Still the only voter ID anyone should need
The Supreme Court issued orders from its January 19 conference this morning. After granting review in two cases from that conference last week, the justices did not add any new cases to their merits docket today. But there was one notable denial on today’s order list: Abbott v. Veasey, the challenge to a Texas law that requires voters to present specific forms of government-issued photo IDs to cast a ballot. The plaintiffs, including the federal government, argued that the law violates Section 2 of the Voting Rights Act, which bars voting practices or procedures that discriminate based on race. The lower courts agreed, and the state asked the Supreme Court to take up the case, but (after considering the case at three consecutive conferences) the justices declined to do so.
In a relatively unusual move, Chief Justice John Roberts issued a separate statement regarding today’s denial of review. Roberts suggested that, although the court will not take up the case right now, it could still do so in the future. He emphasized that the issues on which the state had asked the justices to weigh in – whether the legislature passed the voter ID law with an intent to discriminate and whether the law violates the federal Voting Rights Act – have not yet been finally determined by the lower courts, where proceedings are still ongoing. When those issues have been decided, Roberts noted, the state can always come back to the Supreme Court. At that point, he stressed, the two issues “will be better suited” for the court’s review – and, although he did not acknowledge it, the court is likely to have a ninth justice, appointed by President Donald Trump.
If the case does eventually return to the Supreme Court, the state could also have an important new ally: the federal government. Although the Obama administration had been one of the plaintiffs challenging the Texas law, on Friday the U.S. Department of Justice asked the federal district court handling the case to delay a hearing, scheduled for tomorrow, for 30 days. “Because of the change in administration,” the Department of Justice explained, the department “also experienced a change in leadership. The United States requires additional time to brief the new leadership of the Department on this case and the issues to be addressed at that hearing before making any representations to the Court.” Although there is no way to know for certain until the Department of Justice makes additional filings, Friday’s filing seems to at least leave open the possibility that the federal government could change its position on the Texas voter ID law.
See here for the background. In the short term, this means that elections will continue to be conducted as they were this past November, with more options available for people who do not have one of the “approved” forms of ID. The forthcoming hearing on voter ID in Corpus Christie is for a ruling on the intent of the law, which could have the effect of negating it altogether. However, there is a lot more in play here, as Rick Hasen explains.
In the short term this is good news for Texas voters (who get the benefit of the softened Texas voter id rules ordered by the Fifth Circuit and trial court) and for voting rights activists, who have the benefit of a Section 2 precedent from the Fifth Circuit that helps to strike down some of these more restrictive laws. And the trial court gets to make the record on whether Texas passed its law with a discriminatory purpose.
In the long run, however, things are much less certain. Either in this case, and/or in the North Carolina voting case (cert. petition now pending), the Court could eventually rein in the meaning of Section 2 (both intent and effect) to deal with restrictive voting laws. Within a few years, I expect the Court will likely do so, making it harder to challenge these laws and encouraging more Republican legislatures to enact similar laws.
So we’ll just have to see. That next hearing in February will tell us a lot about what may happen next. A statement from the Lone Star Project is here, a statement from MALC is here, and the Chron, Daily Kos, and the Press have more.