UPDATE Friday a.m. A reply brief was filed late Thursday by challengers to the Texas law. It can be read here. This post now includes a link to the state’s opposing brief, as filed Thursday evening.
Accusing some of the challengers to Texas’s voter ID law of rushing their case to an early trial to create an artificial “emergency,” state officials urged the Supreme Court on Thursday afternoon to leave that law in operation through this year’s general election — with early voting starting next Monday.
The law, the state’s legal response said, has been in operation for fifteen months, which was the status quo that a federal judge in Corpus Christi disturbed when she barred enforcement of the law last week, just nine days before voting was to begin. The judge, the state argued, should have held off with her decision until after the elections this November.
Some of the Texas officeholders and civil rights groups who filed court challenges to the voter ID requirement, the state said, “insisted on a September trial that would produce a final judgment only days before the start of early voting. And they insisted on this September trial date over the objections of the Department of Justice and nearly every other group of private plaintiffs — each of whom wanted a trial in early 2015.”
That kind of “opportunistic behavior,” the legal brief said, should not now be rewarded by the Supreme Court with an eleventh-hour delay of the voter ID requirement.
The brief relied heavily — as did the U.S. Court of Appeals for the Fifth Circuit in permitting the state law to remain in operation — on a 2006 decision by the Supreme Court cautioning lower courts not to order changes in election procedures close to the time that voting would begin.
Taking on the Corpus Christi judge’s decision against the ID requirement, state officials argued said that her findings were “preposterous.” There was no evidence that any member of the Texas legislature had pressed for enactment of the law out of a desire to discriminate against black and Hispanic voters, the officials contended.
The brief directly contested the specific finding by the judge — a point on which the Department of Justice and other challengers relied strongly in seeking a delay of the ID law — that the requirement will mean that some 600,000 registered voters will not have the kind of ID they would need to be able to vote this year. There is no “reliable evidence” of such an impact, the officials asserted. That number, it added, was constructed by a flawed system of matching statistics comparing voter registration data with data about the number of Texas voters having the kind of ID cards that would satisfy the law. “Anyone who failed to match was declared to be ‘disfranchised,'” the state commented.
Noting that the Supreme Court had upheld a voter ID law as long ago as 2008, in an Indiana case, the state argued that “a legislature is not racist for enacting a voter requirement that the Supreme Court has found to serve legitimate state interests — even if that requirement is alleged to have a disparate impact on racial minorities.”
Besides, the state said, “voter identification laws are popular (as evidenced by their enactment in numerous states).” In addition, it asserted, the Texas legislature approved the requirement “as a means to deter and detect fraud and improve public confidence in the election process.”
The requests by the Justice Department and the others challenging the Texas law are in the hands of Justice Antonin Scalia, who handles emergency legal matters from the geographic area that is the Fifth Circuit, including Texas. It is up to Scalia to decided whether to act alone, or to share action with his colleagues.