SCOTUS Split On Voter ID

In a ruling issued at the unusual hour of 5 am on Saturday morning, the Court allowed Texas’s voter ID law to remain in place for the upcoming elections, citing concerns about disrupting the voting process. But not all of the justices were on board:

A majority of justices rejected an emergency request from the Department of Justice and civil-rights groups to keep the state from enacting a law that requires citizens to produce prescribed forms of photo identification before they could cast a ballot, while three justices—Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan—dissented. “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” wrote Ginsburg.

The order was delayed, apparently, because Ginsburg insisted on issuing a dissenting opinion. Rick Hasen digs into her six-page dissent, which he sees as laying the groundwork for a future battle:

Importantly, Ginsburg concluded that the effect of the law in its entirety would be to diminish voter confidence in the system. “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters,” she wrote.

The Texas case will likely make it back to the Supreme Court, perhaps next year, after the 5th Circuit takes a full look at the case. While the Supreme Court’s vote on the stay order in the Texas case does not tell us for sure how things will go when the court gets to the constitutional merits of the challenge, the five conservative justices on the Supreme Court are likely to let Texas put its ID law in place because of their general view of the scope of the Constitution and the Voting Rights Act. No doubt Justice Ginsburg knows this.

How Judis understands the motivation behind the law:

[Gov. Rick] Perry claimed that the law would “uphold the integrity of our state’s electoral process and insure our state has passed the proper protections against voter fraud.” The law, which requires a photo ID, was intended to prevent voter impersonation, but as [judge Nelva Gonzales] Ramos pointed out, Texas had uncovered exactly two cases of voter impersonation from 2001 to 2011. Its real purpose was to forestall a demographic time bomb that could threaten Texas’ Republican majority. From 2000 to 2010, 78 percent of Texas’s population increase consisted of African-Americans and Hispanics, who could be expected to support Democrats rather than Republicans. If those population trends were to continue, and if the new Hispanic voters (who made up the bulk of the population increase) were to flock to the polls, Republicans could be doomed.

Scott Lemieux admits that there is “a quasi-defensible reason for the court’s latest move”:

The Supreme Court is usually reluctant to issue opinions that would change election rules when a vote is imminent. For example, the court recently acted to prevent Wisconsin from using its new voter ID law in the upcoming midterms, coming to the opposite result from the Texas case. That is the principle at work here, and on a superficial level it makes sense.

But as Ginsburg — joined by Justices Elena Kagan and Sonia Sotomayor — points out, the general reluctance to change election rules at the last minute is not absolute. In Wisconsin, using the new law would have created chaos. For example, absentee ballots would not have indicated that identification was necessary for a vote to count, so many Wisconsin voters would have unknowingly sent in illegal ballots.

In the Texas case, conversely, there is little reason to believe that restoring the rules that prevailed before the legislature’s Senate Bill 14 would have been disruptive.

Ultimately, the court may end up backing Ginsburg’s contention that the law is unconstitutional, but Ian Millhiser complains that letting it stand even for one election is dangerous, and looks to history for the reason why:

For much of the Jim Crow Era, the South was a one party region. General elections were largely formalities, and the Democratic Party’s candidate was all but guaranteed victory. So, in 1923, Texas tried to prevent African Americans from voting by enacting a law providing that “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas.” When this law was struck down by the Supreme Court, Texas enacted a new law allowing the state Democratic party to establish rules that only permitted “white democrats” to vote in the primary. When that law was struck down, the state party passed a resolution, pursuant to no law whatsoever, providing that only “white citizens” may vote in a Democratic primary. This action by the state Democrats was ultimately upheld by the Supreme Court, although the justices reversed course nine years later.

The lesson is that, if you allow a voter suppression law to go into effect for just one election, then the supporters of that law are likely to come up with a new way to suppress the vote if the first law is ultimately struck down. And even if the second voter suppression law is ultimately struck down, this cycle can continue forever so long as each law is allowed to be in effect for just one election.