Home » Analysis » How Would I Have Argued For Texas on the Emergency Stay Issue?

How Would I Have Argued For Texas on the Emergency Stay Issue?

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?”

Here’s how:

  • 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.


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