[EL] 5th Cir. voter ID decision--likelihood of en banc review

[Josh Douglas]

Rick has suggested that today's 5th Circuit panel decision holding Texas's
voter ID law invalid under Section 2 of the VRA is a good candidate for en
banc review, especially given that the panel is somewhat "liberal" for that
court.  Having clerked on the 5th Circuit, I'm not sure that is entirely
correct.

Judge Haynes, who wrote the opinion, is a George W. Bush appointee.  She
has gone with the conservative wing of the 5th Circuit many times
(including in the recent Texas abortion case).  True, Judge Stewart is
pretty liberal, and Judge Brown is a district judge (making her a wash in
the en banc analysis as she would not have a vote).  Ultimately, the fact
that Judge Haynes wrote the opinion is very important here.  And it is
possible that she purposely wrote a more narrow opinion to avoid having the
case go en banc.

Typically the strong conservatives on that court (like Judges Jones,
Clement, and Smith) need to retain some of the more moderate conservatives
to take an ideological case en banc, so losing Judge Haynes here makes en
banc review unlikely.  I'm not saying it won't happen, but I think Supreme
Court cert is much more likely than en banc review given that Judge Haynes
would argue against it (in any internal memos debating the case).  For this
to go en banc, the conservatives would need to win over moderates like
Judges Southwick and Prado, and I don't see that happening, especially
given the fact-intensive nature of the court's analysis.

Josh


-- 
Joshua A. Douglas
Robert G. Lawson & William H. Fortune Associate Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935
joshuadouglas at uky.edu
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