Fifth Circuit Allows Texas Voter ID Law To Remain In Effect
After a setback, Texas will be allowed to enforce its Voter ID law. At least for now.
The Fifth Circuit Court of Appeals ruled late yesterday that Texas may continue to enforce its Voter ID law during the upcoming election notwithstanding the fact that a Federal Judge had declared the law unconstitutional last week, but the issue of whether or not a stay will be issued is headed to the Supreme Court:
A federal appeals court said Tuesday that Texas can enforce its strong voter identification requirements in the November election, temporarily blocking a lower court’s ruling last week that the law was an unconstitutional effort to suppress the votes of blacks and Hispanics.
The three-judge panel put off consideration of whether the lower-court decision, which condemned the law, should stand permanently. Rather, it said that with early voting starting on Oct. 20, a change in the rules could cause confusion among voters and poll workers, something the Supreme Court has sought to avoid in other cases.
“Based primarily on the extremely fast-approaching election date, we stay the district court’s judgment pending appeal,” Judge Edith Brown Clement wrote on behalf of the panel of the United States Court of Appeals for the Fifth Circuit, based in New Orleans.
The contested Texas law requires that voters show certain types of state-issued ID, a far tighter requirement than in the past, when voters could provide varied evidence, even an electric bill, establishing their identities. Virtually no examples of in-person voter fraud have been reported.
The opponents of the law expressed concern about the order, saying the risk of disenfranchising voters outweighed the potential for disruption. They were considering whether to file an emergency appeal to the Supreme Court.
The order “places in harm’s way the votes and voices of more than 600,000 registered voters, a disproportionate number of whom are people of color,” said Ryan P. Haygood, a lawyer with the NAACP Legal Defense Fund. “This law does all harm and no good,” he said in a statement, adding that the appeals court order “will not stand.”
But Lauren Bean, a spokeswoman for the Texas attorney general, said, “We are pleased that the appeals court has unanimously agreed that Texas’ voter ID law should remain in effect for the upcoming election.” She added that “the state will continue to defend the voter ID law and remains confident that the district court’s misguided ruling will be overturned on the merits.”
The opponents of the law have already announced that they would appeal this matter to the Supreme Court, so we’re likely to get a ruling on the stay from the Justices by the end of the week or over the weekend. Given what happened with the Wisconsin Voter ID case, where the Court ordered that enforcement of the law be stayed pending appeal, it would be natural to conclude that the most likely outcome is that the Justices will also bar the Texas law from taking effect for the election. It’s worth noting, however, that the Supreme Court has had some seemingly contradictory rulings on pre-election stays so far this term. While it has blocked the Wisconsin law from being enforced, it allowed an Ohio law cutting back on early voting and a North Carolina that made changes to early voting and same-day voter registration, to go into effect. While the Court hasn’t necessarily explained the reasoning for these seemingly different decisions, they all arguably seem to revolve around the principles that the Court laid out in Purcell v. Georgia, a 2006 pre-election stay decision that I’ve discussed before. In layman’s terms, in that case, the Court held that Federal Courts ought to consider the disruptive effects the granting or denial of stay on enforcement of an election law would have when such applications are made in the period immediately before an election.
Indeed, a concurring opinion from one of the three judges who decided this matter refers specifically refers to the Purcell case:
The district court issued a thorough order finding that the Texas voter ID law is discriminatory. We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory. As always, however, we must follow the dictates of the Supreme Court. In two recent decisions, it stayed injunctions issued based on findings that changes in an election law were discriminatory. See North Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL 5026111 (U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P., 14A336, 2014 WL 4809069 (U.S. Sept. 29, 2014). It also lifted the Seventh Circuit’s stay of a district court’s order in place since the spring that enjoined Wisconsin’s voter ID law. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014). I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court’s recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis. The injunction in this case issued even closer in time to the upcoming election than did the two out of the Fourth and Sixth Circuits that the Supreme Court recently stayed. On that limited basis, I agree a stay should issue.
Rick Hasen comments:
There are two potential differences here, which could suggest applying the Purcell principle differently (as I suggested at Slate). First, the risk of changing the rules close to the election should perhaps be balanced with the risk of disenfranchisement. Second, there is less of a problem of turning OFF a voter ID law than turning it ON. Here, there may be some people who are asked for ID who should not be if the ID law is put on hold. But that’s a lower risk of disenfranchisement than if the law, if discriminatory, remains in place. The majority’s response on this point was exceptionally weak. The court wrote that the plaintiffs “fail to recognize that inconsistent treatment of voters, even in just ‘some isolated precincts,’ raises a significant constitutional concern, particularly when this disparate treatment is virtually guaranteed by the late issuance of the injunction.” This is weak because there will be inconsistent treatment of voters either way (including the disenfranchisement of voters who are eligible to vote but who won’t be because of an arguably discriminatory voter id law). Justin makes this point further.
So if you are the DOJ or the private plaintiffs, do you go to the Supreme Court for emergency relief on this basis? There’s not much of a downside at this point. The Court is almost certainly going to address the merits of the equal protection and section 2 issues in either this case, or the WI, NC or OH cases (or all of them). So there’s no keeping this issue out of the Court. Further, there are the reasons I’ve given above for distinguishing these cases under the Purcell principle. It is a longshot that they will be acceptable to the conservative 5 Justice majority of the Court, but there’s little harm in trying. But in this one, there’s a greater chance of a 5-4 split than in these other cases.
Given this, it’s unclear how the Supreme Court will handle the request for a stay in this case? Will they rule the same way they did in the Wisconsin case, or will this be more like Ohio and North Carolina. One major difference between this case and Wisconsin is the fact that there don’t appear to be the same allegations that allowing the law to go into effect would create chaos as existed in Wisconsin. In no small part, this would appear to be because the Texas law does not apply to absentee ballots in the manner that the Wisconsin law does and it was the issue of thousands of absentee ballots having been mailed when the law was stayed by Federal Court Order that was a primary argument against the law going into effect prior to this election. Whether that distinction is controlling for the Justices or not remains to be seen, and, much like in the Wisconsin case, we may not get an explanation for whatever they do decide to do with the application to stay the effective date of the law. My guess is that we will see the Justices decide differently here than they did in the Wisconsin case and allow the law to go into effect, but that’s only a guess. In any case, this is an issue that will have to wait until we get a ruling from One First Street.
Here’s the opinion: