Federal Courts grant a temporary reprieve from voter ID laws in Wisconsin and Texas

VotersThe U.S. Supreme Court on Thursday evening enjoined the state of Wisconsin from implementing its new voter ID laws after the 7th Circuit Court of Appeals had given its approval, based upon what Rick Hasen at Election Law Blog calls the Purcell principle, i.e., not changing the rules just before the election, and not because it believes Wisconsin is likely to succeed on the merits. Early vote-by-mail ballots had already been mailed to voters and votes cast without any requirement for voter ID.

Lyle Denniston at SCOTUSblog reports, Wisconsin voter ID law blocked (UPDATED) :

[T]he Supreme Court on Thursday night barred Wisconsin from enforcing a requirement that voters must produce a photo identification before voting, by absentee ballot or in person.  The Court majority’s one-paragraph order gave no reason, but the fact that this year’s election is less than a month away may have been the key factor.

The Court’s order was unsigned, but apparently had the votes of at least five Justices, since that would have been the minimum necessary to set aside a lower court’s order.

Justice Samuel A. Alito, Jr., joined in dissent by Justices Antonin Scalia and Clarence Thomas, would have allowed the law to be enforced for fairly technical legal reasons, but they conceded that “there is a colorable basis for the Court’s decision due to the proximity of the upcoming general election.”

Reflecting what must have been part of the internal discussion of the issue, Alito wrote that “it is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted.”

The order blocking enforcement of the law will clearly last throughout the time remaining for voting in Wisconsin.  It will remain until a petition for review is filed to test an order by the U.S. Court of Appeals for the Seventh Circuit allowing enforcement.  If that appeal is reviewed, Thursday’s order will continue in effect; it will be dissolved if review is denied, but that almost certainly would be after this year’s election is past.

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In Thursday’s order, the Supreme Court acted only on the challengers’ request to lift the panel’s order permitting enforcement of the state law.  However, when the challengers go forward with an expected appeal in this case, they are likely to ask the Court to overrule the panel’s final decision, too.

The Court’s action marked the third in recent days to deal with the spreading number of laws across the country, imposing new limits on voting rights.  In the other two incidents — Ohio and North Carolina — the Court allowed the restrictions to go into effect or to continue in effect.

The U.S. District Court for Texas in Corpus Christi on Thursday night issued its post trial opinion, striking down the voter ID law in Texas in an expansive opinion documenting the state’s long history of intentional racial discrimination against African-American and Hispanic voters, and finding that the Voter ID law: (1)  violates the constitutional prohibition on poll taxes, and (2) violates the Voting Rights Act,  bringing Texas back under the preclearance review of election law changes under the “bail-in” provision of Section 3(c) of the Voting Rights Act. Read the Opinion Here (.pdf). The opinion includes a permanent injunction against the voter ID law at pp. 142-143 of the opinion. A separate order is likely to follow.

The state of Texas will, of course, immediately appeal to the 5th Circuit Court of Appeals and the U.S. Supreme Court.

The Dallas Morning News reports, Federal judge blocks Texas voter ID law; state promises a quick appeal:

A federal judge on Thursday blocked Texas from enforcing voter ID requirements just weeks ahead of the November elections, knocking down a law that the U.S. Justice Department condemned in court as the state’s latest means of suppressing minority turnout.

The ruling by U.S. District Judge Nelva Gonzales Ramos of Corpus Christi is a defeat for Republican-backed photo ID measures that have swept across the U.S. in recent years and mostly been upheld in court. However, the U.S. Supreme Court on Thursday night blocked Wisconsin from implementing a law requiring voters to present photo IDs.

Gonzales Ramos, an appointee of President Barack Obama, never signaled during a two-week trial in September that she intended to rule on the Texas law — rebuked as the toughest of its kind in the U.S. — before Election Day. But the timing could spare an estimated 13.6 million registered Texas voters from needing one of seven kinds of photos identification to cast a ballot.
The Justice Department says more than 600,000 of those voters, mostly blacks and Hispanics, lack any eligible ID to vote.

Gonzales Ramos’ ruling says the law “creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.” It added that the measure “constitutes an unconstitutional poll tax.”

The Texas attorney general’s office quickly responded to Gonzales Ramos’ ruling.

“The state of Texas will immediately appeal and will urge the Fifth Circuit to resolve this matter quickly to avoid voter confusion in the upcoming election,” said a prepared statement from Lauren Bean, a spokeswoman for the office. “The U.S. Supreme Court has already ruled that voter ID laws are constitutional, so we are confident the Texas law will be upheld on appeal.”

Democratic gubernatorial candidate Wendy Davis went on the offensive after the ruling.

“This is great news for democracy,” Davis said. “I call on Attorney General Greg Abbott to drop his defense of a law that a court has now called a ‘poll tax’ and ‘discriminatory’ against African-Americans and Hispanics.”

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, said: “The court today effectively ruled that racial discrimination simply cannot spread to the ballot box.”

And Texas Democratic Party Chairman Gilberto Hinojosa called the ruling “a victory for all Texas voters.”

“This ruling affirms what Democrats have known all along: The Republican majority in the Texas Legislature deliberately passed a voter/photo ID law to disenfranchise Texas voters based on race,” Hinojosa said in a prepared statement. “Texas has a long history of voter discrimination. This ruling is a step in the right direction to ensure that all Texas voters have an equal voice at the ballot box.”

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[T]he Texas case attracted unusual attention from U.S. Attorney General Eric Holder.

He brought the weight of his office into Texas after the Supreme Court last year struck down the heart of the Voting Rights Act, which had prohibited the state from enacting the voter ID law signed by Republican Gov. Rick Perry in 2011. Democrats and minority rights groups joined the Justice Department in the lawsuit.

The full Voting Rights Act had blocked Texas and eight other states with histories of discrimination from changing election laws without permission from the Justice Department or a federal court.

Holder vowed to wring whatever protections he could from the new and weakened version, and made Texas a first target.

But prevailing in court required proving intentional discrimination, and Texas maintained that opponents produced no evidence.

The attorney general’s office said minorities and whites alike supported the law in public opinion polls. It also pointed to other states, such as Georgia and Indiana, where similar measures have been upheld.

But opponents slammed Texas’ law as far more discriminatory. College student IDs aren’t accepted by poll workers, but concealed handgun licenses are. Free voting IDs offered by the state require a birth certificate that costs as little as $3, but the Justice Department argued that traveling to get those documents imposes an outsize burden on poor minorities.

As a result, opponents say, Texas has issued fewer than 300 free voter IDs since the law took effect. Georgia, meanwhile, has issued 2,200 voter IDs under a similar program with more robust outreach.

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Hinojosa, the state Democratic leader, on Thursday cited Lyndon Johnson, the former president from Texas who championed equal rights.

“As … Johnson once said: ‘It is wrong — deadly wrong — to deny any of your fellow Americans the right to vote in this country.’”

If the court follows up with a bail-in order, Texas could become the first state brought back under a preclearance regime since Shelby County.”  Rick Hasen explains, The Biggest Aspect of the Texas Case: Texas To Be Covered Again by Section 5 (If Case Stands):

Getting Texas and North Carolina covered again under the Bail In provisions of the Voting Rights Act has been a key strategy of the U.S. Justice Department. These are test cases, and it is an extremely high hurdle. Not only does DOJ have to prove the state engaged in intentional racial discrimination in voting, but the court upon so finding still has discretion as to whether to require the state to be subject again to preclearance and to fashion the scope of the order (in terms of time and types of changes subject to preclearance). At the end of the TX order, the judge says there will be a status conference to determine the scope of the preclearance.

If this works, it will be very important because it would mean that a variety of changes, such as voter id laws, registration laws, and redistricting, would again be subject to federal approval (either DOJ or a three judge court in DC).  Preclearance is a big stick for the federal government.

In Shelby County, 4 Justices said that preclearance had to be tied to current conditions to be constitutional. (Justice Thomas would have gotten rid of preclearance even for bail in). 4 Justices believe preclearance even under the old rules is ok. If the TX trial court has made credible findings that Texas has engaged in intentional racial discrimination in voting, even the conservative Justices could agree to preclearance. But that’s no sure bet, and you can be sure that Texas will litigate this question very, very hard.

Section 2 and Section 3 of the Voting Rights Act remain in effect, at least until the “Felonious Five” of the U.S. Supreme Court decide to legislate from the bench and gut a landmark civil rights act that has been upheld by the Court numerous times in its almost 50 year history.

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