threw all of that into chaos and created the question of whether all of the people to whom those ballots had been sent would have their ballot nullified, whether new absentee ballots would have to be sent out (assuming there was even enough time for that when it came to overseas and military voters), whether the ballots would be counted provisionally, or whether the voters in question would be stuck with the option of having to appear at the polls on Election Day or not have their vote counted.

That issue does not exist in the Texas case. There, the Voter ID law had been in effect until the District Court ruling came down a week ago and, if anything, voting authorities had spent the last several months preparing for the election in reliance on the fact that the law would be in effect. That all changed with Judge Gonzalez handed down her order and said that the law could not be implemented for the upcoming election. Under a strict ruling of the Purcell case, such a last minute change to election laws is something that the Judge should have avoided, which she could have done by either delaying the effective date of her order or waiting until after the election to issue the opinion. Alternatively, of course, she could have issued the opinion much earlier so that authorities would have had a more reasonable period of time to adjust their preparations based on the changed status quo. Again, since the Court didn’t provide a lengthy explanation for its actions we can’t be sure what the reasoning was, but this is the most plausible legal explanation for the difference between the outcome here and the outocme in the Wisconsin case.

Hanging over this all, of course, are the issues raised in Justice Ginsburg’s dissent, especially those regarding Judge Gonzalez’s finding of actual discriminatory intent behind the law. This is a finding that has been missing from any of the other major Voter ID decisions to date, and it could potentially be a game changer for the ultimate fate of the case in an appeal on the merits. For example, it could be the reason why Wisconsin’s law ends up surviving on appeal while the Texas law does not. For the purposes of this stay request, though, it strikes me that these findings, which may not withstand scrutiny on appeal, should be given the heavy weight that Ginsburg would give them here. The question on the stay request is whether the status quo should be maintained, and given the ruling in Purcell it seems clear that the preference should be toward maintaining, for now, the status quo that was in place before Judge Gonzalez ruled last Friday. Justice Ginsburg’s arguments may indeed win the day, but that will have to wait for another day.