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Speedy appeal on voter ID law (UPDATED)

UPDATED Wednesday pm.   The state of Texas on Wednesday filed a formal notice of appeal to the Supreme Court.  This is a formal step that precedes the actual filing of appeal documents.  The notice does not indicate when those would be filed, but that could come soon.  The blog will post whatever becomes available.


The time may be short for the Supreme Court to act on the state of Texas’s power to impose a new voter photo ID law, but the state nevertheless plans to pursue a prompt appeal in hopes of a quick final decision, perhaps during the Justices’ current Term.  The state got permission on Monday to pursue an immediate appeal from a three-judge U.S. District Court in Washington.  That court had ruled against the voter ID law in August.

Texas officials already have taken steps to try to get the Justices to rule during the current Term on new redistricting plans for the Texas delegation in the U.S. House of Representatives and for the two houses of its state legislature.  The Justices will consider that appeal at their January 4 Conference, after the state gave up some of its filing rights in order to advance the case.  That would be in time, if the Court accepts review, for a decision before the Justices’ summer recess in late June.  (That case is Texas v. United States, docket 12-496).   If the Court were to move ahead this Term on one or both of the new Texas cases, that would mean a further exploration of the scope — and even the constitutionality — of Section 5 of the Voting Rights Act of 1965.

The Justices already have taken on an Alabama case that directly tests the constitutionality of Section 5.  That case (Shelby County v. Holder, docket 12-96) is now set for oral argument on February 27.   The Court, of course, has the option of simply sitting on the Texas redistricting and voter ID cases until after the Shelby County case is decided, but Texas is pressing to get resolution of both of its cases as soon as possible.

The District Court, in its August 30 decision, refused to allow Texas to enforce its new voter ID law (Senate Bill 14), finding that it would discriminate against minority voters, particularly those who are poor, in violation of Section 5.  Without that court’s preclearance, Texas cannot implement the law.   Texas also has been denied preclearance, under Section 5, of its new congressional and state legislative districting maps.  That ruling, also from a three-judge district court in Washington, came on August 28.

Although Texas officials filed an appeal with the Justices in the redistricting case in October, they had not been legally free — until Monday — to start their appeal on the voter ID case.  That’s because the district court had split that case into two phases: first, on whether to give preclearance to the law under Section 5, and, second, if preclearance were denied, whether Section 5 was unconstitutional.  The case was moving forward in the District Court with the briefing on the constitutional issue when the Supreme Court on November 9 announced that it was taking up the constitutionality of Section 5 in the Shelby County case.

After that, the district court raised the question of whether it should do nothing further on the constitutional dispute in the voter ID case, until after the Court had decided Shelby County.  When it appeared that the district court might, in fact, put that question on hold, Texas then asked the district court to issue a final order to implement its denial of preclearance of Senate Bill 14 — the first phase issue.   That is what the district court did on Monday.   In addition, the district court declared that no further proceedings would occur there on the constitutional issue until after the Supreme Court ruled in Shelby County.

Texas is pressing for fast resolution because it wants to be able to use the voter photo ID requirement, if it survives in court, in state elections to be held in May and September of next year.  If the Supreme Court does not rule on that law in the current Term, the state could not use it in either of those elections.  The state, and the other parties involved in the voter ID case, would have to move with unusual dispatch to get that case ready for a ruling in the current Term.

Recommended Citation: Lyle Denniston, Speedy appeal on voter ID law (UPDATED), SCOTUSblog (Dec. 17, 2012, 11:38 PM),