5th Circuit Court of Appeals lifts stay of Texas voter ID law – appeal to SCOTUS

The Fifth Circuit Court of Appeals on Tuesday afternoon gave the state of Texas permission to enforce its strict voter ID law, finding that a federal judge’s ruling last week barring the use of that law “substantially disrupts the election process . . . just nine days before early voting begins.” Lyle Denniston at SCOTUSblog reports, Texas allowed to enforce voter ID law (UPDATED):

VotersThe three-judge panel commented that the Supreme Court “has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve of an election.” That was a controlling reason, it said, for permitting the law to govern voting in the remaining days before the November 4 election.

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Circuit Judge Edith Brown Clement wrote the opinion, joined in full by Circuit Judge Catharina Haynes.  Circuit Judge Gregg J. Costa went along only with the result, saying that he interpreted recent Supreme Court actions in voting rights cases as expressing “concern about confusion resulting from court changes to election laws close in time to the election.”  That view, he said, should “carry the day” for purposes of temporarily blocking changes that otherwise would go into effect.

Thus, Judge Costa did not go along even with the part of the Clement opinion which concluded that state officials had “made a strong showing” that the it was likely to win on the merits, “at least as to its argument that the district court should not have changed the voting identification laws on the eve of the election.”

The Clement opinion, though, did not appear to express a view on whether, when a final ruling is made on the validity of the voter ID law, that it would be upheld.  Aside from the majority’s view on the strength of the state’s argument about changes with the election imminent, the opinion said that other issues on the merits of the law “are significantly harder to decide.”

UPDATED 6:24 p.m.  Lawyers for civil rights groups challenging the Texas voter ID law said on Tuesday afternoon that they will now ask the Supreme Court to block the law.   The Justice Department is also involved in the case, but its plans are not known at this time.  The Court has recently taken different approaches to new voting restrictions, blocking them in Wisconsin but allowing them to remain in place in Ohio and North Carolina.

Rick Hasen at Election Law Blog explains that the Appellate Court is relying on the “Purcell principle.” Analysis: Texas Voter ID Decision: To #SCOTUS or Not?:

The Fifth Circuit’s order in the Texas voter id case relies on “the Purcell principle” that courts should not change election rules in advance of the election. Although this outcome was expected, this ruling also shows, as I laid out in Slate, the difficulty of applying the Purcell principle in the case where voters face disenfranchisement.

Both the majority and the concurrence recognize the real risk that voters will be disenfranchised by the ruling of the Court. The majority flatly states: “The individual voter plaintiffs may be harmed by the issuance of this stay. But we find that this harm does not outweigh the other three factors.” The concurrence is more ambivalent but feels bound by the Purcell principle from the Supreme Court’s recent OH, WI ,and TX cases:

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.

Yet 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.

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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.

This craziness in the courts over election law is the direct result of the GOP war on voting.

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