The U.S. Fifth Circuit Court of Appeals finally waded into the Texas voter ID law case on Tuesday, and based on how things went, it's almost impossible to guess how the Fifth will rule.
Texas has one of the strictest voter ID laws in the country. The law, Senate Bill 14, was passed by the state legislature and signed into law by then-Gov. Rick Perry in 2011, requiring all voters to present one of the listed acceptable forms of photo ID in order to vote.
Opponents of the law have maintained that the old voter ID requirements, where people could show up with any ID, down to a utility bill, worked perfectly and that people never used the loose requirements to do any sneaky voting.
The defendants argued that the law prevents voter fraud by ensuring that those who vote are who they claim to be based on their photo ID.
The law was subsequently blocked as racially discriminatory under Section 5 of the Voting Rights Act in 2012, right until the U.S. Supreme Court declared Section 5 of the Voting Rights Act unconstitutional in 2013, allowing the law to go back into effect.
After the law was allowed to go into effect suits were filed to try and block the Texas law under Section 2 of the Voting Rights Act and the Constitution and the cases were lumped together under Veasey v. Perry. Last October a federal district judge found that the law violates Section 2 by denying African Americans and Latinos an equal chance to cast their ballots. U. S. District Court Judge Nelva Gonzalez Ramos, a President Barack Obama appointee, also found the law violates the Constitutional right to vote and acts as a poll tax. Ramos put an injunction on the law that required Texans to go back to their pre-SB 14 voter requirements.
However, then-state Attorney Gen. Greg Abbott appealed to the Fifth Circuit (before a different trio) and got a stay placed on the Ramos injunction, allowing Texas to use the voter ID law requirements for the November 2014 election. The Fifth cited the timing of the election -- that the election was coming up fast -- as its reason for issuing the stay:
We must consider this injunction in light of the Supreme Court's hesitancy to allow such eleventh-hour judicial changes to election laws. Particularly in light of the importance of maintaining the status quo on the eve of an election, we find that the traditional factors for granting a stay favor granting one here.
The appeal bounced to the Supreme Court but the split court denied applications to vacate the stay, despite a dissent written by Justice Ruth Bader Ginsberg with Justices Sonia Sotomayor and Elena Kagan joining her.
Now the case itself is back at the Fifth Circuit -- all of the previous judicial back and forth was over stays and injunctions, not the case itself, mind you.
A panel of three judges listened to the appeals. The Fifth Circuit is known for being one of the most conservative courts in the country but the trio of judges that heard the voter ID case was comprised of two Democratic appointees and one Republican appointee. The panel includes Chief Judge Carl E. Stewart appointed by President Bill Clinton, District Court Judge Nannette Brown was appointed by President Barack Obama and Judge Catarina Haynes, appointed by President George W. Bush. Brown is a federal district court judge from the Eastern District of Louisiana sitting in by designation. (Judges are called to "sit by designation" either to help ease the court case load or to give the visiting judge some experience.)
With a different panel the ruling on this issue might have been a foregone conclusion -- or at least as foregone as one can ever get with judges since there's always a chance they might just do the unexpected -- but this panel means that the case is decidedly up in the air. On top of that Haynes asked pointy and pointed questions of both sides on Tuesday but the other two judges were pretty quiet during the oral arguments. (The questions these judges toss out there tend to be one of the few ways to get an idea of how they're approaching a case.)
Each side got about 20 minutes to argue their case before the three judges. Scott Keller, Texas Solicitor General, argued for the State of Texas. Erin Flynn argued for the U.S. Department of Justice, and Chad Dunn argued for the League of United Latin American Citizens and U.S. Rep. Marc Veasey, a Fort Worth Democrat. The judges usually pepper these arguments with their own questions and this time around was no exception.
Haynes pointed out to Keller that even though Texas doesn't have any record of using this law specifically to keep minorities from voting that doesn't clear the state. "You seem to be looking for some confession -- in an email: 'Let's discriminate,'" she told Keller, according to the Associated Press.
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Haynes also suggested that maybe the case should be sent back to district court for further consideration, AP reports. She pointed out that state legislators have filed bills that would expand the acceptable forms of photo ID.
Haynes also noted that last year's elections were conducted under the new voter ID laws, and asked Erin Flynn of the Justice Department if they should look at the last election to get an idea of the law's impact. "Turnout number doesn't capture the deterrent and suppressive effect that a voter ID law has," Flynn countered, according to AP.
Meanwhile the other two judges didn't say much. There's no word on when the Fifth panel will issue a decision on the appeal.
Once they do either side can appeal to have the Fifth might hear the case en banc (that means the full predominantly conservative-leaning court could decide to hear the case.) After that either side can appeal to the Supreme Court and see if the Nine will agree to hear the case. That's the last judicial stop on the line.