Clear-eyed dissent from Supreme Court’s ruling to allow Texas voter ID law

October 18, 2014

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Before dawn on Saturday morning, the Supreme Court issued a terse, unsigned ruling that, in effect, endorsed Texas’s voter-ID law, the most restrictive such law in the nation.

On October 9, in a 147-page opinion that followed a two-week trial on the facts, the Federal District Court in Corpus Christi had struck down the law, known as Senate Bill 14, as patently discriminatory, the equivalent of a poll tax. A week later that court’s injunction was overturned by a three-judge panel of the U.S. Appeals Court for the Fifth Circuit.  It was this stay of the injunction — in effect a decision to let the voter-ID law go into effect — that  the Supreme Court left in place in on Saturday with its 57-word decision. The decision did not articulate the Court’s reasoning, but a blistering dissent made clear that its basis was not Senate Bill 14, but rather the confusion that a change so close to the election might create.

Excerpts of that dissent, written by Justice Ruth Bader Ginsberg and  joined by justices Sonia Sotomayor and Elena Kagan, are below. For ease of reading citations are omitted, but they can be found in the full text here.

I would not upset the District Court’s reasoned, record-based judgment, which the Fifth Circuit accorded little, if any, deference … The fact-intensive nature of this case does not justify the Court of Appeals’ stay order; to the contrary, the Fifth Circuit’s refusal to home in on the facts found by the district court is precisely why this Court should vacate the stay….

[T]here is little risk that the District Court’s injunction will in fact disrupt Texas’ electoral processes. Texas need only reinstate the voter identification procedures it employed for ten years (from 2003 to 2013) and in five federal general elections. To date, the new regime, Senate Bill 14, has been applied in only three low participation elections—namely, two statewide primaries and one statewide constitutional referendum, in which voter turnout ranged from 1.48% to 9.98%. The November 2014 election would be the very first federal general election conducted under Senate Bill 14’s regime. In all likelihood, then, Texas’ poll workers are at least as familiar with Texas’ pre-Senate Bill 14 procedures as they are with the new law’s requirements….

Senate Bill 14 replaced the previously existing voter identification requirements with the strictest regime in the country. The Bill requires in-person voters to present one of a limited number of government issued photo identification documents. …Those who lack the approved forms of identification may obtain an “election identification certificate” from the Texas Department of Public Safety (DPS), but more than 400,000 eligible voters face round-trip travel times of three hours or more to the nearest DPS office. Moreover, applicants for an election identification certificate ordinarily must present a certified birth certificate. A birth certificate, however, can be obtained only at significant cost—at least $22 for a standard certificate sent by mail. And although reduced-fee birth certificates may be obtained for $2 to $3, the State did not publicize that option on DPS’s Web site or on Department of Health and Human Services forms for requesting birth certificates.

On an extensive factual record developed in the course of a nine-day trial, the District Court found Senate Bill 14 irreconcilable with §2 of the Voting Rights Act of 1965 because it was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result. The District Court emphasized the “virtually unchallenged” evidence that Senate Bill 14 “bear[s] more heavily on” minority voters. In light of the “seismic demographic shift” in Texas between 2000 and 2010, making Texas a “majority-minority state,” the District Court observed that the Texas Legislature and Governor had an evident incentive to “gain partisan advantage by suppressing” the “votes of African-Americans and Latinos.”

The District Court also found a tenuous connection between the harms Senate Bill 14 aimed to ward off, and the means adopted by the State to that end. Between 2002 and 2011, there were only two in-person voter fraud cases prosecuted to conviction in Texas. Despite awareness of the Bill’s adverse effect on eligible-to-vote minorities, the Texas Legislature rejected a “litany of ameliorative amendments” designed to lessen the Bill’s impact on minority voters—for example, amendments permitting additional forms of identification, eliminating fees, providing indigence exceptions, and increasing voter education and funding—without undermining the Bill’s purported policy justifications. Texas did not begin to demonstrate that the Bill’s discriminatory features were necessary to prevent fraud or to increase public confidence in the electoral process…. On this plain evidence, the District Court concluded that the Bill would not have been enacted absent its racially disparate effects….

Under Senate Bill 14, a cost attends every form of qualified identification available to the general public. Texas tells the Court that any number of incidental costs are associated with voting. But the cost at issue here is one deliberately imposed by the State. Even at $2, the toll is at odds with this Court’s precedent. And for some voters, the imposition is not small. A voter whose birth certificate lists her maiden name or misstates her date of birth may be charged $37 for the amended certificate she needs to obtain a qualifying ID. Texas voters born in other States may be required to pay substantially more than that.

The potential magnitude of racially discriminatory voter disenfranchisement counseled hesitation before disturbing the District Court’s findings and final judgment. Senate Bill 14 may prevent more than 600,000 registered Texas voters (about 4.5% of all registered voters) from voting in person for lack of compliant identification. A sharply disproportionate percentage of those voters are African-American or Hispanic.

Unsurprisingly, Senate Bill 14 did not survive federal preclearance under §5 of the Voting Rights Act…. [R]racial discrimination in elections inTexas is no mere historical artifact. To the contrary,Texas has been found in violation of the Voting Rights Act in every redistricting cycle from and after 1970. The District Court noted particularly plaintiffs’ evidence—largely unchallenged by Texas— regarding the State’s long history of official discrimination in voting, the statewide existence of racially polarized voting, the incidence of overtly racial political campaigns,the disproportionate lack of minority elected officials, and the failure of elected officials to respond to the concerns of minority voters.

The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters. To prevent that disenfranchisement, I would vacate the Fifth Circuit’s stay of the permanent injunction ordered by the District Court.

 

 

 

PHOTO: A general view of the U.S. Supreme Court building is seen in Washington October 5, 2014. REUTERS/Jonathan Ernst

19 comments

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The only vote the TX law suppresses is the vote of illegal aliens.

And it’s worth it to note, that the same people complaining about difficulty to obtain requested ID forms, readily produce those IDs when applying for Medicaid, food stamps, and other public benefits.

Posted by Nagant | Report as abusive

Well, classic American Bigotry at work, another way for politicians to manipulate the system, which is already owned, appeal this until the other side dies from old age.

Posted by Maestro1 | Report as abusive

Every detail of your comment is factually wrong, Nagant. You can look it up.

Posted by Jim Gaines | Report as abusive

Why is gaining and showing a Voter ID card not an undue burden for citizens in other democracies such as India, the largest democracy on Earth, where even the poorest in those massive shanty towns have voter IDs. What are the US’s excuses except to perpetuate voter fraud and corruption?

Posted by Galaphile0125 | Report as abusive

Good job on the Supreme Court decision. Voter id should be the rule in all states.

Posted by goldminor | Report as abusive

republican leaders have so politicized the justice system in texas that it’s now equivalent to something you would see in a banana republic, maybe even worse. they know that if they get a ruling they don’t want, they can run it up the chain to the Fifth Circuit, which will rule in their favor. if it then goes to the u.s. supreme court they find five friendly justices there, too. the Fifth Circuit is a stronghold of the far right, and so weak intellectually that it is hard to believe most of the justice went to law school. i invite all of you to read the texas attorney general’s just-filed motion to keep gay marriage illegal. i would say that it borders on ridiculous, but it goes way over the border — it is pure balderdash. yet, the Fifth Circuit has ruled in favor of equally bad motions from the Texas AG (who is about to become governor, btw) and will likely rule for this one, too. folks of good will, come help us. it’s like berlin 1936 down here.

Posted by westu | Report as abusive

Galaphile0125: because in countries like India, everyone is *required* to have a national ID card from an early age, and you don’t have to travel 300 miles to do it. Coincidentally, the same conservatives who are the strongest proponents of requiring voter ID are also the ones who freak out whenever a national ID (which would resolve this issue) is proposed. Because of course that would mean more intrusive federal government, whereas these laws mean that racist state governments can do whatever they want.

Posted by RobertHoward | Report as abusive

Calling it “clear-eyed” doesn’t make it so.

Posted by CoFunkin | Report as abusive

I worked at my local polling place in Seattle for the very last in-person election held here (Washington state now has all-mail voting). We were required to ask for photo ID, which caused no one any concern except for a few who had to walk back home because they forgot their wallets. It never occurred to anyone that an ID requirement might be discriminatory or suppress the vote. The requirement simply seemed reasonable these days. It sounds as though SCOTUS may be concluding the same thing.

Posted by janejohn | Report as abusive

The requirement that voters produce ID -proof that he/she is who they claim- as a pernicious right wing effort to disenfranchise presumably pro Democrat voters, is a legal straw man of the American Left that refuses to go away.

For perspective, try voting in say, The Netherlands, Sweden, France or Canada without proper voter ID and registration on the appropriate voters list, and see how far you get. You will be turned away, because in most jurisdictions outside the US, the voter ID requirement has been accepted as the best means of prevention election fraud.

The US Left, including the three dissenting SCOTUS judges, are barking up the wrong civil liberties tree.

Posted by tetris | Report as abusive

When travel and hotels do not require photo identification then voters might be allowed a pass.

Posted by elsewhere | Report as abusive

By law, you have to show your government-issued ID card to buy alcohol, obtain employment, etc, etc. Why should it be any different when it comes to protecting the integrity of our country’s democracy? You say this could affect voter turnout among the poor, but please, this is just a sorry excuse to allow illegal immigrants to corrupt our political system, and vote for liberals who support open borders and government handouts.

Posted by BigRocket | Report as abusive

The law that the Texas court overturned immediately prior to a national election,is essentially the same as the laws that SCOTUS has previously approved in other states. That is why the fifth circuit granted the stay. The law has a high probability of being upheld on appeal, and changing the rules two weeks before an election is disruptive.

Posted by emb21 | Report as abusive

Why in the world would ANYONE be opposed to someone having to identify him/herself prior to voting? If it’s really that hard and discriminatory to get an ID, then are bars racist and discriminatory? Are insurance companies all racist and discriminatory? Are airlines racist and discriminatory? For God’s sake, people attending MICHELLE OBAMA’S BOOK SIGNING were required to show PHOTO ID. How racist and discriminatory!!!!

WHAT ELSE CAN BE DEDUCED OTHER THAN DEMOCRATS WANT TO CHEAT THE SYSTEM?

DEMS, is it possible that your low voter turnout is due to failed policies? Nah, of course not. It must be those eeeeeeevil Republicans, blocking the vote!

I USED TO BE A DEMOCRAT. Then I had to EARN a living. I realized that my vote was being co-opted for a liberal agenda that was ANYTHING but liberating.

Posted by eddieroo | Report as abusive

a lot of folks keep referring to photo id laws in other countries or states. Most of the references are incorrect..

Canada does not REQUIRE a photo ID
Washington State does not Require a photo ID
India does not require photo id
etc etc..

The key thing that is missed in this debate – is that the purported reason for the law – election fraud – is a fraud in itself. Election fraud is not a problem in the usa. If you think otherwise – give me one example of an election that was won using voter fraud in the last 30 years??

Posted by michaelryan | Report as abusive

There are SEVEN forms of ID that are accepted for voting. If these activist groups want to make a difference, then they should be transporting people to offices where they can obtain one of the seven forms of ID, if qualified.

Posted by AZreb | Report as abusive

In Illinois it doesn’t matter, the voting machines only collect votes for democrats, no matter how much ID you show. LOL!

Posted by Timmy2001 | Report as abusive

Oh beg pardon Mister Gaines, just wondering …

Will you now be revising this column or its title now that we’ve learned today that “Justice” Ginsburg’s dissent is being scrubbed of the factually incorrect statements she used to justify her blithering idiocy in her dissent?

Truly amazing that a historical document that demonstrate the intellectual vapidness of the leftist jurist who wrote it can be altered in this fashion.

“Clear-eyed” indeed.

Posted by uncledirtnap | Report as abusive

Here is a simple idea. If you are going to vote in American elections, would it not be nice to know that you really are an American citizen to begin with? Is that concept so hard to grasp?

If America now believes that anyone is eligible to vote in their elections, then why bother to have them in the first place? The American voting process is based on the simple idea that Americans are voicing their opinion on who they want in their government, are they willing to accept higher taxes for the payment of infra-structure projects, and in special cases, the removal of officials that are no longer fit for office. Those are some of the reasons Americans vote. This right, under no circumstances, should be considered a right of those in America illegally or those that have not bothered to go through the process of being allowed to vote in American elections.

Posted by visailian | Report as abusive