[EL] Breaking News: Texas voter id decided: analysis

Thu Aug 30 10:30:38 PDT 2012

Re point 3:  If I recall correctly, there is some dispute as to whether
3-judge district courts are bound by the precedent of the court of appeals
for the circuit in which the district court sits.  I looked at this
question several years ago; if I remember correctly, various 3-judge
district courts have addressed the question in passing, but most try to
avoid definitively answering it.  I'm unaware of any Supreme Court
precedent on the issue.

I would think that the best understanding is that 3-judge district courts
are only bound by Supreme Court precedent and law of the case.  Typically,
appellate authority is coextensive with binding precedent--a federal
appeals court can't bind a state supreme court because no appeal would lie
from the state supreme court to the federal appeals court.  Furthermore,
typically courts capable of issuing binding precedent to a lower court can
reverse themselves in some way in addressing a specific lower court's
decision--for example, an en banc appeals court can reverse prior circuit
precedent.  Because the DC Circuit has no power to hear an appeal from a
3-judge DC District Court, and no power to reverse prior circuit precedent
(or narrow or clarify the application of prior circuit precedent), I
believe the DC Circuit Court should be understood to lack the power to bind
a 3-judge panel of the DC District Court.  That could create problems with
regard to collegiality and intracircuit judicial relations, but I think
that's an acceptable cost.  If the precedent is outcome determinative, than
it will necessarily be reviewed (at least minimally) by the Supreme Court
anyway, so the costs in error either way are low.  Conversely, precisely
because the Supreme Court will necessarily consider the appeal, at least
summarily, having the lower court present its fullest reasoning and
consideration of the law is likely to be helpful to the development of the
law.

All of which is to say, I don't think that Rick's right that the district
court is bound to rule that Section 5 is unconstitutional.

--Adam Morse

On Thu, Aug 30, 2012 at 12:48 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>
> Some analysis:
>
>  Breaking News: Federal Court Holds Texas Voter ID Law Violates Voting
> Rights Act [Now Updated with Analysis]<http://electionlawblog.org/?p=39379>
> Posted on August 30, 2012 8:59 am <http://electionlawblog.org/?p=39379> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> You can read the unanimous 56-page opinion by Judge Tatel at this link.<http://electionlawblog.org/wp-content/uploads/texas-voter-id.pdf>
>
> The court has put in a scheduling order to address at a later date whether
> section 5 of the Voting Rights Act is unconstitutional.
>
> 1. This is a careful, unanimous opinion from a three-judge court which
> rejects most of the social science evidence submitted by both sides on
> whether Texas’s voter id law imposes greater burdens on minority voters.
> Instead, the court bases its analysis on three basically uncontested facts:
> (1) Minority voters are at least proportionately as likely as white voters
> in Texas to lack the documents needed for Texas’s new id law (which the
> Court calls perhaps the most “stringent” in the nation; (2) the new i.d.
> law will put high burdens on poor people who lack id (many of whom would
> have to travel up to 200 or 250 miles at their own expense to get the i.d.
> as well as pay at least $22 for the documents needed to get the i.d.; and
> (3) minority voters in Texas are more likely to be poor.  Using this simple
> structure, the court concludes that Texas, which bears the burden of proof
> in a section 5 case, cannot prove its law won’t make the position of
> protected minorities worse off.  And the court suggests this was a problem
> of its own making: Texas could have made the i.d. law less onerous (as in
> Georgia, which the court suggests DOJ was probably right to preclear) and
> Texas could have done more to produce evidence supporting its side at
> trial, but it engaged in bad trial tactics.
>
> 2. Texas is likely to appeal this case to the Supreme Court, and I would
> expect to see an application for an emergency injunction allowing Texas to
> use its voter id law during the upcoming election.  If this happens, this
> will be a major question for the Roberts Court, and it would have to be
> decided in short order.  Given the closeness to the election, it is not
> clear to me that even if the Supreme Court disagrees on some of the
> analysis with the district court that it would grant such emergency
> relief.  This is a big unknown.
>
> 3. There is still the constitutional question to address: Texas argued
> that if section 5 bars Texas from putting an id law in place, Section 5 is
> unconstitutional.  The district court issued a scheduling order to address
> this question at a later date, but given the DC Circuit’s *Shelby County*case I cannot see how this district court does anything but conclude it is
> bound to say section 5 is unconstitutional (unless and until the Supreme
> Court takes *Shelby County *and says otherwise).
>
> 4. The court was very careful to show that not all voter id laws are
> created equal, that states may have ample good reasons to impose voter id
> laws, and that such laws can be put in place in ways which do not
> discriminate against minority voters.  Not only did the court suggest that
> Georgia’s voter id law was probably ok; the analysis here could well be key
> in how the separate district court hearing the challenge to South
> Carolina’s voter id law will resolve that case. It is certainly possible
> that South Carolina’s law could be precleared, especially given some key
> concessions <http://electionlawblog.org/?p=39255>this week at trial.
>
> 5. The court does a very good job illustrating the problems with social
> science methods in trying to figure out just how many people lack voter
> ids.  It rejected evidence from both sides, and it does show just how hard
> it is to get a handle on the relationship between voter id and turnout.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D39379&title=Breaking%20News%3A%20Federal%20Court%20Holds%20Texas%20Voter%20ID%20Law%20Violates%20Voting%20Rights%20Act%20%5BNow%20Updated%20with%20Analysis%5D&description=>
>   Posted in Department of Justice <http://electionlawblog.org/?cat=26>, voter
> id <http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>
> | Comments Off
>
>
> On 8/30/12 9:00 AM, Rick Hasen wrote:
>
>  Breaking News: Federal Court Holds Texas Voter ID Law Violates Voting
> Rights Act <http://electionlawblog.org/?p=39379>
> Posted on August 30, 2012 8:59 am <http://electionlawblog.org/?p=39379> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> You can read the unanimous 56-page opinion by Judge Tatel at this link.<http://electionlawblog.org/wp-content/uploads/texas-voter-id.pdf>
>
> The court has put in a scheduling order to address at a later date whether
> section 5 of the Voting Rights Act is unconstitutional.
>
> [This post will be updated with analysis soon.]
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D39379&title=Breaking%20News%3A%20Federal%20Court%20Holds%20Texas%20Voter%20ID%20Law%20Violates%20Voting%20Rights%20Act&description=>
>   Posted in Department of Justice <http://electionlawblog.org/?cat=26>, voter
> id <http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>
> | Comments Off |
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
>
>
> _______________________________________________
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>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
>
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