Timing is Everything Dep’t: 5th Circuit Denies Request for Initial En Banc Consideration of Texas Voter ID Case

The United States Court of Appeals for the Fifth Circuit has denied a request by opponents of Texas’s strict voter id law to have the state’s appeal of the ruling holding the law illegal and enacted with racially discriminatory purpose heard initially by the entire Fifth Circuit.

Initial en banc consideration is very rare. Plaintiffs likely sought initial en banc review for three reasons: (1) it will speed things up so the issue has a better chance of being resolved before the 2018 elections, as the case will likely end up before the entire fifth circuit no matter what a 3 judge panel of that court will do; (2) plaintiffs won before the en banc court last time; and  (3) the longer things go, the better the chances that more very conservative nominees get confirmed to the 5th Circuit, potentially changing the outcome of a close vote.

The vote against en banc consideration was 4-10 (and we can see which judges supported review from the order: “In the en banc poll, four judges voted in favor of hearing (Judges Jones, Smith, Dennis, and Elrod), and ten judges voted against (Chief Judge Stewart and Judges Jolly, Clement, Prado, Owen, Southwick, Haynes, Graves, Higginson, and Costa).”

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