Case against GOP Photo ID voting law in Lone Star State is very different than recent cases before the Court, plaintiffs argue
UPDATE: Texas responds, blames 'emergency' on plaintiffs' rush to have case tried before the election...
By Ernest A. Canning on 10/16/2014, 1:09pm PT  

Attorneys for U.S. Congressman Mark Veasey (D-TX) and other plaintiffs have filed an Emergency Application[PDF] with the U.S. Supreme Court, seeking to restore a lower court ruling that struck down the law last week as intentionally discriminatory and an unconstitutional poll tax. That initial U.S. District Court ruling was subsequently stayed by the 5th Circuit Court of Appeals earlier this week.

Veasey's application was followed by the filing of another Emergency Application [PDF] by the United States Department of Justice (DoJ). Both were filed with Justice Antonin Scalia who oversees the 5th Circuit. Scalia has instructed the DoJ to respond by 5p ET on Thursday.

Both applications to SCOTUS were filed in the case of Veasey v. Perry in which a U.S. District Court, after a full trial on the merits, imposed a permanent injunction, preventing the State of Texas from implementing the nation's strictest photo ID law, Senate Bill 14 (SB 14).

The District Court determined that, if implemented, SB 14 could disenfranchise more than 600,000 registered Texas voters who are disproportionately black and Hispanic. The District Court not only ruled that SB 14 violated the U.S. Constitution, the Voting Rights Act (VRA) and amounted to an unconstitutional poll tax, but expressly found that it was passed as the result of deliberate and willful racial discrimination.

The emergency petitions ask that the Supreme Court lift the U.S. 5th Circuit's 11th hour stay of the injunction so as to prevent electoral chaos and confusion in the rapidly approaching November election. In the first petition, the Veasey plaintiffs argue that what the 5th Circuit did in this case --- stay a permanent injunction that was issued on the basis of a District Court finding of intentional discrimination after a full trial on the merits --- was "virtually unheard of" in the annals of American jurisprudence.

Plaintiffs contend that the 5th Circuit misapplied a leading Supreme Court case, Purcell v. Gonzalez [PDF] (2006) pertaining to the issuance of injunctions on the eve of a pending election. That case does not, as the 5th Circuit ruled, mandate a per se rule that always precludes changing a law immediately prior to an election. The DoJ contends that no such per se "rule exists, and the court of appeals clearly and demonstrably erred in failing to apply the established stay factors."

Instead, plaintiffs forcefully argue, "The Purcell principle", mandates that an appellate court give deference to the factual findings of the District Court. The 5th Circuit, they add, erred by ignoring the requirement of Purcell that Texas prove it would likely succeed on an appeal. The 5th Circuit also erred, they say, because it failed to balance the state's allegations about possible confusion that might ensue from implementing pre-SB 14 law against the "actual" confusion, chaos and mass disenfranchisement that the District Court, based upon uncontested evidence, concluded would occur if SB 14 is enforced in the November 4th election (early voting begins in TX on October 20th).

"Imagine that a state passed a law, six months before an election, stating that 'Negroes cannot vote,'" the plaintiffs write. "It would be ludicrous for an appellate court to turn around and stay that injunction because of some per se rule that election laws can never change immediately prior to elections"...

A very different case

The case against the Texas GOP's Photo ID voting law, plaintiffs argue, is completely different from the one on which "The Purcell principle" --- which has served as a precedent, of late, for emergency rulings made on voting laws so far this year by the Court --- is based.

Purcell involved a 2006 legal challenge to an Arizona ballot initiative that required voters to present proof of citizenship to register to vote and to provide ID at the polls. That measure had received preclearance approval from the DoJ under Section 5 of the Voting Rights Act (VRA). The District Court refused to enter a preliminary injunction, belatedly issuing a finding that the plaintiffs had failed to establish "a strong likelihood of success," which was a prerequisite for a preliminary injunction.

With the election approaching, the 9th Circuit Court of Appeal at the time, without express findings based on a full trial (as in the Texas case), issued a preliminary injunction during the pendency of the appeal. The Supreme Court noted the need to weigh the potential confusion that can arise, especially from conflicting orders, issued on the eve of an election, that can provide a "consequent incentive [for voters] to remain away from the polls." The "reversal in Purcell," the DoJ argues, occurred because of the 9th Circuit's "failure...to defer to the district court's ruling (or to show that the ruling and findings of the District Court [were] incorrect.)"

That, both Veasey and the DoJ contend, is precisely the mistake made by the 5th Circuit in the Texas case, where it not only failed to provide deference to the factual and legal determinations made by the District Court, but also failed to so much as take those findings into account, let alone demonstrate that the District Court may have erred. In fact, the appellate court did not even bother to challenge the District Court's finding that the law was discriminatory. "The individual voter plaintiffs may be harmed by the issuance of this stay," the 5th Circuit majority flatly stated.

In the Texas Veasey case, by contrast with Purcell, the District Court issued a permanent injunction explained in the judge's 147-page opinion [PDF]. Its findings that "more than 600,000 lawfully registered Texas voters lacked one of the necessary photo IDs" and that this entailed a disproportionate number of racial minorities, who face disenfranchisement if SB 14 is implemented --- findings for which the State failed to offer "contradictory evidence," according to the emergency petition --- were not contested by the 5th Circuit Court of Appeal.

Unlike Purcell or any of the other recent cases in which the Supreme Court granted stays based on the precedent set forth in that case, the Texas case involves express findings by the District Court that SB 14 was the product of deliberate racial discrimination.

"The state," the Veasey petition argues, "has no interest in --- and the public certainly has no interest --- in enforcing intentionally discriminatory laws." The DoJ adds to the weight of that argument by pointing to the District Court's findings as to how, in the face of demographic changes that threaten to reduce white Anglo Texans to minority status, each successive Photo ID bill enacted by the state became increasingly restrictive of minority voting rights --- with SB 14 having been passed "with 'unnatural speed' over the objection of legislators who represented predominantly non-white districts," and that "the Texas Legislature had rejected a 'litany of ameliorative amendments' that would have softened SB 14's impact on minority voters."

The DoJ observes:

The district court stated that Texas had not provided evidence that S.B. 14's discriminatory features were necessary to accomplish fraud prevention, prevent non-citizen voting, or increase voter confidence and voter turnout.

These differences, according to Loyola Law Prof. Justin Levitt, make Veasey a "far cry" from Purcell.

Electoral chaos

Both the evidence and the District Court's factual findings reveal that far greater confusion will ensue from implementing SB 14 than from enjoining it. Thus, the Veasey application to SCOTUS notes:

the District Court found, in SB 14, the Legislature prescribed a quixotic collection of photo IDs with little rhyme or reason and without regard to whether the type of ID is a reliable indicator of the voter's identity.

The examples listed are nothing short of bizarre. "[E]mployees of private contractors of the U.S. Defense Department may use their photo IDs to vote," according to the emergency application, "but Defense Department civilian employees may not."

"Mark Veasey (a member of Congress) can use his congressional photo ID to access highly secure government installations but cannot use the same ID to vote in Texas." Go figure!

One would think that with the complexities in what is or is not a valid photo ID for voting purposes, Texas would have provided extensive education to both citizens and poll workers. But alas, the state has made no effort to educate either voters or poll workers about what the District Court found to be a "confusing maze of rules and regulations."

Where pre-SB 14 procedures have been in place for years --- requiring ID for voting, but a much wider variety of them --- the only experience Texas has had under the new restrictive law entailed several minor elections, none of which involved a turnout of more than 10% of the electorate, some as little as just 1%.

The DoJ notes [emphasis added]

"[B]oth voters and elections officials are likely to be more familiar with the logical pre-SB 14 requirements than with the maze created by SB 14. ... county elections officials have since confirmed in their declarations…that it would be easier to conduct the upcoming election under the old requirements than under SB 14.

In an exchange of emails, Prof. Levitt suggested that plaintiffs were probably correct in their contention that Purcell actually supports a lifting of the stay.

Thus, it appears that there is still a significant possibility that the stay will be lifted by the U.S. Supreme Court, and that more than 600,000 Texans will, come November, be afforded the opportunity to exercise a right to vote which the same Supreme Court has repeatedly recognized as providing "the essence of a democratic society, and any restrictions on that right strike at the heart of representative government."

Now, we wait, as do millions of Texas voters, for the Supremes to make their determination on whether democracy prevails or fails this year in the Lone Star State.

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UPDATE 4:35pm PT: Texas has filed their response [PDF] to SCOTUS in which, as Lyle Denniston explains at SCOTUSblog, they blamed civil rights groups of having erected an "emergency" by insisting "on a September trial that would produce a final judgment only days before the start of early voting," as opposed to trying the case next year.

Waiting until next year, of course, would permit Republicans to secure office in this year's mid-term without those pesky African-Americans and Hispanics mucking up the GOP's preferred results by exercising their right to vote.

The state also claims all of the usual stuff: Photo ID deters fraud; the law is very popular; it's just like Indiana's version of the law approved by SCOTUS in the Crawford case in 2008; and, oh, yeah, there is nothing at all racist about such laws. It seems they used all of the old standbys that conservative Reagan-appointed 7th Circuit Judge Richard Posner absolutely demolished late last week, point by point.

Given the District Court's finding as to the extraordinary steps Governor Perry and Texas Republicans took to ram SB 14 through the Legislature on an "emergency" basis --- this despite the absence of any evidence of in-person voter fraud, let alone an actual emergency --- and given the alacrity of Attorney General Greg Abbott's announcement that he would immediately implement the law just moments after the Supreme Court gutted Section 5 of the VRA, one suspects that the plaintiffs just might regard the "lack of emergency" response from the state as reflecting a remarkable display of chutzpah.

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UPDATE 10/17/2014: The plaintiffs have filed a very brief response [PDF] to the state's response yesterday.

The most persuasive part: "This is precisely the type of case that this Court had in mind when it pointed out in Shelby County, Ala. v. Holder [the case in which SCOTUS gutted Section 5 of the Voting Rights Act] that other remedies, such as injunctive remedies, remain available to protect the rights of voters."

They cite the SCOTUS majority in that case, which included: "Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2."

Plaintiffs then go on to conclude: "If voters cannot be protected after findings --- including a finding of intentional racial discrimination --- and a permanent injunction in a case where there was a year of discovery, nine days of trial, and an exhaustive, comprehensive District Court opinion, then when will they be?"

Good point. And now we wait for SCOTUS...

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UPDATE 10/18/2014: Despite findings that the TX Photo ID law is deliberately discriminatory, the U.S. Supreme Court will allow its use in this year's midterm elections anyway. Full details now here...

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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