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"...

Well, KPFK/Pacifica Radio is still on fund drive this week, but there is just too much going on to not do a new BradCast for my network affiliate stations and for you.

So, instead of live from the KPFK studios this week, we are once again "live" from BRAD BLOG World News Headquarters once again for this week's show. (If you heard last week's episode/primal scream, you'll be happy to know that the news this week is considerably more encouraging!)

Having trouble keeping up with the very latest on all of the on again/off again GOP voter suppression laws across the country just over two weeks before Election Day? Me too! So, if you missed any of our roller coaster coverage here at the blog, on all the fine messes over the past week or so, I try to get you all caught up on what you need to know about the latest in the court battles over the unconstitutional Republican Photo ID voting restrictions in Wisconsin, Arkansas and Texas...and on the one devastating appellate court opinion that might ultimately kill them all once and for all.

Buckle up (and please feel free to drop something in the BRAD BLOG Tip Jar while you're listening!)...

Download MP3 or listen online below...

[This article now cross-published by Salon...]

This is not unexpected, though its still disturbing to those concerned about voting rights and the possibility that more than half a million legally registered voters in Texas may not be allowed to vote in this November's election.

A three judge panel on the 5th Circuit Court of Appeals has, for now, blocked the U.S. District Court's ruling last week in Texas, issued after a full trial on the merits of the law, which had struck down state Republicans' polling place Photo ID voting restriction after finding it deliberately discriminatory and a violation of the U.S. Constitution and federal Voting Rights Act.

Following Tuesday's order by the 5th Circuit [PDF] reversing the lower court ruling, for now, the plaintiffs challenging the state statute said, almost immediately, that they plan to file an emergency appeal with the U.S. Supreme Court to put the law back on hold before the November elections.

Voting rights proponents worry that, if the Court holds true to its recent rulings in voting rights cases in NC, in OH and, most recently, in WI, they are likely to allow TX' discriminatory law to stay in place this November, pending a full hearing on the merits at a later date.

There is, however, some important differences in the TX case than in those other three, which we'll explain in a moment.

Texas had appealed the initial 147-page ruling [PDF] by U.S. District Court Judge Nelva Gonazles Ramos, issued last week, which found that the Texas Photo ID voting statue, SB 14, "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." She also determined that the state requirement that voters produce one of a few very specific types of state-issued Photo ID when voting at the polling place amounted to an "unconstitutional poll tax", since all such ID requires at least some payment by voters...

Hopefully you've read the amazing opinion offered by the conservative, Reagan-appointed appellate court Judge Richard Posner by now, absolutely demolishing both Wisconsin's Republican-enacted Photo ID voting law, and pretty much all others --- including the first-in-the-nation such law in Indiana that Posner himself was responsible for upholding back in 2008!

If not, go read it and then come back. It's that good and that important. Either way, we may have a bit more to say about it in the near future, as it's an absolutely landmark opinion on this issue --- one that we've been covering at The BRAD BLOG for more than a decade now --- even as a dissent.

But there's one fairly amazing sidebar to all of this, at least to me, that I've been meaning to note here --- if only because it seems so bizarre...

In a late 6 to 3 ruling, just weeks before Election Day, and coming just minutes after the release of very good news in regard to a similar law in Texas, the U.S. Supreme Court has now blocked Wisconsin's Photo ID voting law for this November's election.

A 1-page order [PDF] vacates a 7th Circuit Court of Appeals stay of the U.S. District Court’s permanent injunction that had, until blocked by the Appeals court, prevented Wisconsin from enforcing its Republican-enacted photo ID law.

SCOTUS has now restored the right of some 300,000 duly registered Badger State voters to take part in the November 4, 2014 election. Many of those lawfully registered voters would have lost that right, simply because they lacked a narrow form of a state-approved photo ID.

According to the District Court Judge Lynn Adelman's April ruling after the trial, it was "absolutely clear," based on evidence and expert testimony, that Wisconsin's law would have "prevent[ed] more legitimate votes from being cast than fraudulent votes."

Thursday's SCOTUS order is likely to come as a disappointment to WI's Republican Gov. Scott Walker who has regarded the Photo ID law as a top priority in advance of his "toss up" re-election contest against Democratic challenger Mary Burke. Though 300,000 registered voters --- 10% of the electorate in WI --- might have been disenfranchised by the law, but for tonight's ruling by the Supremes, Walker was named the winner of his initial 2010 election by just under 125,000 votes...

In a 147-page ruling [PDF] released Thursday evening, "after hearing and carefully considering all the evidence" presented in the trial which ended on September 22nd, a U.S. District Court in Texas has found that the state's polling place Photo ID law, SB 14, is discriminatory and violates the U.S. Constitution in at least four different ways.

"The Court holds that SB 14 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," U.S. District Court Judge Nelva Gonzales Ramos writes in her ruling. "The Court further holds that SB 14 constitutes an unconstitutional poll tax."

The ruling that now permanently enjoins the Texas law, again, follows a long string of federal rulings striking down Photo ID voting restrictions in the state under Section 5 of the federal Voting Rights Act. In 2012, both the Dept. of Justice and a three-judge panel of federal judges found the law to be discriminatory under the Act, and that, based on data supplied by the state themselves, it would serve to disproportionately disenfranchise both poor and minority voters.

The very same law was once again implemented, however, by Lone Star State Republicans just after the U.S. Supreme Court gutted Section 5 of the VRA last year. The current challenge to the law was brought under Section 2 of the Act, as well as the U.S. Constitution itself. Judge Gonzales Ramos found that the discrimination found by previous bodies was plainly still present in the law...

If you didn't make it through our detailed rant on how factually wrong, from top to bottom, rightwing Judge Frank Easterbrook of the 7th Circuit Court of Appeal was in his "horrendous" ruling on Wisconsin's GOP Photo ID voting law (now pending an emergency ruling by the U.S. Supreme Court), the ACLU focused in a press release on the same thing we did --- but in a much shorter version.

Dale Ho, director of the ACLU's Voting Rights Project, said in a statement issued after the ruling: "Permitting this law to go into effect so close to the election is fueling voter confusion and election chaos in Wisconsin, particularly for the many voters who have already cast their ballots. Voters deserve a fair shake, and this last-minute disruption changes the rules of the game in an election that is already underway, and risks locking out thousands of voters."

Then, the ACLU offered this pithy bullet point --- which summarizes our long article (taking apart each of these false claims one by one) --- to underscore the "factual inaccuracies in the appeals panel's ruling":

Yup. More than 300,000 registered voters in the state --- nearly 10% of the registered electorate --- as determined during the full trial on the merits of the case in the U.S. District Court. That trial resulted in the law being struck down as both unconstitutional and in violation of the federal Voting Rights Act.

Until that ruling was overturned by a 5 to 5 decision by the 7th Circuit, later justified by the Federalist Society's Judge Easterbrook's "horrendous" ruling earlier this week.

And, remember, Republican Governor Scott Walker, who is in a "toss up" re-election contest against Democratic challenger Mary Burke this year, was named the winner of his original 2010 election by just 124,638 votes. That margin is less than half of the number of legally registered voters in the state who are now unlikely to be able to cast a vote at all in this year's election, unless SCOTUS tosses out the ridiculous, falsehood-riddled ruling of the 7th Circuit.

Given the SCOTUS decisions this week in NC and last week in OH, that possibility seems to be growing dimmer by the hour.

Nice to have friends in high places who are willing to just make shit up though, eh Governor?

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KPFK/Pacifica Radio is on fund drive of late, but with all the breaking election news this week, I couldn't stand to not do a fresh BradCast for my syndicated network affiliates who deserve better than a "Best Of" on a week like this one, as Election Day draws near.

So, since it appears this year's election is likely to be decided in the courts, before we even get to Election Day, here's our non-KPFK "Special Election Coverage Edition" for the affiliates and for you, as produced here at The BRAD BLOG World News Headquarters, rather than at the radio station as it is usually done.

No guests, no callers, just me, lots of information and rants, and an occasionally thought or question from my producer Desi Doyen. Given all of that, and the news this week and last (particularly from SCOTUS), the result may be somewhere between a radio broadcast and a primal scream. But many of my shows seem to amount to that these days.

We covered, among other things, the new GAO report confirming Photo ID voting restrictions depress turnout of African-American and younger voters; SCOTUS overturning appellate courts to allow GOP voter suppression laws in NC and in OH, with a decision on WI's voter suppression law not far behind (thanks to the federal judge who lied about it); Federal court striking down VA's gerrymandered Congressional map (for now); the GOP Attorney General candidate in AR caught committing voter fraud and, a lot of unusually good (and very welcome!) news in our latest Green News Report!

Buckle up, and enjoy! (And please consider donating below to our efforts! Your help is very much needed right now!)

Download MP3 or listen online below...

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A new 206-page report from by the non-partisan Government Accountability Office [PDF] finds that Republican-enacted polling place Photo ID restriction laws in states such as Kansas and Tennessee resulted in lowered voter turnout among African-Americans as well as younger and recently-registered voters.

The study will likely serve as yet more important evidence to rebut the disingenuous, cherry-picked claims by Republicans over the years that Photo ID voting restrictions do not affect minority participation.

As The Hill reports today...

The report, according to Leahy's full statement, "also found scant evidence of voter fraud that the new laws that ostensibly are designed to discourage."

I'm on a number of deadlines today, so haven't gotten to peruse the actual report yet, but let me note a quick point or two, based on The Hill's reporting on the GAO study, which was requested by Democratic Senators Leahy (VT), Durbin (IL), Schumer (NY), Nelson (FL) and independent Sanders (VT), all of whom are co-sponsoring legislation to fix the part of the Voting Rights Act that the U.S. Supreme Court gutted last year in its notorious 5-4 decision...

Let me say this up front, so you don't miss it this time: No, a Photo ID is not required to board an airplane. Period.

Last week, the ACLU filed an emergency appeal to the U.S. Supreme Court in hopes of having the 7th Circuit Court of Appeal's ruling --- which overturned a lower court's injunction on Wisconsin's new Photo ID voting restriction --- stayed in advance of next month's election.

Today (Monday) a rather remarkable new opinion was issued by the 7th Circuit which seems designed to serve as a last-minute assist to the Republican defendants in Wisconsin in their response to the ACLU appeal, as Justice Elena Kagan has required the state's response no later than 5pm on Tuesday. The ruling is littered with blatant falsehoods.

To recap very briefly, how we got to this point, and the astonishing claims in the 7th Circuit's opinion today: the GOP law requiring very specific types of state-issued Photo IDs for voting in Wisconsin was struck down earlier this year after it was found, by U.S. District Court Judge Lynn Adelman, to be both a violation of the U.S. Constitution and the federal Voting Rights Act. His thorough, 70-page ruling [PDF] found that some 300,000 legally registered voters in Wisconsin (nearly 10% of them) lacked the specific type of Photo ID that would now be needed vote under the new restriction. Adelman also determined that the law amounts to a "unique burden [which] disproportionately impacts Black and Latino voters" (who just happen to lean towards Democratic candidates), and that the new restriction on voting would "prevent more legitimate votes from being cast than fraudulent votes."

In mid-September, on appeal, a panel of three Republican-appointed judges on the 7th Circuit tossed out Adelman's permanent injunction with little comment. Amidst ensuing "electoral chaos", as election officials and voters in the state scrambled to make sense of the stunning last minute change to the law, just weeks before the mid-term election, the ACLU appealed for a rehearing before the full 7th Circuit. That hearing resulted in a deadlocked 5 to 5 vote by the judges (one seat on the court has been vacant since 2010), which meant that the partisan 3-judge panel's ruling, restoring the Photo ID restriction after it had been struck down by the lower court, now remains in place.

That brings us to the ACLU's emergency appeal to SCOTUS last week, and Monday's remarkable new opinion issued by the 7th Circuit at the last minute, clearly made to justify the original opinion issued last week which seems to have otherwise landed with a thud. (The court had attempted to compare a "need" to restore new voting restrictions at the last minute to the U.S. Supreme Court's stay placed on the overturning of same-sex marriage bans in several states last year. The dissenters called the court's legal theories "brazen", "shocking" and on its central thesis comparing the WI law to a 2008 landmark case in Indiana, "dead wrong.")

University of California-Irvine's election law professor Rick Hasen described the new opinion issued on Monday as "a nice assist from the 7th Circuit panel to the state of Wisconsin," just in time for the SCOTUS deadline.

In a more detailed follow-up item, however, Hasen, who is usually quite conservative when it comes to concerns about Photo ID voting restrictions, went somewhat ballistic. He uncharacteristically upbraided the 7th Circuit's newly issued ruling --- apparently written by the very rightwing Federalist Society member Judge Frank Easterbrook --- as "Horrendous".

"I rarely just rant in my blog posts," he tweeted, along with a link to his follow-up, "But Judge Easterbrook caused me to blow a gasket."

I know the feeling. I felt the exact same way while reading the new opinion today, particularly the part in which the court offers blatant --- and long-ago debunked --- falsehoods about where and when they claim Photo ID to be "essential", such as when boarding an airplane.

Trouble is, that is a blatant lie. A Photo ID is absolutely not required to board an airplane, no matter how many times proponents of these sorts of laws repeat the false claim. And it's simply remarkable that such a lie (and others akin to it) would be included in a last-minute opinion meant to justify an Appellate Court ruling that is about to be heard by the U.S. Supreme Court...

Well, that was cowardly. But I suppose it's better than hearing the cases and churning out another twisted, activist justification for discrimination.

Rather than hear appeals from cases in Utah, Indiana, Oklahoma, Virginia and Wisconsin where marriage equality bans were struck down, the U.S. Supreme Court shocked court watchers today by deciding to avoid the issue of marriage equality as a Constitutional right entirely for the time being. Effectively, that means the lower-court rulings stand in each of those states, so freedom, liberty and the conservative Constitutional value of equal justice for all wins the day in each of them.

Evan Wolfson, founder and president of Freedom to Marry, a national organization dedicated to the fight for equality in all fifty states, said after today's Supreme Court punt: "This decision by the Court is a huge step forward --- and a clear green light for full-speed ahead --- but it needlessly postpones the national resolution that together we've been working so hard for. Freedom to Marry is committed to finishing the job."

Couples in six other states where the Circuit Court of Appeals' decisions will likely also apply include Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming.

With the addition of those 11 states, the list of states where marriage equality for all will soon be recognized will jump to 30, continuing to beg the question of which state will disgrace the Union as the very last one to allow equality, in this measure, for all of its citizens.

On Thursday morning, the ACLU filed an Emergency Application to Vacate [PDF] with the U.S. Supreme Court to vacate a Sept. 14, 2014 stay of a U.S. District Court ruling that had, before the stay, permanently blocked enforcement of a Republican-enacted, Wisconsin photo ID voting law.

The civil rights organization argues that the emergency ruling is needed to prevent mass disenfranchisement and electoral chaos during the upcoming Nov. 4 election. It asks that the Court "leave that injunction in force pending the Seventh Circuit's issuance of a decision on the merits."

As the District Court judge had found, before his decision was overturned by a partisan ruling at the Appellate Court level, Wisconsin's attempted restriction on the voting rights of legally registered voters poses a real and present danger that some 10% of the Badger State's duly registered electorate will likely be prevented from voting in the rapidly approaching November 4 election.

The District Court's injunction had been stayed as a result of a deadlocked court, in which five bipartisan members of the ten-judge U.S. 7th Circuit Court of Appeal described in a Sept. 29 Opinion [PDF] as a "brazen" and "shocking" disregard of both precedent and the right of the minority to vote. That "shocking" position had been advanced by the attorneys representing Republican Gov. Scott Walker and first accepted by an all-GOP, three-judge panel that had issued an extraordinary, 11th hour decision to vacate the lower court's injunction.

The case now poses an enormous test for at least two key Justices on the high court. Will Chief Justice John Roberts and Justice Anthony Kennedy adhere to the very principles they signed on to when they joined the plurality opinion authored by former Justice John Paul Stevens in the landmark 2008 SCOTUS decision in Crawford v. Marion County Board of Elections? That case upheld Indiana's Photo ID law against a "facial" challenge solely because, in the words of the plurality opinion, there was no evidence before the court at the time to prove anyone would be disenfranchised or that their right to vote would be unduly burdened by the law.

In signing onto Steven's lead opinion, both Roberts and Kennedy agreed that election laws, including photo ID voting restrictions, are subject to the Anderson/Burdick test. That test mandates that courts, on a case-by-case basis, measure a law's potential damage to voters' right to vote against the specific claims made by the state as to why such additional burdens and restrictions are necessary. Given that the state has offered no legitimate reason for potentially disenfranchising as much as 10% of Wisconsin's lawfully registered voters, Roberts and Kennedy cannot refuse to lift the stay without a total abandonment of principle...

A bit of encouraging voting news came out of North Carolina on Wednesday, believe it or not. We'll see how long it lasts.

By way of a 2-1 decision and a lengthy Opinion [PDF] on Wednesday, a three-judge panel on the U.S. 4th Circuit Court of Appeal ordered U.S. District Court Judge Thomas J. Schroeder, a George W. Bush appointee, to issue a preliminary injunction to prevent the State of North Carolina from implementing two provisions of a sweeping election "reform" bill.

The court sharply criticized the lower court's ruling that previously allowed the law to move forward as is, despite the likelihood of a disproportionate effect on minority voters in the Tar Heel State.

The BRAD BLOG described the bill in question, when it was passed by the GOP legislature last year, as "the nation's worst voter suppression law since the Jim Crow era." The law includes virtually every restriction on voting --- shortening early voting hours, ending same-day registration, implementation of disenfranchising polling place Photo ID restrictions and much more --- ever attempted by Republicans across the country over the past decade. The legislation was, quite literally, rammed through the state's Republican-controlled legislature, with no period for public comment or debate, just one day after a sharply-divided U.S. Supreme Court gutted the heart of the Voting Rights Act in the Summer of 2013.

The majority opinion at the 4th Circuit was highly critical of Schroeder's analysis in the case. They described it as "flawed," containing "grave errors" and "plainly wrong" on the law. The court found that the District Court judge abused his discretion in refusing to issue a preliminary injunction that would prevent implementation of two provisions of the state's H.B. 589.

In their decision, the three-judge panel's majority also offered significant interpretations of Section 2 of the Voting Rights Act (VRA), that, if ultimately upheld, could minimize the damage wrought by the gutting of Section 5 by the U.S. Supreme Court last year...

[Now UPDATED at the bottom with "Geraint's" response and our response to it! Enjoy!]

Last night, some silly Rightwing dude calling himself "Geraint Roberts" on Facebook, posted a comment on an item on BRAD BLOG's Facebook page, in which he purported to ask "Questions for American Leftists on the subject of voter ID".

As is our usual, courteous custom (when time allows), we quickly answered his questions.

As most of his "questions" are the same talking points we've seen of late, used by tons of either duped or disingenuous Rightwingers in hopes of justifying GOP voter suppression with polling place Photo ID restrictions, you may find both his questions and our brief answers to them, as posted in full below, interesting and/or helpful...

Bad news for voters in the Buckeye State. Good news for partisan Republicans who prefer to win elections by making it more difficult for voters to vote.

In a 5 to 4 decision, the Rightwingers on the U.S. Supreme Court have now overturned the 6th Circuit's earlier ruling that had blocked Ohio Republicans' attempt to limit early voting by shortening the Early Voting period by one week, eliminating the week where voters could both register and vote on the same day, and by doing away with Sunday voting before the election...

From UC Irvine election law professor Rick Hasen...

See Hasen's coverage for his analysis of what happened here, and why he believes it was a mistake to even challenge the OH Republicans' new restrictions on early voting. Please note: We don't necessarily agree or disagree with his analysis, at this time. But you can read it and decide for yourself.

Our most recent coverage of the 6th Circuit Court of Appeal's decision to uphold the lower District Court decision blocking the GOP voting restrictions is here.

The GOP in Ohio has been attempting to shorten and otherwise restrict Early Voting in the state ever since reforms put in place in 2005 --- in response to the embarrassingly disastrous 2004 Presidential Election there --- worked well enough that most of the problems voter had voting had disappeared by 2008. As we have documented over the years, every time they tried to limit those successful reforms, the courts had blocked them from doing so. They did so again this year, until today's 5 to 4 ruling by the Supremes.

It should also be noted that it is, arguably, because John Kerry failed to keep his promise and fight to make sure every vote was counted in Ohio's contested 2004 election, that the U.S. Supreme Court has now gone so hard to the right, with the addition of Justices Roberts and Alito during George W. Bush's second term.

With today's SCOTUS ruling, and the bad news from the partisans on the 7th Circuit concerning WI Republicans' draconian Photo ID voting restrictions, as our legal analyst Ernie Canning detailed this morning, it seems many of this year's most important elections may be won, or lost, in the courts --- before Election Day even gets here.

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