Unless either the U.S. 5th Circuit Court of Appeal or Supreme Court intervenes, more than 608,000 lawfully registered Texans, who were illegally disenfranchised during three successive elections (the General Elections in 2014 and 2015 and this year's Presidential Primary), are likely to again be barred from casting a vote in the November 2016 general election.
A disproportionate number of those who have been and may be deprived of a right that is, at least in part, supposedly guaranteed by the U.S. Constitution and the Voting Rights Act of 1965 (VRA) are impoverished African-Americans and Hispanics.
The source of disenfranchisement is a Republican-sponsored polling place Photo ID law which state Democrats had spent years, and no small amount of effort (even life-endangering effort) attempting to oppose.
Republicans insist that such laws are necessary to prevent voter fraud. But, as detailed by the 2011 sworn Congressional testimony of Justin Levitt (then a Loyola Law Professor, now an Assistant U.S. Attorney), cases of in-person voter impersonation fraud --- the only type of voter fraud that can be prevented by polling place Photo ID restrictions --- are extraordinarily rare: nine possible cases out of more than 400 million votes cast. "Americans are struck and killed by lightening more often," Levitt observed.
Later, in a 2014 update to his comprehensive investigation of all existing reports "voter fraud" in the U.S. over the 14 preceding years, Levitt announced evidence of just 31 cases of the type of voter fraud that might have been deterred by Photo ID restrictions out of more than 1 billion votes cast since the year 2000.
Claims of this type of "voter fraud," according to the renowned, Reagan-appointed 7th Circuit jurist, Richard Posner, are but "a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government"...
Posner's comments came in a federal Wisconsin case where a deeply flawed and extraordinarily partisan panel decision resulted in electoral chaos and the potential disenfranchisement of some 300,000 legally-registered Wisconsin voters during last week's Presidential Primary elections in the Badger State. That flawed decision, which upheld Wisconsin's Photo ID law as lawful, despite the trial court's very clear findings to the contrary, was allowed to stand because the full 7th Circuit Court was evenly divided (5-5) on the matter.
In Texas, however, a Republican state Attorney General has been permitted to enforce a Photo ID statute (SB-14) even after three federal courts unanimously determined that, at a minimum, the statute unlawfully violates rights guaranteed by the VRA. In Texas, mass disenfranchisement has been the product of an epic failure by our courts to uphold constitutional and statutory rights that every member of our judiciary has sworn to uphold and protect.
Unless the U.S. Supreme Court acts quickly, it could happen once again during the 2016 Presidential General election...
For nearly 50 years, from 1965 until 2013, jurisdictions with past histories of racially discriminatory voting practices were required to obtain pre-clearance from the U.S. Department of Justice (DoJ) or from a three-judge District Court panel in D.C., before implementing changes to their voting laws, pursuant to Section 5 of the Voting Rights Act (VRA). To obtain pre-clearance, those jurisdictions bore the burden of proving that the changes in election law would not have a disparate impact upon racial or language minorities. This contrasted with the nationwide application of Section 2 of the Act, which placed the burden of proving discriminatory intent or effect on those challenging implementation of new election regulations.
In 2012, after the DoJ had previously done the same, a unanimous three-judge U.S. District Court denied pre-clearance of the Republican-sponsored Photo ID law. The "undisputed record evidence," according to the three-judge panel, demonstrated the statute would have a disparate impact upon racial minorities and the poor. Among the many unreasonable burdens, according to the unanimous court, impoverished Texans, who often lacked a personal means of transportation, would have to travel between 200 and 250-miles roundtrip to the nearest Department of Public Safety (DPS) to obtain the requisite, state-approved Photo ID. Often that trip would require missing work (loss of salary) given the limited hours during which DPS offices were open.
Then came the controversial 5-4 Supreme Court ruling in Shelby County v Holder (2013). The Court's then right-wing majority gutted the ability to use Section 5. Although the decision eliminated the pre-clearance requirement, Chief Justice John Roberts assured us that the Shelby County "decision in no way affects the permanent, nationwide ban on racial discrimination found in [Section] 2 [of the VRA]."
Since then, our courts have failed to adhere to that promise.
Specifically, in 2014 a U.S. District Court judge struck down that same Texas Photo ID statute. In a 147-page opinion [PDF], the court explained that GOP-enacted polling place Photo ID restrictions (1) were adopted with a discriminatory purpose in violation of Section 2 of the VRA and the 14th and 15th Amendments to the U.S. Constitution, (2) resulted in racial discrimination in violation of Section 2, (3) created an unconstitutional burden on the right to vote, and (4) amounted to an unconstitutional poll tax.
Without challenging the District Court's factual findings, on October 14, 2014 the U.S. 5th Circuit Court of Appeal issued an emergency stay. The appellate court applied what has become known as the Purcell principle --- "the idea," according to U.C. Irvine Law Professor Rick Hasen, "that courts should not issue orders which change election rules in the period just before the election." Over the vigorous dissent of Justices Ginsberg, Sotomayor and Kagan, the Supreme Court upheld the stay. More than 608,000 lawfully registered Texans would thus be deprived of their right to cast a vote in the 2014 mid-term election by reason of a discriminatory and unlawful Photo ID statute.
On August 5, 2015, a unanimous three-judge 5th Circuit panel upheld the District Court's finding that the Texas Photo ID law violated Section 2 in terms of discriminatory effect but reversed for further consideration of the District Court's finding of discriminatory intent. Despite the Section 2 violation, the panel failed to lift the emergency stay of the District Court's injunction.
In covering the issue last September, The BRAD BLOG reported on the intervening efforts by both the DoJ and other plaintiffs to have the matter promptly returned to the U.S. District Court in order to prevent further unlawful disenfranchisement. This occurred at the same time that the defendant state of Texas, via a petition for rehearing and other motions, was attempting to run out the clock on the rapidly approaching November 5, 2015 general election.
We observed at the time:
Yet, nothing transpired at the 5th Circuit during the ensuing six months. The court failed to either take action on the state's petition for rehearing or on the plaintiffs' requests for interim relief. As a result, as many as 608,000 lawfully registered Texas were likely denied the right to cast a ballot during the November 2015 General Election and, once again, during this year's March 2016 Presidential Primary in the Lone Star State.
Finally, on March 9, 2016 --- just days after the death of U.S. Supreme Court Antonin Scalia created a likely 4 to 4 "tie" on this contentious issue at the high court --- the full, very conservative 5th Circuit, suddenly granted the state's petition for a rehearing en banc. On March 18, the plaintiffs filed an emergency 5th Circuit motion. They asked the court to vacate the stay so as to "avoid a scenario when another election is held under SB 14 simply because Texas claims it does not have time to conduct elections lawfully."
This time the response from the 5th Circuit was swift. Just hours after the emergency motion was filed, the court ordered that the motion would be "carried with the case." This suggests that no relief will be granted until a final ruling on the merits. The 5th Circuit order did not offer any reasons why the stay should remain in place --- this despite the fact that the stay was initially issued only an emergency basis solely because of the Purcell principle. Thus, per this ruling, Texas is authorized to continue enforcing a statute that, per the unanimous conclusions of seven judges (a 3-judge U.S. District Court panel in 2012, a U.S. District Court judge in 2014 and a three-judge 5th Circuit panel in 2015) violates Section 2 of the Voting Rights Act.
On March 25, 2016 the plaintiffs filed an Application to Vacate Fifth Circuit Stay with the U.S. Supreme Court.
Unless the stay is promptly lifted by either the 5th Circuit or the Supreme Court, more than 608,000 lawfully registered Texans --- and more than 1 million eligible voters in total --- will once again be disenfranchised by a Photo ID law that, according to three successive court rulings, violates Section 2 of the VRA. Such is the sad state of the world's oldest democracy in 2016.
Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing