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New challenge to Texas voter ID law (UPDATED)

UPDATED Tuesday 4:01 p.m.   Justice Thomas on Tuesday told the state of Texas to file a response to this application by 3 p.m. on April 11.


The long-running controversy over a Texas voter ID requirement — a dispute that once kept Justice Ruth Bader Ginsburg up all night writing a dissent — returned to the Supreme Court on Friday as challengers sought again to stop the law’s enforcement.  The application (Veasey v. Abbott, 15A999) can be found here; it argued that the law is the strictest in the nation in its demands for identification before a voter may cast a ballot.

Texas has already had its primary election this year, but there is a run-off election set for May 24.  The challengers conceded that it was too late to stop the use of the requirement for that election, but said their new plea was well in time to allow the Court to act before preparations begin for the November 8 general election.  The law has been in effect for several elections in the state.

The application was filed with Justice Clarence Thomas, who handles emergency legal matters from the geographic area of the Fifth Circuit, which includes Texas.  Thomas has the option of acting on his own or sharing the issue with his colleagues.  It would take the votes of five Justices to block the Texas law, if the issue goes to the full Court.

The Texas law was first passed five years ago, but has been under continuous challenge, and has been found unconstitutional as racially discriminatory by three federal courts — a federal trial judge and two unanimous three-judge panels of the Fifth Circuit.  However, the law has continued in effect because of temporary orders permitting enforcement, including one by the Supreme Court in October 2014, dividing the Justices six to three.  (The October 2014 action was released shortly after 5 a.m., following Ginsburg’s work throughout the night on the dissenting opinion.)

Currently, the law is in effect because the latest three-judge Fifth Circuit ruling against it has been set aside, while the full Fifth Circuit conducts its own review.  A hearing is set before the en banc Fifth Circuit on May 24.

Last week, the challengers — officeholders and voters in Texas — asked the Fifth Circuit to lift the stay order that allows enforcement.  In response, that court said the request would be considered along with other issues when the case comes up for en banc consideration.

The challengers said they were seeking Supreme Court action to block the ID requirement at this point to try to compel the state to start taking the steps necessary to prepare for a November election without the requirement.  The state could remain flexible in its arrangements, the application argued, in case the ID mandate were upheld by the en banc Fifth Circuit.

Each time the challengers have gone into court to try to put the ID law on hold, they have argued that some 600,000 Texans — mainly, black and Hispanic voters who otherwise are eligible to vote — do not have the kind of identification documents that would satisfy the strict law.  The Supreme Court dissenters also relied on that argument when the Court left the requirement in effect for the November 2014 elections.

Although the challengers anticipated that the state would respond by urging the Supreme Court to leave the requirement in effect until the en banc Fifth Circuit rules, the application said that would be too late in this year’s election cycle to allow the arrangements for voting in November without the requirement.

The state, the applicant argued, cannot show that it is likely to successfully defend the requirement’s validity.  “Seven of seven federal judges to consider SB 14 [the law’s formal designation] have held that the law has a discriminatory effect on minority voters.”

Thomas is likely to call for a response from Texas before he or the full Court acts on the application.


Recommended Citation: Lyle Denniston, New challenge to Texas voter ID law (UPDATED), SCOTUSblog (Mar. 25, 2016, 2:52 PM),