[EL] Biggest Aspect of the TX Case: Section 5 coverage of Texas

[John Tanner]

I should add that it has been the uniform (I think) practice that the "court” has mean the judge(s) that made the section 3(c) determination, which makes sense given her or his familiarity with the facts.  It could also mean the court for the SD TX (or wherever) — any judge therein -- which would avoid the potential, where the scope of section 3 coverage is sufficiently broad, for a single judge’s docket to get overwhelmed by voting changes, should the state or locality(ies) take that route.   

In my experience the local forum also creates a much different dynamic than the trip to DC, both in terms of expense and general bother, but in what I have seen as the relative disinterest of the DC court in the state/local politics of a given change 

And note the novel prospect of a single judge determining the legality of a statewide redistricting plan. 

On Oct 10, 2014, at 9:06 AM, John Tanner <john.k.tanner at gmail.com> wrote:

> Actually, it would be coverage under Section 3(c) of the Act, and the State could go either to District Court in TX (not the DC Court) per DOJ.
> 
> On Oct 10, 2014, at 5:15 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
> 
>> The Biggest Aspect of the Texas Case: Texas To Be Covered Again by Section 5 (If Case Stands)
>> Posted on October 10, 2014 2:14 am by Rick Hasen
>> Justin noted a key aspect of the Texas id decision which I want to highlight: “Also extremely important: the court expressly finds intentional discrimination relevant to bail-in under the Voting Rights Act, and says it will consider a bail-in order in the days to come.  If the court indeed follows up with a bail-in order, Texas could become the first state brought back under a preclearance regime since Shelby County.”
>> 
>> Getting Texas and North Carolina covered again under the Bail In provisions of the Voting Rights Act has been a key strategy of the U.S. Justice Department. These are test cases, and it is an extremely high hurdle. Not only does DOJ have to prove the state engaged in intentional racial discrimination in voting, but the court upon so finding still has discretion as to whether to require the state to be subject again to preclearance and to fashion the scope of the order (in terms of time and types of changes subject to preclearance). At the end of the TX order, the judge says there will be a status conference to determine the scope of the preclearance.
>> 
>> If this works, it will be very important because it would mean that a variety of changes, such as voter id laws, registration laws, and redistricting, would again be subject to federal approval (either DOJ or a three judge court in DC).  Preclearance is a big stick for the federal government.
>> 
>> In Shelby County, 4 Justices said that preclearance had to be tied to current conditions to be constitutional. (Justice Thomas would have gotten rid of preclearance even for bail in). 4 Justices believe preclearance even under the old rules is ok. If the TX trial court has made credible findings that Texas has engaged in intentional racial discrimination in voting, even the           conservative Justices could agree to preclearance. But that’s no sure bet, and you can be sure that Texas will litigate this question very, very hard.
>> 
>> <share_save_171_16.png>
>> Posted in election administration, Supreme Court, The Voting Wars, voter id, Voting Rights Act
>> Don’t Get Too Excited That #SCOTUS Blocked Wisconsin’s Voter ID Law This Election
>> Posted on October 10, 2014 2:04 am by Rick Hasen
>> I’ve explained why I think the Supreme Court was correct to block Wisconsin’s voter id law for use in this election. There was too much of a risk that the law could not be implemented fairly in time for this election, leaving many voters disenfranchised (a point WI basically conceded and then said “so what”).
>> 
>> But, judged by Justice Alito’s dissent in yesterday’s Supreme Court order, the Court acted pursuant to this Purcell principle and not because it believes Wisconsin is likely to succeed on the merits.  All of these cases OH, NC, and WI (and soon Texas?) raise different issues when considered on an emergency basis compared to when the Court, on the merits, will (if it agrees to hear these case) decide whether new restrictions in voting violate the Constitution’s Equal Protection Clause and/or section 2 of the Voting Rights Act.  On that point, I recently wrote in Slate: 
>> 
>> But it’s no good betting that the Supreme Court will read either the Constitution or the Voting Rights Act so expansively. Indeed, many of us were apoplectic when the Supreme Court in Shelby County struck down the preclearance provisions of the Voting Rights Act in 2013 precisely because we knew that these other tools for policing cutbacks in early voting were unlikely to be successful given how the courts had already interpreted the scope of these provisions. For the most part, it has been Democratic and more liberal judges who have issued opinions reading voting rights protection broadly, and it has been Republican and more conservative judges who have issued opinions reading the protections narrowly. There is every reason to expect the same pattern at the Supreme Court, with a 5–4 conservative-liberal split on these questions.
>> 
>> So we should celebrate that the Supreme Court did the right thing now in the Wisconsin case. But don’t expect them to continue doing the right thing.  The Chief and Justice Kennedy will very likely be with today’s Wisconsin dissenters on the merits down the line.
>> 
>> <share_save_171_16.png>
>> Posted in election administration, Supreme Court, The Voting Wars, voter id, Voting Rights Act
>> Is Texas ID Law Blocked Now? Should It Be? Would It Stay Blocked?
>> Posted on October 10, 2014 1:56 am by Rick Hasen
>> In my last post, I wrote about the massive opinion in the Texas voter id case that “there is no discussion of whether the actual order will apply to this election and the injunction will stop its use in this election.” Justin now says that the opinion “does, indeed, enter a permanent injunction against the ID law – on pp. 142-143 of the opinion.”  I fully agree with that, but that does not tell us what is to happen (or what should happen) in this election.
>> 
>> Here is the operative language from page 143 of the opinion: “Under the injunction to be entered barring enforcement of SB 14’s voter identification provisions, Texas shall return to enforcing the voter identification requirements for in-person voting in effect immediately prior to the enactment and implementation of SB 14.”
>> 
>> This contemplates a separate injunction from the opinion, and it is not clear that this order will have an immediate effect for this election. I am not saying that the judge won’t block the id law for this election—only that this opinion itself does not have the force of law to do so, and that there will be a separate order.
>> 
>> The first question this raises is whether there is an order to be appealed from, or whether Texas needs to wait.  (I don’t have access to PACER, and there could be a separate order already sitting there.)
>> 
>> But let’s assume that the court issues such an order blocking ID for this election. In last night’s post I said that this would create a huge Purcell problem, changing the rules just before the election.Justin disagrees, saying that not all Purcell problems are alike, and that in Texas case, blocking the id would be easy-peasy and not violate Purcell:
>> 
>> The only required logistics involve maintaining the status quo ante on election day itself, which involves a bit of pollworker training — the pollworker training used for years before — about what ID is acceptable.  There may well be a bit of confusion.  But weighing a small amount of confusion against the implementation of a law found to be the product of intentional discrimination with what a court found (after a full trial) to be a substantial amount of likely disenfranchisement is nothing the Court has yet encountered.
>> 
>> He goes on to note that although Purcell involved a very similar fact pattern—the 9th Circuit at the last minute blocking implementation of AZ’s id law, the 9th Circuit case is different because the court gave no reason for its order reversing a trial court decision to allow the id law to go forward. And here we have 145 pages of reasons.
>> 
>> This raises two questions.
>> 
>> 1. What is the Purcell Principle?  (I’m going to write this idea up for a symposium–dibs.) Is it that one should not change election rules before the election because doing so can cause voter confusion and/or electoral chaos? Or is it that courts must weigh such risks? How should such risks be weighed against the risks of voter disenfranchisement? Or is it that courts must give good reasonsfor blocking a law before an election? I don’t find the last of these very persuasive, but I think the key difference between my view and Justin’s is about how much weighing courts are to do here.  I think Justin must be right that there has to be some weighing. And if there is a serious risk of voter disenfranchisement, as in Wisconsin (and perhaps Texas—I still need to read the full opinion), that counsels to give courts more leeway to block things. So normatively this is a difficult question.
>> 
>> 2. What will the 5th Circuit or the Supreme Court do if the judge blocks the Texas voter id law this election? My prediction is that the 5th Circuit will reverse the trial court, whether or not it should do so under the Purcell principle. This is based upon my view of the ideology of the judges/Justices likely to decide the case, and how I think they will read the Purcell principle.
>> 
>> <share_save_171_16.png>
>> Posted in election administration, Supreme Court, The Voting Wars, voter id, Voting Rights Act
>> 
>> -- 
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
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