Explaining Justice Breyer’s Surprising (Non-)Vote in the Texas Voter ID Case

Justice Breyer did not join in Justice Ginsburg’s fiery 6-page dissent in the Texas voter id case the Supreme Court just decided. The majority let Texas’s law go into effect, despite a final judgment from a federal district court finding Texas engaged in intentional racial discrimination in voting, and violated both the Equal Protection Clause and the Voting Rights Act.

Justice Ginsburg’s dissent was joined by Justice Kagan and Justice Sotomayor but not Justice Breyer, the other liberal on the Court. Why not?

We don’t know for sure, but here are the possibilities, put in order of what I think is most to least likely:

1. Justice Breyer still dissented, but did not want to publicly state (Justices do not always state their votes in these orders), perhaps because he disagreed with one or more aspects of Justice Ginsburg’s dissent.

2. Justice Breyer still dissented, but was not available until 5 am to review to see if he agreed with Justice Ginsburg’s dissent.

3. Justice Breyer agreed with the majority, because he believes more strongly in the Purcell principle (or he agrees Texas should win on the merits—which seems less likely).

4. Justice Breyer disagreed with the majority, but either he did not publicly dissent or voted with the majority for strategic reasons, as could have happened before in the North Carolina case.  This seems less likely–in the North Carolina case, the Justices knew the Wisconsin case was in the wings. There’s nothing else now on this same Purcell issue coming up, nor any reason to think that the next set of Purcell cases in future elections will be those that will help to protect voting rights.

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