Saying that the spread across the country of new laws to restrict voting rights will create new tests of constitutionality for the Supreme Court, the Obama administration on Wednesday evening asked the Justices in the meantime to bar Texas from using its strict new voter ID law. The government’s application was one of three (the others are here and here) seeking delay of the new law — a delay that clearly would last through this year’s election, including early voting that starts Monday in Texas.
The challenges followed swiftly after the U.S. Court of Appeals for the Fifth Circuit voted to allow the law to be in full effect, after having never been used in a federal election. The pleas for delay to the Supreme Court do not ask for an immediate ruling on the law’s constitutionality, leaving that to the Fifth Circuit for now instead.
A federal judge in Corpus Christi ruled last week that the voter ID requirement was the result of intentional racial discrimination, violating both the Constitution and the Voting Rights Act, and that it also amounted to an unconstitutional poll tax because of the fee it imposed to obtain a valid ID for voting. The state promptly obtained a delay of that decision by the Fifth Circuit, which cited the nearness of voting as its main reason.
The arrival of the Texas dispute at the Supreme Court Wednesday was the latest of four requests to block new or continued enforcement of voting changes. The other three brought mixed results: the Court stopped a voter ID law in Wisconsin, but permitted different restrictions on voting in North Carolina and Ohio.
Civil rights groups have called the voter ID law in Texas the strictest in the nation. The federal government and the others seeking delay told the Court that there are some 600,000 registered voters in Texas — mainly black and Hispanic voters — who do not have a valid ID and thus would not be allowed to vote this year.
The government’s filing sought to enlarge the importance of the fight over the Texas law. It said: “Given the increasing prevalence of restrictive voter identification practices across the country, and the importance of subjecting such laws to meaningful judicial review, this case could — and likely would — be reviewed in this Court upon the final disposition on appeal if the law is upheld.”
Relying upon the Corpus Christi judge’s order on how the state should conduct voting this year, the government and the other challengers said the state should go back to a voter qualification process that it had used in federal general elections in the state for a decade. That process does not require the specific forms of voter ID that are mandated by the new law.
Texas put the new law into use in three state elections, doing so initially soon after the Supreme Court in its 2013 decision in Shelby County v. Holder limited the powers of the federal government and of federal courts to monitor changes in voting procedures in states that had a history of racial discrimination.
The Justice Department and civil rights groups, along with some Texas officeholders, challenged the Texas voter ID law in what they hoped would be a test case for reinstating judicial supervision of voting changes in states which adopted new laws that could be challenged as racially discriminatory.
That effort succeeded, at least so far, in the ruling by the Corpus Christi judge. After striking down the voter ID law, the judge said she would move on next to consider how to proceed toward a decision on whether to require Texas to get clearance in court for future voting laws. For how, she said, Texas would have to get her approval for any measures it took to remedy the violations she had found.
The Justice Department’s participation in the new requests to the Supreme Court marked the first time it had joined in the latest round of applications to the Justices for delays of new restrictions on voting.
The applications filed Wednesday were submitted to Justice Antonin Scalia, who handles emergency legal matters from the geographic region of the Fifth Circuit, which includes Texas. Justice Scalia called for responses from Texas, to be filed by 5 p.m. (Eastern time) on Thursday.
Justice Scalia can act on the applications on his own, or share the decision about them with his colleagues. The full Court has acted on the three prior pleas for delay of voting laws.