[EL] Breaking News: Texas voter id decided: analysis
Rick Hasen
rhasen at law.uci.edu
Thu Aug 30 10:36:44 PDT 2012
Interesting. I will update my post to note that the issue is not settled.
On 8/30/12 10:30 AM, Adam Morse wrote:
> 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
> <mailto: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.
>
> 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.]
>>
>> 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 92697-8000
>> 949.824.3072 <tel:949.824.3072> - office
>> 949.824.0495 <tel:949.824.0495> - fax
>> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://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 92697-8000
> 949.824.3072 <tel:949.824.3072> - office
> 949.824.0495 <tel:949.824.0495> - fax
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://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 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv
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