[EL] DOJ in Texas voter id case/more news

Mon Feb 27 12:29:02 PST 2017

Some Clarification on What DOJ Is and Isn’t Doing in the Texas Voter ID Case<http://electionlawblog.org/?p=91350>
Posted on February 27, 2017 12:18 pm<http://electionlawblog.org/?p=91350> by Rick Hasen<http://electionlawblog.org/?author=3>
Before tomorrow’s hearing, the United States Department of Justice will ask a federal district court to voluntarily dismiss its claim that in enacting its strict voter identification law, Texas acted with a racially discriminatory purpose. There is nothing in the upcoming motion about DOJ’s claim that Texas’s law had racially discriminatory effect in violation of Section 2 of the Voting Rights Act. Thus, despite some press releases from groups to the contrary, DOJ has not (at least not yet) abandoned its suit against Texas’s law.
So what does this new motion mean? Even if granted, this motion by itself will have little impact on the case itself, as I will explain, but is indicative of a pullback of the DOJ in this case and a sign of possible things to come — with DOJ either staying out of these cases, or coming in on the side of states that have passed strict voting laws (a reversal of practice under the Obama DOJ).
The rest of this post gives some wonky details.
There are two primary claims in this case: that Texas passed its law with a racially discriminatory intent and that it passed it with a racially discriminatory effect. The trial court initially found that Texas acted with both discriminatory effect. Eventually the entire 5th Circuit, sitting en banc, agreed on the effects question, but held that the trial court used the wrong evidence and standard to judge discriminatory intent. It remanded the case for a new hearing on that question, which is taking place tomorrow.
Here’s why this matters. The Fifth Circuit said that a discriminatory effects finding would be a reason to soften Texas’s law (such as by allowing those who lack ID and cannot easily get it to put in an affidavit swearing to identity), but not to throw it out entirely. But a finding of discriminatory effect would allow throwing the law out entirely. It could also provide a predicate, under Section 3 of the Act, to put Texas back under federal supervision for up to 10 years.  So a finding of intent is a big deal.
BUT: in this case there is both the DOJ and private voting rights plaintiffs pursuing the case. So even if the trial court lets DOJ drop out, the private plaintiffs can still pursue the same claims. All this does is not put DOJ in the awkward position of putting forward a theory that AG Sessions likely does not believe. It will not have any effect on the case (except to the extent that the DOJ’s position is persuasive). And it leaves DOJ in the case for the trial court to later fashion a permanent remedy for the discriminatory effects finding (should the court find no discriminatory intent, or have such a finding reversed by the Fifth Circuit again).
STILL: This development is notable. It means DOJ is pulling back from aggressive defense of voting rights. And I predict, in cases like Texas and North Carolina, eventually DOJ will be on the other side of this issue, supporting the right of states to make it harder to register and vote (purportedly on anti-fraud or public confidence grounds).
[This post has been updated.]
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>

CCP Statement on Loss of Independence Institute Case<http://electionlawblog.org/?p=91348>
Posted on February 27, 2017 11:39 am<http://electionlawblog.org/?p=91348> by Rick Hasen<http://electionlawblog.org/?author=3>
Release:
The Supreme Court today affirmed without comment a ruling in the case Independence Institute v. Federal Election Commission, upholding the constitutionality of a campaign finance disclosure law. The Court’s order reflects agreement with the lower court’s result, but not necessarily its reasoning.
Under the law challenged in the case, government reporting obligations are triggered for any group that runs a broadcast ad that names a federal candidate, runs within 60 days of a general election or 30 days of a primary, and could possibly reach 50,000 people in the district or state where the named candidate was running for election. The organization must report the spending on the ad and the names and addresses of donors who gave $1,000 or more in earmarked donations “for the purpose of furthering” the ad.
 The Center for Competitive Politics (CCP), which represented the Institute, released the following statement in connection with the Court’s decision:
“We are disappointed that the Supreme Court chose to forego full consideration of this important appeal, and instead summarily affirmed the lower court,” said Allen Dickerson, CCP Legal Director. “We look forward to continuing our efforts to defend the right to free speech and association.”
“Politicians are exploiting the current legal uncertainty to pass intrusive laws that provide little or no value to the public, and enable official and unofficial harassment of speakers,” said CCP Chairman Bradley A. Smith. “The court has yet to uphold intrusive laws that affect issue speech made more than 60 days before an election. It has yet to consider laws that force disclosure for contributions not earmarked for election-related speech. The Supreme Court has repeatedly found that donor privacy is essential for free speech and dissent on issues. We hope to vindicate those rights in future cases.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

Rumors DOJ Switching Positions in Texas Voter ID Case<http://electionlawblog.org/?p=91346>
Posted on February 27, 2017 8:55 am<http://electionlawblog.org/?p=91346> by Rick Hasen<http://electionlawblog.org/?author=3>
Gerry Hebert: <https://twitter.com/GerryHebert/status/836247873595584512> “BREAKING NEWS! Sessions’ DOJ is abandoning its 6-year old claims that TX Photo ID law was enacted w/discriminatory intent. We will fight on!”
Ari Berman<https://twitter.com/AriBerman/status/836256231715131393>: “I’m told Sessions DOJ will switch sides in Texas voter ID case & argue in court tomorrow that law not intentionally discriminatory (1/2)” “However, Sessions DOJ will still argue TX voter ID law has effect of discriminating against blacks, Latinos. 5th Circuit found same (2/2)”
There’s no filing yet.  More when I have it.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Crowd Sourcing Voting Rights Litigation<http://electionlawblog.org/?p=91344>
Posted on February 27, 2017 7:52 am<http://electionlawblog.org/?p=91344> by Rick Hasen<http://electionlawblog.org/?author=3>
Interesting.<https://www.theatlantic.com/politics/archive/2017/02/guam-territories-lawsuit-voting-rights/517881/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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