Judicial Rebellion Against Voter ID

Like unruly schoolchildren using the presence of a substitute teacher as an opportunity to misbehave, in Veasey v. Abbott, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, has sent the jurisprudential equivalent of a spitball at the U.S. Supreme Court knowing that the deadlocked Court would probably take no corrective action.

On July 20, the Fifth Circuit, by a vote of 9 to 6, declared Texas’s voter-identification law unlawful even though the Supreme Court upheld a similar law eight years ago. The ruling was quite remarkable, coming as it does from a court of appeals generally regarded as the nation’s most conservative.

But Veasey is not an outlier. Other lower federal courts have similarly blocked or struck down the voter ID statutes of North Carolina, North Dakota, and Wisconsin. Disputes over voting rights have become increasingly rancorous and partisan. Nearly three dozen states, mostly Red, have adopted voter ID laws in recent years to prevent voter fraud. Members of the Democratic Party, which vehemently opposes voter ID and other restrictions on voting, dismiss the risk of voter fraud and openly accuse the Republican sponsors of these measures of attempting to suppress voting by poor people and African Americans. Without any supporting evidence in the record, courts deciding voter ID cases have unfortunately repeated this poisonous accusation.

The federal appeals courts, their ranks swollen with Left-leaning appointees of President Obama (along with holdovers appointed by Presidents Clinton and Carter), may view the current stalemate on the Supreme Court as license to ignore precedents they don’t like. Unless the vacancy created by the death of Justice Scalia is filled by a committed conservative originalist, this trend may foretell a groundswell of activist rulings across the land.

If voter ID laws, which have an impeccable constitutional pedigree, can be routinely overturned, imagine the fate of other state laws if the Court were to seat a justice in the mold of Ruth Bader Ginsburg or Sonia Sotomayor. A phalanx of liberal federal jurists is chomping at the proverbial bit to implement a Progressive policy agenda, including letting non-citizens and convicted felons vote. Many people (myself included) suspect that the Warren Court years could end up looking like an era of judicial restraint compared to the rulings to be expected from a Hillary Court.

Regarding the validity of voter ID, the relevant constitutional law precedent is not in doubt. In Crawford v. Marion County Election Board (2008), the Supreme Court upheld, by a vote of 6 to 3, an Indiana law that required voters to produce a government-issued photo identification card in order to cast a ballot. The lead opinion in Crawford was authored by Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy. Justice Scalia wrote a concurring opinion that was joined by Justices Thomas and Alito. (The dissenters were Justices Souter, Ginsburg, and Breyer.)

The Crawford majority concluded that the requirement that voters display a photo ID was closely related to Indiana’s legitimate state interests in preventing voter fraud and protecting public confidence in the integrity of the electoral process. Stevens’ lead opinion in Crawford affirmed that:

There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear. (Emphasis added.)

In the absence of a constitutional constraint, courts ordinarily defer to the judgment of the state legislature regarding the wisdom of a state law. Stevens noted in Crawford that:

States employ different methods of identifying eligible voters at the polls. Some merely check off the names of registered voters who identify themselves; others require voters to present registration cards or other documentation before they can vote; some require voters to sign their names so their signatures can be compared with those on file; and in recent years an increasing number of States have relied primarily on photo identification.

Stevens observed that the potential burden imposed by Indiana’s voter ID law—in the event that a voter lost his wallet or lacked a driver’s license—was ameliorated by the ability to cast a “provisional ballot” and the availability of free photo identification from the Indiana Bureau of Motor Vehicles.

Stevens also rejected the contention that Indiana’s voter ID law was invalid simply because it was enacted on a party line vote (with Republicans uniformly for it and Democrats uniformly against it). He wrote: “[I]f a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.”

More than a decade after Indiana enacted voter ID, turnout at the polls on election day has not declined, and there is no evidence of voter disenfranchisement.

Not only has Crawford not been overruled, it hasn’t even been questioned. In 2011, the Republican-controlled Texas legislature adopted a voter ID statute, Senate Bill 14, that—while stricter than the Indiana law in some respects—complied with Crawford in all essential respects. One of the seven forms of photo ID accepted by election authorities was a Texas election identification certificate issued by the Department of Public Safety at no charge to individuals lacking a Texas driver’s license or another form of approved ID. As in Indiana, voters showing up at the polls without a valid ID were authorized to cast a provisional ballot, permitting them to explain their lack of photo identification at a later time.

Americans are required to produce a valid photo ID to board a plane, cash a check, open a bank account, rent a car, pick up a prescription, and even to purchase certain cold medicines. The Texas lawmakers legitimately believed a photo ID should be required to enter the voting booth. (Senate Bill 14 took effect in 2013, when the Supreme Court struck down Section 4 of the Voting Rights Act in Shelby County v. Holder.)

How, in light of the Supreme Court’s Crawford decision, was Texas’s voter ID law successfully challenged? Three factors combined.

First, opponents waged a relentless legal blitzkrieg against Senate Bill 14. The plaintiff in the Fifth Circuit case is U.S. Representative Marc Veasey (D-Tex.).

Second, a sympathetic federal district judge appointed by President Obama, Nelva Gonzales Ramos, in 2014 ruled against Senate Bill 14 after a nine-day bench trial. Crawford involved a facial constitutional challenge.

Third, a fractured Fifth Circuit now has enough results-oriented Obama appointees to tip the balance in close cases.

In Veasey v. Abbott, the Fifth Circuit largely overturned Judge Ramos’ over-broad ruling—and her risible holding that Senate Bill 14 constituted a poll tax was reversed unanimously. But it narrowly upheld the finding that the law had a “racially discriminatory effect” under the Voting Rights Act, remanding the case to the district court for reconsideration of the conclusion that it was enacted for a “racially discriminatory purpose” under that Act. (A majority of the court charitably found that “much of the evidence upon which the district court relied was ‘infirm.’”)

The “discriminatory effect” holding is very tenuous. According to the trial court, 4.5 percent of registered voters in Texas lack a qualifying photo ID, comprising a group that is disproportionately black and Latino. Using a deferential standard of review, the Fifth Circuit strained to uphold the district court’s finding that this constituted a violation of Section 2 of the Voting Rights Act, despite the lack of any evidence that the law reduced voter turnout. And, on remand, how is the district court to divine the intent of the legislature in enacting a facially neutral law of general applicability, similar to one that has been upheld by the Supreme Court? This is a dubious enterprise, as Judge Jerry Smith pointed out in a toughly worded dissenting opinion.

The principal dissent, authored by Judge Edith Jones, is a 68-page tour de force. Here is a sample:

Requiring a voter to verify her identity with a photo ID at the polling place is a reasonable requirement widely supported by Texans of all races. . . . The majority, however, . . . concludes that there is “more than a scintilla” of evidence to support a finding that the Texas Legislature passed the voter ID law with a racially discriminatory intent. By keeping this . . . alive, the majority fans the flames of perniciously irresponsible racial name-calling.

. . .

The ill-conceived, misguided, and unsupported majority opinion shuns discernment. Because of definitive Supreme Court authority, no comparable federal court precedent in over forty years has found a state legislative act motivated by purposeful racial discrimination. . . . Yet the majority emulates the clever capacity of Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the “truth.”

. . .

Today’s result moves us another step down the road of judicial supremacy by potentially subjecting virtually every voter regulation to litigation in federal court. According to the twists and turns of the majority opinions, purposeful racial discrimination can be “inferred” even without a shred of discriminatory utterance—not even one document of thousands of pages of internal communications betrayed such purposes. . . . .

No doubt the majority believes that federal judges are well suited to regulate the electoral process. As with many judge-made “solutions,” however, today’s results will backfire. . . . [T]hese unauthorized and extra-legislative transfers of power to the judiciary disable the working of the democratic process, which for all its imperfections, best represents “we the people.”


Reader Discussion

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on August 15, 2016 at 10:25:37 am

Tl;dr: Vote Donald Trump or watch this nation and the rule of law die.

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Image of boxty
on August 15, 2016 at 11:49:23 am

We were warned 0ver 200 years ago by Thomas Jefferson that this would be the result if we ever allowed such an obviously unconstitutional doctrine as "judicial review" to take root here.
Our legislators and forebears ignored that warning and our republic has died an inglorious death as a result.
Long live our Black Robed KINGS and QUEENS of the Holy Bench!

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Image of Marvin Tyson
Marvin Tyson
on August 15, 2016 at 17:10:20 pm

The holding:

We VACATE and REMAND the Plaintiffs' discriminatory purpose claim for further consideration in light of the discussion below. If on remand the district court finds that SB 14 was passed with a discriminatory purpose, then the law must be invalidated. However, because the finding on remand may be different, we also address other arguments raised by the Plaintiffs.

We AFFIRM the district court's finding that SB 14 has a discriminatory effect in violation of Section 2 of the Voting Rights Act and remand for consideration of the proper remedy.

We VACATE the district court's holding that SB 14 is a poll tax and RENDER judgment in the State's favor. Because the same relief is available to Plaintiffs under the discriminatory effect finding affirmed herein, under the doctrine of constitutional avoidance, we do not address the merits of whether SB 14 unconstitutionally burdens the right to vote under the First and Fourteenth Amendments. We therefore VACATE this portion of the district court's opinion and DISMISS Plaintiffs' First and Fourteenth Amendment claims.

The "Voting Rights Act:"

SEC. 2. No voting qualifications or prerequisite to voting, or standard,
practice, or procedure shall be imposed or applied by any State or political
subdivision to deny or abridge the right of any citizen of the United States to vote on
account of race or color.

The operative words seem to be:

. . . imposed . . . to . . . deny or abridge . . . on account of race or color.

How far we have come from Sutherland's work on statutory interpretation in this judicial gloss on the single word - TO.

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Image of R Richard Schweitzer
R Richard Schweitzer
on August 16, 2016 at 10:56:38 am

People in Texas who are poor are given photo IDs by Texas government agents coming to their house?

Or are poor people who can't afford cars and walk or bike everywhere can walk a few miles to the country store where Texas has a government office? Or will the Texas Rangers come and drive them the tens or fifty miles to the Texas government offices and wait for them to have Texas government offices to provide them with all the free documents needed to get a photo ID?

How is it that the United States held elections for well over two centuries without phone ID?

Was George Washington elected president by voter fraud? Jefferson? Madison?

Has Texas become mostly criminal since it switched to mostly Republican; before when Republicans were in the minority, the criminals were in the minority?

I grew up in mostly Indiana in the 60s and 70s and everyone was "presumed innocent" but since Reagan, it seems like conservatives believe everyone is presumed guilty.

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Image of mulp
on August 16, 2016 at 13:30:06 pm

then again, the poor can always show their welfare cards or their EBT cards. Oops, forgot they need them to buy cigarettes and beer at my local Smoke shop!
Oh the humanity of it all!

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Image of gabe
on August 16, 2016 at 13:55:55 pm

And why is any of this a surprise?

It is about votes - plain and simple. The "L" in LBJ stood for "Landslide" Lyndon and his early election to congress in which he received more votes than registered voters. apparently, Landslide would not need to confront such difficulties in today's electoral world as we will accept mere declarations as to eligibility.

Well perhaps we are following the example of the Romans in the latter stages of their Empire and their practice of permitting everyone to vote, even conquered enemies. Then again, at least the Romans had the good sense to "conquer" them first. But Roman Senators and other elected officials of Rome did get the benefit of these "extra votes" - and all for the small sum of special dispensations or increased grain rations.
Hey, that sounds familiar doesn't it!

Rome continues to Fall!!!!!!

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Image of gabe
on August 16, 2016 at 15:31:43 pm

I wish I beleived that voting for Trump would make a difference, but I doubt it.

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Image of jbsay
on August 16, 2016 at 15:36:42 pm

The problem is not judicial review. Sorry, but pretending that legislatures are capable of conforming to the constitution is idiocy.
The problem is that Judges are obligated to apply the constitution as written - not as they wish it was.
The rule of law not man, means we change the law, by actually changing the law.

If the left feels that Voter ID should be unconstitutional - then it must change the constitution to make it so.
Not change the interpretation of the constitution.

If constitutional interpretation is sufficiently maleable for any ideology to pretend to credibly claim the constitution supports its views then the law means nothing and we have the rule of man not law.

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Image of jbsay
on August 16, 2016 at 15:49:33 pm

When washington was elected, the election officials personally knew all the voters.

Where in Texas is the polling place much closer than the nearest government office ?

I beleive every single voter ID statute - including Texas's has provisions for provisional voting without ID.

I think that most of us who support Voter ID would be happy to allow people with ID to vote and their votes to count, under conditions that they can be successfully prosecuted for Voter Fraud if they are not who they claim to be. Get them to sign an affidavit swearing they are who they claim to be, photograph them and take a thumb print so that when it is established they are not they can be prosecuted for Fraud and perjury.

Contrary to the left and the courts that have gone off their rocker, the purpose of voter ID statues is prevent voter fraud. The oppinion of some courts that that is not a concern does not alter the fact that it is a concern for voters and legislators. The courts do not get to decide what does or should concern us.

The Federal courts are getting dangerously close to overstepping.

As noted in the declaration of independence - the legitimacy of government dependes on the consent of the governed.

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Image of jbsay
on August 17, 2016 at 10:57:48 am

[…] Wow Mark Pulliam sees the world through a very different lens than I do. He calls the United States Court of Appeals for the 5th Circuit, arguably the most conservative appellate court in the nation, full of “unruly schoolchildren” and full of “enough results-oriented Obama appointees to tip the balance in close cases.” […]

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Image of “Judicial Rebellion Against Voter ID” | Election Law Blog
“Judicial Rebellion Against Voter ID” | Election Law Blog
on August 17, 2016 at 11:24:10 am

Back when Ronald Reagan was winning his landslide elections, you never saw the right worry about voter ID....Back then, there were plenty of Archie Bunker's in all 50 states....Now that many Archie Bunkers are dead and there are more people of color voting, well, its time to suppress the vote...

These voter ID scams go WAY beyond just showing a picture....Most of these suppression laws cut or eliminate early voting, cut polling places, make it so a student can't show his/her student ID to vote, yet the picture on a gun ID is acceptable....I'm waiting for a GOP lawmaker to declare that African American votes should only count as 3/5 of a vote.....

Texas's law was so suppressive that the most conservative Circuit Court in the country even struck it down...

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Image of Edward
on August 18, 2016 at 12:29:29 pm

Do you even understand what the purpose of the Three-Fifths Clause was?
It's intent was to prevent the Slaveholders from acquiring a clear ascendancy in the National congress.

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Image of gabe
on August 19, 2016 at 16:46:47 pm

"How is it that the United States held elections for well over two centuries without phone ID? - "

1776 White men with property have the right to vote, but Catholics, Jews, Quakers, and
others are barred from voting.

I'm waiting for the day a 13 year old can vote

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Image of Charlotte AINES
Charlotte AINES

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.