The Supreme Court worked well past midnight Friday before allowing the state of Texas to enforce a voter ID law that a federal court judge had found to amount to intentional discrimination against African Americans, Hispanics, and the poor. The unexplained order, with three liberal justices in dissent, mocks all those pre-election public service announcements urging the importance of each and every qualified citizen to go to the polls and cast his or her vote.
The court included no explanation for its action in the order, issued in the predawn hours on Saturday morning. By inference, however, justices in the majority apparently agreed with the state’s argument that it would be disruptive to change voting rules so close to the Nov. 4 election. In a strongly worded dissent, Justice Ruth Bader Ginsburg said the argument is weak to begin with and is outweighed by the damage from disenfranchising hundreds of thousands of would-be voters under a discriminatory law. Justices Sonia Sotomayor and Elena Kagan joined the dissent.
The court’s action turned aside an effort by a coalition of civil rights groups, backed by the Obama administration, seeking to reinstate an injunction against using the law issued on Oct. 9 by a federal judge in Corpus Christi. Judge Nelva Gonzales Ramos had concluded, after a two-week trial, that the 2011 law could disenfranchise as many as 600,000 would-be voters who lack any of the government-issued IDs called for in the law.
Texas went to the conservative-dominated Fifth U.S. Circuit Court of Appeals complaining about changing voting rules so close to an election. The state relied in large part on a Supreme Court precedent, Purcell v. Gonzales (2006), that has been widely interpreted as barring courts from ordering changes in voting procedures on the eve of an election.
A three-judge panel consisting of two conservative Republican appointees and a rookie Obama appointee agreed with the state and put Ramos’s injunction on hold. Writing for the two GOP appointees, Judge Edith Clement said the state had an interest in “preserving the status quo” so close to the election. The Obama appointee, Judge Gregg Costa, said the court should be “extremely reluctant” to allow an election to be conducted under a law found to be discriminatory but bowed to the Supreme Court precedent.
The Supreme Court has been unusually busy this election season with voter ID laws. For those keeping score, the court in three previous cases had allowed Ohio and North Carolina to enforce laws imposing new restrictions on voting but blocked Wisconsin from implementing its new voter ID requirements. The distinguishing factor in the Wisconsin case, it would seem, was that a federal court judge had blocked the law in July and the Seventh Circuit had changed the rules in September by lifting the injunction after some absentee ballots had already been mailed out.
Surely, late changes in voting procedures can be a problem for election officials. As Ginsburg pointed out in the dissent, however, Texas would have had no great problem in reverting to the pre-2011 procedures for voter identification. She also noted that Judge Ramos had found the state’s efforts to educate voters about the ID law had been “woefully lacking” and “grossly” underfunded.
Ginsburg also contended that the Supreme Court precedent, Purcell, has been given exaggerated importance. The court’s brief, unsigned opinion in that case overturned a decision by the Ninth Circuit one month before the 2006 election to block an Arizona voter ID law. The court faulted the Ninth Circuit, however, not so much for the timing of its decision as for its failure to explain its reasons for blocking the law after a lower court had upheld it.
The Texas case is completely different. Ramos’s 147-page opinion is thoroughly documented and backed by precedent; the Fifth Circuit majority makes no effort to question her conclusion that the Texas legislature knew and intended that the law would make voting disproportionately harder for African Americans and Hispanics than for Anglos. The Supreme Court majority similarly did not engage on the racial discrimination issue; the unsigned order merely recites in legalese that the plaintiffs’ application to vacate the Fifth Circuit’s stay of the lower court injunction is denied.
Procedurally, the court’s inaction points to a fallacy of its decision in 2013 to effectively eliminate the preclearance requirement imposed on Texas and other Southern states under the 1965 Voting Rights Act. In his opinion for the conservative majority in that case, Chief Justice John G. Roberts Jr. noted that the act’s nationwide provision against racial discrimination in voting, section 2, would still be available as an enforcement tool. Joshua Block, a lawyer with the American Civil Liberties Union, took to Twitter to note the contradiction. “Remember when SCOTUS said the availability of speedy injunctive relief under Section 2 was an adequate substitute for pre-clearance?” he tweeted.
Attorney General Eric Holder interrupted his weekend long enough to denounce the court’s action. It was “a major step backward,” Holder said, for the court to leave in place a law “designed to discriminate.” Perhaps the impact of the law will be less than its opponents fear, but the court’s decision to let the law stand departs from the widely shared civic belief in a universal franchise as a fundamental principle of modern American democracy.