5th Circuit Motions Panel, on 2-1 Vote, Allows Texas to Enforce Its Revised ID Law Pending Appeal

Via Josh Gerstein comes news of this order in the long-running Texas voter ID litigation. Judges Jerry Smith and Jennifer Elrod held that Texas is likely to succeed on the merits because its new voter id legislation (SB 5) is enough to cure the defects with the voter id law. These judges also said that the question of the validity of SB5 was not properly before the district court. (That must be wrong; otherwise a state could easily circumvent a court finding that a law is illegal by passing a slightly different law, which would then require a new lawsuit—sounds like the situation before the enactment of Section 5!)

Judge James Graves, Jr., dissented, noting that because the district court found Texas acted with a racially discriminatory purpose, the law should be thrown out as a whole, and Texas cannot cure it with SB5. The dissent also noted that even if a stay was permissible, it should not allow using SB5–the old status quo was the district court’s interim order.

Given how each judge voted in the en banc ruling on the last round of the voter id case, nothing here is a surprise.

This is a ruling just by a motions panel; a separate merits panel will review the case in short order (the motions panel expedited consideration of the case).

There is still a long road ahead. The last time this went through it went en banc to the full 5th Circuit and took a while—so the status quo in the interim matters perhaps for how the 2018 elections will be conducted.

Plaintiffs could try to appeal this stay order to the Supreme Court, where they would probably face a tough audience, with perhaps Justice Kennedy in play.


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