This is shameful. The U.S. Supreme Court (usually such a pro-law and order institution) has ruled that the risk of “voter confusion”justifies breaking the law.
Attorneys representing the State of Texas on the picture I.D. law have a tough job, a fact that I should probably emphasize from time to time – an attorney isn’t the client, but just the conduit for the client’s assertions. Heck, back in the day, I did legal work defending the denial of insurance, retirement and disability benefits in circumstances that would corrode your soul, so I do have empathy for those toiling in the Office of the Devil’s Advocate.
So maybe I was a little mean about the Texas Solicitor-General’s 74-page bolus of overripe stew in defense of keeping the voter I.D. law in place for the November 2014 election. A fair riposte to my skewering of that brief would be to ask, “So, smart guy. How would YOU defend the patently indefensible voter I.D. law?”
- First, no matter what argument I made, I wouldn’t take 74 pages to lay it out. That’s just embarrassing and sloppy. C’mon guys, it’s called a “brief” for a reason.
- Second, in general, I wouldn’t bother to defend the voter I.D. law. at all, because that’s not the issue before the court. I wouldn’t attack the factual findings of the trial court; I wouldn’t bring up any of the patently offensive (and sometimes factually false) arguments in favor of the voter I.D. law. The issue before the Supreme Court isn’t “Was somebody mean to the widdle-bitty State of Texas? Did that meany-weeny district court go and issue a mean, nasty decision against Texas?”
- The issue before the Court is, “Did the 5th Circuit Err in Suspending the Effect of the Corpus Christi Trial Court’s Injunction Against the Use of Texas Picture I.D. Laws in the November 2014 Election? It was provocative, dangerous, and hot-headed for the State to rave on and on about how bad the trial court’s decision was. Instead, I would have recommended just saying something like this:
- “After the trial court made its findings of fact and conclusions of law, it issued a clarifying order at the request of the State. In that order, the judge added an immediate injunction against the use of the existing I.D. law. In so ruling, the judge failed to describe any considered analysis of the balanced costs and benefits to the parties resulting from the issuance of such an injunction.”
- “If briefing had been invited by the trial court relating to the costs of imposing the injunction, the State of Texas would have presented evidence that the suspension of the voter I.D. law at this remove from the start of the election would cost the State an estimated $5 million in opportunity costs, wages and other labor costs, and materials. Additionally, local costs to each of the county election offices in Texas would amount to an aggregate amount of between $4 and $12 million, resulting in an increase of roughly $7 in the per-vote expense of conducting the election (assuming a turn out of roughly 20% of the total number of registered voters (2.4 million ballots), and an increased administrative expense of up to $17 million aggregated across all government jurisdictions conducting elections in November).”
- “In failing to account for the administrative costs, the trial court’s order failed to engage in the sort of factual analysis required when making judicial alterations in the manner in which an election is conducted. Purcell v. Gonzalez, … [cite omitted].”
- “Therefore, the State moves that the emergency stay be upheld, and that the substantive issues relating to the administrative burdens imposed by the injunction should be remanded to the trial court for further proceedings not earlier than a date on or after the conclusion of the November 6, 2014 general election.”
See? Easy … inoffensive … and brief. Rather than proudly defending the indefensible (and by embracing over-the-top rhetoric, echoing the nutty tone of the state’s worst racists and lunatics), I would focus on a narrow procedural issue.
Frankly, I think even this issue is a loser – the plaintiffs can simply say, “Okay, the administrative burden increased. But the harm caused by the enforcement of the picture i.d. requirements (i.e., the State’s ongoing violation of the Fourteenth Amendment) is so overwhelming, and of such grave consequence to the integrity of the election, that the additional expense associated with the injunction pales to insignificance against that harm.”
If the voter I.D. law is enforced due to the emergency stay, every losing candidate in the November 2014 election in Texas will have potential grounds for filing election contests immediately afterwards, simply by arguing that within the context of each of those elections, it will be factually impossible to determine whether the outcome of those elections reflects the will of the voters who would have voted but for the continued enforcement of the illegal voter i.d. requirement.
You want to talk about administrative expense – there’s an administrative expense. Consider the disruption, as every single race (and especially every close race) becomes subject to an election contest in state district court, with quite good chances of success for those suits that are competently argued.
That’s every school district board race, every water district bond race, every county, district, state, and federal race.
Consider a hypothetical candidate running for the office of Mayor in a small town in the November 2014 election.
When the dust settled after the election, Candidate Loser had 110 votes, and Candidate Winner had 127 votes.
Now assume that the town’s demographics are (for the sake of making the math easier) roughly similar to the state demographics (i.e., about 12% African-American, about 40% Hispanic, and about 48% white). Assume that the town has 1,000 residents of voting age, and of those residents, 120 are African-American, and 400 are Latino or Hispanic, for a total of 520 members of a protected class of minority voters, or at least potential voters.
Assume that the total number of registered voters in the town is 800. Of those voters who are registered to vote, Loser determine that 34 (9% of 384 of the voters) are white residents who lack adequate I.D., 24 (25% of 96 of the voters) are African-American residents without sufficient I.D., and 51 (16% of 320 of the voters) are Hispanic residents without sufficient I.D. (The percentages reflect the statistical tendencies not to have sufficient I.D. Notice that there are statistically significant differences among particular groups when tested for adequate I.D., and these differences are based on race).
Let’s assume that if those residents had I.D., they would have voted in the same proportion as the qualified voters with sufficient I.D.s. Turnout was 237 out of 800 registered voters, or 29.625%. So that’s ten missing white votes (roughly 30 percent of 34), 8 missing black votes (roughly 30 percent of 24), and 15 missing Hispanic votes (roughly 30 percent of 51).
Now, the margin by which Loser lost was 17 votes, and there are 33 people who would have voted, but for their lack of adequate I.D. Maybe not all of these voters would have voted for Candidate Loser. But suppose Candidate Loser was disproportionately favored by minority voters – through interviews and exit polling, Loser has determined that black and Hispanic voters were significantly more likely to favor that side of the ticket. Of the 33 “gave-up, no reason to try to vote” voters, 23 were minority voters. But Loser only needs to find 18 more votes.
Assuming Loser mounts a competent election contest, Loser can simply ask to be declared the winner. Or, if there’s no money and time to subpoena I.D.-less registered voters, Loser can at least raise enough doubt about the integrity of the election to force a new election. Voila!
Meanwhile, the disenfranchised voters in Smalltown all have a civil cause of action against the State of Texas for violating their voting rights.
Now, pull upward and away from Smalltown, to take in a larger view. Observe the glimmering street lights and lighted houses across the state – the clumps of population strung like beads along the roads. All those towns … (around 1,100, although admittedly not all may be having elections). All those school districts (also roughly 1,100, most of them forced by recent changes in the law to conduct their elections in November of even-numbered years). All those water districts (1,600). All those hospital districts, and library districts, and road districts, and airport authorities, and special law districts (who knows the numbers for sure? Let’s say 350 to be conservative). All those counties (254), with their multitudes of offices up for election (two commissioner seats, county judge, various district court judgeships, etc). All those state legislative districts (181, of which roughly 168 are up for election). All those U.S. House of Representatives seats (36). All of those statewide offices (Governor, Lieutenant Governor, Attorney General, various seats on the Texas Supreme Court and Court of Criminal Appeals, Land Commissioner, et cetera, ad nauseum).
All those elections. All those thousands of elections.
Now, put yourself in the position of the Texas Secretary of State. Can you say with confidence that none of those elections are going to be squeakers? Are you sure that the margin of victory for all the winning candidates in those many, many elections are going to be so large that no loser could possibly argue that they would have won, but for the loss of the disenfranchised vote.
Because what the 5th Circuit has stupidly done is open the door to a tidal wave of election-related litigation.
In a typical election year, there will always be a few local election contests – maybe a school bond election here, a city council election there. Maybe one or two high-profile contests involving multi-county races. The number of suits is limited by the difficulty of accessing the courts, and the difficulty (usually) of being able to show causation – that a particular screw-up in the conduct of the election led to the wrong outcome.
But all bets are off for 2014, baby. Because if there are voters out there about whom it can be fairly said that they would have voted but for the imposition of the voter I.D. requirements, then let the flood gates of election litigation open wide, and swallow incalculable sums and staggering amounts of time and energy, affecting the state courts, local and state government, and every voter. Imagine waking up on November 5th to newspaper headlines announcing that all of Texas lies under a thick pall of uncertainty, disjunctive lack of continuity in office, and overwhelming distrust of the accuracy of the election outcome.
It will be like Christmas, Thanksgiving, and the Fourth of July for any lawyer with an interest in election-law litigation.
As you likely know, the U.S. Supreme Court had asked the State of Texas to file a response brief in answer to the Department of Justice’s appeal in Veasey v. Perry by no later than 4:00 p.m. today (Central Time). (To recap the action so far – the trial court issued extensive findings of fact and determined that the State’s photo I.D. law was unconstitutional, ordering the immediate suspension of the illegal statute. The State applied to the 5th Circuit for an emergency stay so that it could continue
to disenfranchise minority voters … violate the Fourteenth Amendment, … er … avoid voter confusion for the upcoming election. The 5th Circuit, agreed that it was much more important to avoid voter confusion than to actually protect voters, and ruled that the State was indeed entitled to continue breaking the law. The Department of Justice and other plaintiffs in the voter I.D. suit then appealed the 5th Circuit’s emergency stay of the trial court decision to the U.S. Supreme Court).
The State did indeed submit its argument by the deadline; here is a version omitting the appendix material.
In reviewing the brief, I’ve found one odd factual error that is likely to go missed by readers who are not “in the biz” of elections.
Contrary to the assertion on page 12 of the brief (page 15 in the .pdf file pagination), the State’s 254 counties don’t order “election kits” from the Secretary of State, – they get their election forms from private vendors, or they print them out themselves. The assertion is made in order to bolster the argument that the trial court’s order created “chaos” (and yes, the brief does actually venture into hyperbole on this point) because the poor State of Texas simply doesn’t know what to do.
Adopting the “kitchen sink” approach to appellate briefing, the State solicitor has filed a rambling 74-page brief, which I will endeavor to summarize.
And let me warn you right now. I am being mean, and flip, and sarcastic. But the brief filed by the State of Texas is embarrassing – it deserves every bit of the scorn I’m about to heap on it. And if you think that I’m misrepresenting the State’s argument, well, then, feel free to slog through the brief and do your own summary. Because while I’m being flip, and sarcastic, and mean, I’m also describing more or less exactly what the brief argues.
So heap your outrage upon me. I have read as much of the brief as I can stomach, and here’s what I was able to digest. And I’ll warn you – my summary may be long, but it pales in comparison to the numbing repetition of the actual brief:
1. We Totally Didn’t Expect the Trial Court to Issue A Ruling So Soon
Nobody told us that we were about to get dinged. Did I mention that the election is just around the corner? As the Supreme Court made clear with respect to both Wisconsin and North Carolina, by citing the principles expressed in Purcell v. Gonzalez, 541 U.S. 1, at 4-5 (2006), courts really shouldn’t take actions that affect the conduct of an election just around the corner, because it might confuse the voters. And that theory applies here, because we were sucker-punched. It’s like the trial court judge had it in for us.
2. It’s the Plaintiffs’ Fault that the Timing is So Bad
The plaintiffs could have given us a heads-up that they didn’t want us to apply the voter I.D. requirements for the November 2014 election, but they didn’t say anything! They waited until our guard was down, and then, boom! They totally pressed for some kind of injunction. How could we have known? We barely had time to cut and paste all the arguments out of our earlier briefs. (I mean we had no warning, aside from the months of legal maneuvering, two-week trial and parade of expert witnesses all attesting to the fact that we were breaking the law. Which we totally weren’t).
3. Also, They Made Up All That Stuff About Disenfranchised Voters
Where are these 600,000 disenfranchised minorities? I’ve never seen them. The plaintiff just made them up. There aren’t any facts – this is all just preposterous. They took our badly organized, barely coherent voter registration records, and just read whatever into them. We can’t be racists if we can’t find the minorities that we supposedly discriminated against, now can we? I mean, normally it’s not the appropriate role for an appellate court to substitute new findings of fact, given that the weighing of evidence from dozens of respected academic researchers and legal scholars was the role of the trial court, but we would certainly appreciate it if you would just go ahead and agree that there aren’t actually any disenfranchised voters. Because obviously, if there were so many disenfranchised voters, why haven’t I ever seen them vote?
4. You Know Why the 5th Circuit Didn’t Need To Say That the Plaintiffs Were Unlikely To Prevail On the Merits? Because Duh, It’s Obvious That This Whole Lawsuit Is Stupid
Okay, so first of all, we’re not racists. Plus, we didn’t do anything wrong. Lots of states put up little roadblocks to voting – that’s just the nature of red tape and bureaucracy. All perfectly legal.
It’s not the height of the obstacles that matters, it’s whether it’s okay to have procedures. Well, it is okay, and all picture I.D. is, is just a procedure. Just an innocent procedure. Nothing to see here. You said it was okay for other states to have procedures. Ergo, quod erat demonstram, it is therefore proven that the State of Texas can have procedures for voting. Which is all this photo I.D. stuff is, just a procedure.
5. Statement of the Case – Here’s What Happened
Okay, so the People of Texas wanted us to impose photo I.D. requirements. Well, we aim to please, right? So we innocently enacted these photo I.D. requirements. Which, by the way, everybody loves. Did I mention that people are absolutely gaga over picture I.D.
And here’s the thing. I don’t see anybody complaining. We’ve had a couple off-year elections, and none of these minority voters showed up trying to get picture I.D.s. Why? Because everybody’s happy. That’s why. So just to make it clear, the People of Texas asked us to make a totally non-racist law, which we did. And it worked! Nobody complained. I mean, except for the plaintiffs and some other people. But the important thing is that none of those disenfranchised voters complained. Why? Because they were happy with the new law too. And, … um …
But then, incredibly, this Federal Judge issues an “opinion” (if you can call it that) that actually refers to our procedures (which, as you recall, I mentioned are innocent) as a “poll tax.” Well, that’s just insulting, choosing a loaded term like that. And probably racist. Oh right, just because we’re a State that fought to preserve human bondage and enforced laws for a century that were intended to explicitly deny the vote to blacks and Hispanics, suddenly we’re the bad guys. We can’t reform? Whatever happened to “innocent until vindicated by a more levelheaded appellate court.” Amirite?
So anyway, the trial court just hauls off and issues this order, and I mean we tried. We really tried to understand what we were supposed to do, but it’s just impossible. Did I mention this all just happened last week?
We would have been willing to sit down like adults and discuss all this through the avenue of ponderous, months-long briefing schedules, interim hearings, en banc reviews, revisions, motions for rehearings, hearings on motions for rehearings, and so on. You know, using the civilized mechanisms of proper appellate court procedure.
But I mean, that judge left us no choice! How can we possibly be expected to drop everything in order to drop everything at the drop of a hat? Laws just don’t stop enforcing themselves – someone actually has to set the manual handbrake on the grinding, rusty gears of government in order to stop enforcing a law. We can’t stop on a dime, you know – there’s institutional momentum. Plus, consider the poor voters.
Heck, you can see that we made a hash of things just in that last two days – canceling voter I.D. issuance, restarting voter I.D. issuance, canceling mobile voter I.D. stations. Our hopelessly inept bureaucracy just can’t take this kind of whipsaw action.
6. Okay, Obviously The 5th Circuit Wasn’t Demonstrably Wrong To Stay the Injunction.
A. The Trial Court Deliberately Caused Mass Panic And Confusion, With Mere Days to Go Before the Election! Outrage!
Well, for one thing, we never did anything wrong in the first place, so there’s that. But furthermore and more immediately, the 5th Circuit was just doing what it’s seen the Supreme Court do in exactly this sort of circumstance.
The trial court hauled off and issued an off-the-cuff, “gotcha” order that mucked up election procedures on the very eve (the eve I tell you!) of an election, creating sheer chaos, and the 5th Circuit had to step in and put things to right. So really, all the 5th Circuit was doing was just what you would have done in their place.
I mean, we’re going to have to un-issue a bunch of forms. Like, at least eight forms. We already threw out the old ones, and nobody knows how to work our office copier.
It’s all just so unfair and disruptive, and the court didn’t even ask us if it would be hard to go back to the old way of doing things. Which, if they had asked, we would have said, “Yes. I’m paralyzed by the very thought of having to conduct elections without asking for photo i.d. I mean, how would that even work. A voter would come in, and I would say, “May I seeyourmm…thingie.” See? Impossible.
B. We are So Totally Going To be Vindicated
Plus, as I mentioned previously, as soon as real appellate judges take one look at this lawsuit, they are so going to totally vindicate the State of Texas. We’re the victims, here. Just minding our own business, enacting harmless, neutral election procedures, when suddenly these, these … groups. These partisan groups, with their filthy motives. They come in, and they make up a bunch of stuff. and then they call us the racists. Us! We’re colorblind! We don’t even ask people what race they are when they vote, and you know why – because we don’t see “race.” We see hardworking, easily distracted citizens who just want to show their picture I.D.s and do what’s right for democracy. We don’t even bother tracking them!
Plus, and more damning, all the so-called “injured parties” they paraded before the court weren’t even injured. All 17 of those minority voters managed to find the hustle and energy to get their picture I.D.s eventually – they can all vote! We didn’t harm anybody! Like I said. Totally innocent of all wrongdoing. You can bet we’re going to be thinking about sanctions. If we’re guilty of any crime, we’re guilty of the crime of caring too much. And if that’s a crime, then I don’t want to not be a criminal.
C. The Trial Court Acted Like Crawford isn’t even a Thing
As you’ll recall, the brilliant Justice Scalia noted in his incisive and illuminating concurrence to Crawford v. Marion Cty. Election Board, 553 U.S. 181, 198, (2008), going down to the DPS office to get a drivers license is as easy and painless as falling off a log. No one who jumps through bureaucratic hurdles to get a picture I.D. has anything to complain about – heck, they’ve got it too easy. Make ‘em walk barefoot through broken glass and then they can come crying to me about how it’s “so hard” to vote.
And, as the 7th Circuit Court of Appeals has so recently observed in Frank v. Walker, voting is always a little bit of a hassle. So what? Get a bus schedule and figure it out. We’re not here to wipe the milk off your chin. You think this is a hardship? Wait’ll I show you a real hardship.
And one more thing – the trial court made a big deal about how there’s almost no in-person voting fraud. Well, there isn’t much bank robbery either, so I guess we should just dump all the cash out in the street and hope for the best. So what if nobody is actually stealing elections by impersonating voters? Now that we’ve given people the idea, we have to be vigilant. But I guess the trial court doesn’t care if people just go around committing crimes.
D. Nobody Ever Managed to Find A Real, Live Disenfranchised Minority
Groups like LULAC, MALC, NAACP, and the Department of Justice went all over the State trying to find people victimized by our voter I.D. law. And you know what, these groups (which, I’ll have you note, are associated with minorities) weren’t able to find any actual victims. All they found were a bunch of eggheads looking for an easy buck, testifying about “charts” and “demographics” and “math.” As if any of that is real.
Has any officer of the State personally gone into a polling place and pistol-whipped a minority voter? Not that I know of, and even if they have, I bet they haven’t been doing it systematically. Plus, we wouldn’t allow that sort of thing. So where’s the victim?
Just ask yourself that – if you can’t find the victim, then it follows (Q.E.D.) that nobody did anything wrong. Because that’s exactly right.
The State of Texas has bent over backwards trying to help poor people. We told them that if they’re over age 65, just vote by mail. We told them how to get picture I.D.s. We put helpful information on our website. We set up some folding tables and tried to help people get I.D.s, and nobody took us up on it. It was a waste of time.
Here’s the thing, Mostly, people can get drivers’ licenses. I mean, think about it. Who do you know who doesn’t have a driver’s license, besides some old people, who if they would just spend a little time organizing their lives could plan to go down to the post office and mail in their ballot like, whenever.
We don’t judge those who can’t get I.D.s – we don’t even know if those people are minorities or not. Maybe they’re just not at that place in their life where they want to get an I.D.
Or maybe they are the kind of people who shouldn’t get an I.D. I’m not saying that I know that for sure. I’m just throwing it out there. And we’re not going to force anyone to get a picture I.D. That’s presumptuous, and probably racist. And patronizing. Let people not get I.D.s if they don’t want to. It’s a free country.
Anyway, voter I.D. just isn’t that big a deal. Even the expert for the DOJ said back in 2009 that “voter I.D. doesn’t appear to present a significant barrier to voting.” That’s from Stephen Andsolabehere’s article in Vol. 42 of PS: Poli. Sci. and Pol., at page 129.
Yeah, I know, “Professor” Andsolabehere then qualified that statement by basically clarifying that he was referring to voter I.D. as an idea in the abstract, and not to the fiendishly punitive form of picture I.D. laws adopted by the State of Texas. So what?
E. Not to Beat A Dead Horse, But I’ve got Another 30 Pages To Fill
Look, let’s just get down to brass tacks. We all know how this is supposed to play out. I’m going to express about 5,000 more words of outrage. I’m confident that you guys are going to do the right thing. Because, c’mon. Why would minorities get so exercised about voting rights anyway? – they’re on the losing side.
See you on the back nine.
Stepping away for a moment from the more significant drama of the State’s recalcitrant commitment to widespread, damaging racial discrimination, I’ve been momentarily distracted by some election gossip.
1. The Failed Attempt By A Notorious Houston-Area Street Gang to End What Few Statutory Restrictions on Political Contributions Still Remain
(I wasn’t able to find a contemporary photo of the King Street Patriots, but this picture of a turn-of-the century street gang is a more-than-adequate substitute and visual representation of the actual organization. Hine, Lewis Wickes, “Street gang, corner Margaret and Water streets, Springfield Massachusetts — June 27, 1916, 4:30 p.m.” From the collection of photos included in the National Child Labor Commission’s records at the Library of Congress. http://www.loc.gov/pictures/collection/nclc/, reposted at http://www.shorpy.com/node/9105).
The thuggish street gang formerly known as the King Street Patriots has recently suffered a setback in the Austin Court of Appeals – the group had been sued by the Texas Democratic Party for having illegally funneled money to specific right-wing candidates in violation of the Texas Election Code. The King Street Patriots counter-sued, and argued that all regulations of campaign fundraising are unconstitutional prior restraints on free speech.
That argument went nowhere, in part because the state appellate court found that even in this debased era, there can be some regulation of the flow of money in politics.
Sadly, I won’t have the King Street Patriots to kick around anymore. The gang, beset on all sides by increasingly negative publicity, will continue as True the Vote, but is rumored to have abandoned its reliance on distinctive gang colors and hand signs to identify its members and territory.
2. The Other Voter I.D. Lawsuit
Judge Larry Myers of the Texas Court of Criminal Appeals has filed a civil lawsuit against the State because he is of the opinion that the Texas picture I.D. requirements for voters violates the state constitution, for a very odd, sophistic reason – because the state constitution lacks a specific authorization for “preventing” voting fraud, any such attempt on the part of the Legislature is (in the judge’s eyes), ultra vires (in non-legalese, “outside legally delegated authority or power”). This is the kind of lawsuit that qualifies as quixotic, although the more the merrier, I say. Especially given that a Federal judge has already found that the voter I.D. law violates the Fourteenth Amendment.
3. Effect of Minority Turnout On Elections
I got an email from an organization called “Live Free Fair,” which appears to be a branded public-interest website run by an Oregon internet marketer named Gary Mitchell Gingrich (who is, as far as I know, not related to Newt Gingrich, and who certainly appears not to share Newt’s political views).
Anyway, with all due disclaimers about not knowing who these people are, the organization asked me to promote a link to a graphic indicating the increasing strength of minority voting, and how that increasing strength has prompted Republican efforts to discriminate against minority voters.
As interesting as the graphic is, I would caution reading too much into its statistical assertions. Because the presidential election isn’t a direct election, and because the organization of the electoral college overweighs the relative strength of votes cast in smaller states, one should be careful about using national demographics to predict regional election outcomes.
4. Galveston County Misprints Its Ballots
When Galveston County was printing its ballots, Bill Sargent (the county elections supervisor) called the Secretary of State’s office to ask if he was supposed to put any designation next to the name of the independent candidate for county judge. Whichever Elections Division staff attorney he talked to made a mistake and said that independent candidates didn’t have to be designated as such.
This turned out to be an expensive mistake – prompting a reprogramming of all the election equipment, and the reprinting of 5,000 ballots. As any elections official who programmed the 2006 gubernatorial ballot knows, independent candidates on a county election ballot are listed separately from the party candidates, and are designated as explicitly independent.
Mistakes happen. And this mistake got fixed promptly – and the 600 or so mail ballots that went out can be corrected and re-sent. Nobody likes having to reprint ballots – the formal destruction and reprogramming are a hassle, but the alternative (conducting an election with wrongly-printed ballots) would have been so much worse. Kudos to whoever caught the error and promptly fixed it.
5. Steve Munisteri Blows His Top
I heard a rumor that the current chair of the Texas GOP had a theatrical meltdown on October 6th, and burst into a Travis County voter registration site raving that the county was illegally registering voters after 5:00 p.m on the last day to register for the November election. I wasn’t there, and I’m getting this third-hand, so take all this for what it’s worth, but the story was too embarrassingly revealing not to repeat.
Of course, there’s no such thing as a 5:00 p.m. deadline for voter registration – as long as the application is postmarked or received before midnight on the first business day 30 days or less before the Election Day, the application is good for that election.
Mr. Munisteri knows that, of course. But (if he did actually have a public fit, as he is rumored to have done), bursting into a public place and yelling about illegality would at least demonstrate the Texas GOP’s commitment to the cause of scaring voters and disrupting voter registration activities generally.
As has been widely reported today, the 5th Circuit did what Professor Hasen and others had pessimistically expected. Citing Purcell v. Gonzalez, the appellate court stayed the injunction issued in Veasey v. Perry because of the nearness of the election. The plaintiffs have appealed the 5th Circuit’s order to the U.S. Supreme Court, where one hopes that common sense will prevail. I would remind the Justices that Texas is about to violate the U.S. Constitution and federal law yet again, as it has for the last three elections.
Justin Levitt’s editorial on this issue is spot-on – only the most disingenuous argument could support the idea that imposition of the Texas voter i.d. law is called for to save the poor voters from confusion because early voting starts up on the 20th, especially when one considers how easily the State transitioned into the prior law when preclearance was denied close to the November election back in 2012, and how quickly the State implemented the 2011 picture i.d. law after the Supreme Court issued its decision in Shelby County v. Holder.
In the latter case, as you will recall, the State announced immediate implementation of the law less than two hours after the decision came out.
Since fairness might be too shocking and upsetting to Texas voters so inured to hardship, the Secretary of State has also announced the cancellation of previously-scheduled mobile voter i.d. stations. (To be fair, these cancellations are almost certainly the result of bureaucratic incompetence, rather than actual malice).
As expected, the Federal District Court in Corpus Christi has found that the Texas voter I.D. law is an unconstitutional burden on the voting rights of minority voters and constitutes a poll tax.
As further expected, the court’s decision also finds that the State intentionally discriminated against minority voters. As a result, the court indicates that it will issue additional orders following a status conference.
I expect that the State will need to do preclearance submissions pursuant to the terms of a court order under Section 3(c) of the Voting Rights Act for at least the foreseeable future.
Gosh, I hope the Elections Division at the Texas Secretary of State kept all of its Section 5 paperwork, file cabinets, file shelves, and materials for preclearance submissions. It’d be a shame if they had to start up again from scratch.
And, as expected, Greg Abbott has invoked “voter confusion” as the impetus for seeking a quick suspension of the decision from the 5th Circuit Court of Appeals (also known as The Worst Circuit).
By the way, doesn’t it strike you as a bit … conflict of interest-ish … for an actively campaigning candidate for governor to ask a federal court for political favors on the eve of an election?
Notably, the U.S. Supreme Court (in reversing the 7th Circuit order that reinstated Wisconsin’s voter i.d. law) signals that at least a majority of the justices still adhere to the traditional common-law doctrine that courts should not impose last minute judicial orders affecting voting.
Rick Hasen and others refer to this as the “Purcell” doctrine, a shorthand reference to a 2006 Arizona voting case, Purcell v. Gonzalez, wherein the U.S. Supreme Court blocked a last-minute injunction against enforcement of an Arizona voter i.d. law.
Whether this cuts for or against Texas remains to be seen, although I tend to agree with Justin Levitt that the 147-page decision in Veasey v. Perry is “Purcell-proofed.” It isn’t a spur-of-the-moment injunction of the sort that was disapproved of in Purcell – (1) it’s a thoroughly vetted and fact-heavy decision on the merits following a lengthy trial, and (2) it does not impose any resource-intensive or difficult change to an existing process, but merely relieves the State of an existing administrative burden. At this point, a court order reimposing the Texas voter i.d. requirement would look more suspect from a Purcell-based analysis.
Here are the links, for those of you using web readers:
http://electionlawblog.org/?p=66613 (I cited Justin Levitt’s blog entry twice, because I liked it so much).