Breaking: TX Seeks En Banc Review in 5th Circuit Voter ID Case

You can read the petition for en banc review here. The effect of this filing is to stay the mandate and to put the remand of the case on hold, at least for now.  It is not clear if the 5th Circuit will take this en banc (it is not clear if the votes are there), but my guess is that if it does not that Texas is likely to ask the Supreme Court to review the case, and I think such review would be fairly likely to resolve issues about the proper scope of Voting Rights Act section 2 in vote denial cases.

Here is Texas’s explanation for why it believes en banc review is proper:

En banc review is necessary to maintain the uniformity of the Court’s decisions and to consider questions of exceptional importance. In holding that SB14 violates Voting Rights Act §2 based on disparate rates of ID possession, socioeconomic disparities, and historical discrimination—without any evidence of depressed political participation by minority voters—the panel’s decision conflicts with this Court’s decision in League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc), the Seventh Circuit’s decision in Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), and the Ninth Circuit’s decision in Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc). The panel’s expansive interpretation of §2 presents two questions of exceptional importance: first, whether the text of §2 imposes liability without proof that the challenged voting qualification causes any inequality in voting opportunities on account of race; and second, if it does, whether the statute exceeds Congress’s power to enforce the Fifteenth Amendment.

The panel’s decision creates two additional conflicts. By characterizing the policy behind SB14 as “tenuous” because in-person voter fraud is “rare,” the panel’s decision conflicts with Crawford v. Marion County Election Board, 553 U.S. 181 (2008), and Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013). And by vacating the district court’s finding that SB14 was enacted with a racially discriminatory purpose, but remanding for further consideration even after a complete trial and suggesting that the district court could reopen the evidence, the panel’s decision conflicts with this Court’s decisions in Meche v. Doucet, 777 F.3d 237, 246-47 (5th Cir. 2015), and Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir. 2014), cert. denied, 135 S. Ct. 2859 (2015).

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