Appellate judges do not challenge lower court findings, but worry about 'confusion', SCOTUS precedent on late voting law changes
UPDATE: Plaintiffs file Emergency Application to Vacate the Appellate Court ruling with SCOTUS...
By Brad Friedman on 10/14/2014, 7:21pm PT  

[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...

On Tuesday, the 5th Circuit Court of Appeals panel (two Republican appointees and one Democratic appointee) issued their order to stay the lower court's ruling, effectively putting the law back into effect for the November election. Early voting in TX begins on October 20th.

"Essentially, all the marbles of this 5th Circuit order come down to 'it's too close to the election to stop the law from going into effect, because pollworkers will be confused," explains election law expert Justin Levitt of the NYU Brennan Center for Justice.

"It's important to recognize that the court of appeals did not disturb the district court's findings that some individuals do not have and will not likely be able to timely get the documents in question," he adds. The issue is largely, for now, that, given the last minute ruling by the District Court striking down the law, pollworkers may be confused about what the voting requirements actually now are. Some may ask voters for the new restrictive set of Photo ID under the new laws, "preventing some individuals without the narrow set of ID from voting anything other than a provisional ballot," says Levitt, while others may not.

Yes, it's actually as absurd as it sounds.

"So instead, the court makes it legal for all pollworkers to demand the more restricted set (preventing all individuals without the right ID from voting a valid ballot at all)," he continued. "Or, translated even further: if we let the district court's order stand, some people without the right ID will be able to vote, and some won't. And if we stay the district court, all people without the right ID won't be able to vote. And in elections, 'all' is better than 'some.'"

Levitt derides the ruling as "foolish consistency". "It's one thing to stop last-minute changes when the impact is less dire for those affected, another to stop last-minute changes when the change is new and unfamiliar, and still another to stop last-minute changes when the reason for the change isn't clear."

The "reason" offered by the 5th Circuit is largely more than "The Supreme Court has repeatedly instructed courts to carefully consider the importance of preserving the status quo on the eve an election," according to the two Republican judges who comprised the majority. The Democratic appointee concurred with the majority, though more narrowly, citing only the SCOTUS precedent for avoiding last minute changes.

Texas 'status quo' = discrimination and disenfranchisement

In this case, however, the "status quo" would be the requirement by Texas, issued just hours after the U.S. Supreme Court gutted the Voting Rights Act in 2013, that voters present one of only a few very specific types of state-issued Photo IDs in order to vote at the polling place, or lose their right to do so.

They contend its necessary in order to combat "voter fraud", though as the state admitted during the trial, there are only two known cases of polling place impersonation in Texas over the last 15 years, out of some 2 million ballots cast during the same period.

The TX Photo ID law had been struck down, time and again after being found discriminatory by both the federal courts and the U.S. Dept. of Justice under Section 5 of the Voting Rights Act. Once SCOTUS eviscerated the VRA, so that Section 5 no longer applied to any jurisdictions, like TX, with a history of racial discrimination at the polls, the state simply re-enacted the very same law which was --- surprise! --- found again by the District Court to be purposefully discriminatory, unconstitutional and a violation of the VRA (Section 2) last week.

The majority at the 5th Circuit admits the law may be discriminatory --- "The individual voter plaintiffs may be harmed by the issuance of this stay. But we find that this harm does not outweigh" other factors, including the difficulty "for the State to adequately train its 25,000 polling workers at 8,000 polling places about the injunction's new requirements in time for the start of early voting on October 20 or even election day on November 4."

The concurring opinion by the Obama appointee at the 5th Circuit felt similarly handicapped by SCOTUS precedent --- known as "the Purcell principle" --- barring last minute changes to election laws.

"The district court issued a thorough order finding that the Texas voter ID law is discriminatory," the concurrence reads. "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 the very recent cases in OH, NC, and WI, the Supreme Court was consistent, largely, in that they blocked last minute changes to voting laws in each of the states. In Ohio, where the 6th Circuit Court of Appeals ordered the restoration of a number of early voting days that had been truncated by Republicans (including those days in which voters could both register and vote on the same day), SCOTUS blocked the restoration of those days. In North Carolina, where the 4th Circuit had restored same-day registration and the counting of ballots cast at the wrong precinct, as previously barred by Republicans, SCOTUS restored those voter suppression tactics as well.

In Wisconsin, however, where the 7th Circuit very recently overturned the District Court that struck down Republican Photo ID voting restrictions there, finding them unconstitutional last April, SCOTUS vacated the 7th Circuit's recent order, allowing voters to vote in the Badger State without having to present a Photo ID this year.

In each of those states, the case could be made that the High Court was blocking last minute changes to voting laws, no matter if the result was voter suppression (in OH and NC) or not (in WI). In both OH and NC, while the Republican voting restrictions were likely to make it harder to vote, they did not necessary make it impossible. In WI, the GOP Photo ID restriction might have made it impossible for some 300,000 legally registered voters, largely minorities, students and the poor (all of whom tend to vote for Democrats) to cast a vote at all this year.

Which brings us back to TX, where the District Court judge determined that some 600,000 legally registered voters, who are disproportionately minorities, might not be able to vote this year under the discriminatory Republican voting restrictions.

If SCOTUS now upholds the 5th Circuit claim that it's too close to the election to change the laws --- and thus keeps the appellate court stay on the lower court's findings this year --- those TX voters will most likely be disenfranchised this year. So, how to balance the right to vote against the need to avoid (what the court sees) as the potential for confusion at the polls?

Texas case is different

"There are two potential differences [in the TX case], which could suggest applying the Purcell principle differently," suggests Rick Hasen, election law professor at University of California-Irvine. "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."

He describes the 5th Circuit majority's reasons for using the "Purcell principle" in this case as "extremely 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)," Hasen writes, before going on to predict that the Supreme Court's rightwingers will vote in favor of disenfranchisement 5 to 4.

The BRAD BLOG's legal analyst Ernest A. Canning sees an additional problem with applying "Purcell" here. "It allows a state to engage in egregious and intentional discrimination --- and get away with it for at least one election --- so long as the state can delay a decision until the eve of an election."

"If the court later upholds the District Court injunction on photo ID, what's to stop Texas Republicans from coming up with some other form of discrimination, then dragging their feet in litigation until the next election?," says Canning.

He goes on to add: "The Purcell argument underscores why the gutting of Section 5 of the Voting Rights Act was a huge mistake. The remedies under Section 2 are inadequate when the state can prevail in disenfranchising people based on race for at least one election."

"The Supreme Court must stand up for voters and block this harsh photo ID requirement," Myrna Pérez, of the Brennan Center's Democracy Program told Zachary Roth at MSNBC. "This discriminatory law will make it harder for hundreds of thousands of voters, many of whom are minorities, to make their voices heard this November."

Roth adds: "Attorney General Greg Abbott, whose office defended the law, called the ruling a 'victory.' As he runs for Texas governor, Abbott, a Republican, has put his support for the law front and center."

Well, imagine that.

For more on the degree of purposeful discrimination found by the U.S. District Court judge in the Texas GOP's polling place Photo ID law, please see our previous coverage here...

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UPDATE 10/15/2014: Plaintiffs file a 203-page Emergency Application to Vacate [PDF] the 5th Circuit's stay at the U.S. Supreme Court. It includes this:

Imagine that a state passed a law, six months before an election, stating that 'Negroes cannot vote,'" they write. "This law-clearly intentionally discriminatory based on language and effect alone-is enjoined on that basis by a District Court two weeks before an election. 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. [The Texas ID law], as the District Court found, is simply a more creative method of intentionally discriminating based on race than the above hypothetical.

Justice Scalia, who oversees the 5th Circuit, has given Texas until 5pm ET on Thursday to respond, according to Tim Eaton of the Austin American-Statesman.

If Scalia does as the other Justices have done so far this year when responding to such an emergency appeal, he will pass it on to the full Court for a vote, rather than deciding the issue for himself (as, we believe, he is actually entitled to do). The former would be preferred, of course, given that Scalia has voted against voting rights in every such case that has come before the court so far this year.

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UPDATE 10/18/2014: Despite findings that the TX Photo ID law is deliberately discriminatory, and is likely to disenfranchise some 600,000 legally registered state voters, the U.S. Supreme Court will allow its use in this year's midterm elections anyway. Full details now here...

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