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.