Texas Ups Ante in Its Voter ID Case, Says Voting Rights Act is Unconstitutional: Case Could Reach SCOTUS Before Election

Texas filed an amended complaint today [UPDATE, actually Tuesday] in its action to overcome the US Department of Justice’s objection to its voter identification law. The complaint now says that the Voting Rights Act section 5, as amended in 2006, “exceeds the enumerated powers of Congress and conflicts with Article IV of the Constitution and the Tenth Amendment.”

This is a very big deal.  I had expected South Carolina to do this in its own challenge to DOJ denial of preclearance of its voter id law.  For some reason, South Carolina did not do so; nor did Texas in its initial complaint.

Here’s what I wrote in Slate about the move I expected from South Carolina; it applies equally to Texas:

While many read the court’s 2009 decision as an invitation for Congress to fix or update Section 5, Congress has done nothing. Meanwhile, the constitutional question has been percolating in the lower courts, and most knowledgeable observers expected the issue to get to the court in the next few years.

But it now seems pretty likely that the South Carolina case will leapfrog over those others, and ask the Supreme Court to consider the constitutional question soon, in the same term that the court is likely to decide on the constitutionality of health care legislation, Texas’ new redistricting plans, and Arizona’s controversial immigration measure.

While you might expect the Supreme Court to try to duck the potential for yet another blockbuster decision this term, a procedural oddity of the Voting Rights Act makes it unlikely. Most cases come up to the Supreme Court review through a petition for a writ of certiorari. The court has total discretion about whether or not to hear such cases. But a very small minority of cases—almost all of them election cases—come to the Supreme Court on a direct appeal from a three-judge court. South Carolina’s expected litigation over its voter ID law will go before just such a court in Washington, D.C., with direct appeal to the Supreme Court. Unlike an ordinary denial to hear the case, a Supreme Court decision not to hear an appeal from a three-judge court is a decision on the merits, an indication that the lower court got the decision right. (That’s not true with cert. denials.)

If South Carolina argues in court that it is unconstitutional to require it to submit its voter ID law for federal approval, and the three-judge court rejects that argument, it is hard to imagine the Supreme Court conservatives refusing to hear that case. And further, because this is an election-related case, it is likely to be fast-tracked like the Texas redistricting case. South Carolina is claiming it needs to use voter identification in the upcoming election to preserve the integrity of its electoral process. DoJ is blocking the state’s law. This almost perfectly tees up the issue of federalism and state sovereignty.

Why did Texas change its strategy now and make a frontal attack on the VRA?  Perhaps Greg Abbott expects he’s going to lose big in the Texas redistricting case before a three-judge DC court, and he believes that the voter id case will be an easier and cleaner way to make a frontal attack on the VRA than through the messy and complex Texas redistricting mess.  (If the VRA section 5falls for Texas’s voter id law, it potentially falls for the Texas redistricting law, for all other Texas election laws, and for all other election laws in jurisdictions subject to section 5 preclearance.)

It is really late in the SCOTUS term.  So maybe this does not make it to SCOTUS before adjournment in June.  But if Texas wants to use its voter id law in November, the Court could well take it up even in September, before the usual October start of the Court term.

Wow. A major election law case just got a whole lot bigger.

More coverage from Texas Redistricting, the Austin American-Statesman, and the San Antonio News-Express.

UPDATE:  Want to put the voter id battle in a larger context? Check out The Fraudulent Fraud Squad sneak preview of my forthcoming book The Voting Wars,



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