This column first appeared Aug. 15 on Library of Law and Liberty.
Like unruly schoolchildren using the presence of a substitute teacher as an opportunity to misbehave, in Veasey v. Abbott, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, has sent the jurisprudential equivalent of a spitball at the U.S. Supreme Court knowing that the deadlocked Court would probably take no corrective action.
On July 20, the Fifth Circuit, by a vote of 9 to 6, declared Texas’s voter-identification law unlawful even though the Supreme Court upheld a similar law eight years ago. The ruling was quite remarkable, coming as it does from a court of appeals generally regarded as the nation’s most conservative.
But Veasey is not an outlier. Other lower federal courts have similarly blocked or struck down the voter ID statutes of North Carolina, North Dakota, and Wisconsin. Disputes over voting rights have become increasingly rancorous and partisan. Nearly three dozen states, mostly Red, have adopted voter ID laws in recent years to prevent voter fraud. Members of the Democratic Party, which vehemently opposes voter ID and other restrictions on voting, dismiss the risk of voter fraud and openly accuse the Republican sponsors of these measures of attempting to suppress voting by poor people and African Americans. Without any supporting evidence in the record, courts deciding voter ID cases have unfortunately repeated this poisonous accusation.
The federal appeals courts, their ranks swollen with Left-leaning appointees of President Obama (along with holdovers appointed by Presidents Clinton and Carter), may view the current stalemate on the Supreme Court as license to ignore precedents they don’t like. Unless the vacancy created by the death of Justice Scalia is filled by a committed conservative originalist, this trend may foretell a groundswell of activist rulings across the land.
If voter ID laws, which have an impeccable constitutional pedigree, can be routinely overturned, imagine the fate of other state laws if the Court were to seat a justice in the mold of Ruth Bader Ginsburg or Sonia Sotomayor. A phalanx of liberal federal jurists is chomping at the proverbial bit to implement a Progressive policy agenda, including letting non-citizens and convicted felons vote. Many people (myself included) suspect that the Warren Court years could end up looking like an era of judicial restraint compared to the rulings to be expected from a Hillary Court.
Regarding the validity of voter ID, the relevant constitutional law precedent is not in doubt. In Crawford v. Marion County Election Board (2008), the Supreme Court upheld, by a vote of 6 to 3, an Indiana law that required voters to produce a government-issued photo identification card in order to cast a ballot. The lead opinion in Crawford was authored by Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy. Justice Scalia wrote a concurring opinion that was joined by Justices Thomas and Alito. (The dissenters were Justices Souter, Ginsburg, and Breyer.)
The Crawford majority concluded that the requirement that voters display a photo ID was closely related to Indiana’s legitimate state interests in preventing voter fraud and protecting public confidence in the integrity of the electoral process. Stevens’ lead opinion in Crawford affirmed that:
There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear. (Emphasis added.)
In the absence of a constitutional constraint, courts ordinarily defer to the judgment of the state legislature regarding the wisdom of a state law. Stevens noted in Crawford that:
States employ different methods of identifying eligible voters at the polls. Some merely check off the names of registered voters who identify themselves; others require voters to present registration cards or other documentation before they can vote; some require voters to sign their names so their signatures can be compared with those on file; and in recent years an increasing number of States have relied primarily on photo identification.
Stevens observed that the potential burden imposed by Indiana’s voter ID law—in the event that a voter lost his wallet or lacked a driver’s license—was ameliorated by the ability to cast a “provisional ballot” and the availability of free photo identification from the Indiana Bureau of Motor Vehicles.
Stevens also rejected the contention that Indiana’s voter ID law was invalid simply because it was enacted on a party line vote (with Republicans uniformly for it and Democrats uniformly against it). He wrote: “[I]f a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.”
More than a decade after Indiana enacted voter ID, turnout at the polls on election day has not declined, and there is no evidence of voter disenfranchisement.
Not only has Crawford not been overruled, it hasn’t even been questioned. In 2011, the Republican-controlled Texas legislature adopted a voter ID statute, Senate Bill 14, that—while stricter than the Indiana law in some respects—complied with Crawford in all essential respects. One of the seven forms of photo ID accepted by election authorities was a Texas election identification certificate issued by the Department of Public Safety at no charge to individuals lacking a Texas driver’s license or another form of approved ID. As in Indiana, voters showing up at the polls without a valid ID were authorized to cast a provisional ballot, permitting them to explain their lack of photo identification at a later time.
Americans are required to produce a valid photo ID to board a plane, cash a check, open a bank account, rent a car, pick up a prescription, and even to purchase certain cold medicines. The Texas lawmakers legitimately believed a photo ID should be required to enter the voting booth. (Senate Bill 14 took effect in 2013, when the Supreme Court struck down Section 4 of the Voting Rights Act in Shelby County v. Holder.)
How, in light of the Supreme Court’s Crawford decision, was Texas’s voter ID law successfully challenged? Three factors combined.
First, opponents waged a relentless legal blitzkrieg against Senate Bill 14. The plaintiff in the Fifth Circuit case is Representative Marc Veasey (D-Tex.).
Second, a sympathetic federal district judge appointed by President Obama, Nelva Gonzales Ramos, in 2014 ruled against Senate Bill 14 after a nine-day bench trial. Crawford involved a facial constitutional challenge.
Third, a fractured Fifth Circuit now has enough results-oriented Obama appointees to tip the balance in close cases.
In Veasey v. Abbott, the Fifth Circuit largely overturned Judge Ramos’ over-broad ruling—and her risible holding that Senate Bill 14 constituted a poll tax was reversed unanimously. But it narrowly upheld the finding that the law had a “racially discriminatory effect” under the Voting Rights Act, remanding the case to the district court for reconsideration of the conclusion that it was enacted for a “racially discriminatory purpose” under that Act. (A majority of the court charitably found that “much of the evidence upon which the district court relied was ‘infirm.’”)
The “discriminatory effect” holding is very tenuous. According to the trial court, 4.5 percent of registered voters in Texas lack a qualifying photo ID, comprising a group that is disproportionately black and Latino. Using a deferential standard of review, the Fifth Circuit strained to uphold the district court’s finding that this constituted a violation of Section 2 of the Voting Rights Act, despite the lack of any evidence that the law reduced voter turnout. And, on remand, how is the district court to divine the intent of the legislature in enacting a facially neutral law of general applicability, similar to one that has been upheld by the Supreme Court? This is a dubious enterprise, as Judge Jerry Smith pointed out in a toughly worded dissenting opinion.
The principal dissent, authored by Judge Edith Jones, is a 68-page tour de force. Here is a sample:
Requiring a voter to verify her identity with a photo ID at the polling place is a reasonable requirement widely supported by Texans of all races. . . . The majority, however, . . . concludes that there is “more than a scintilla” of evidence to support a finding that the Texas Legislature passed the voter ID law with a racially discriminatory intent. By keeping this . . . alive, the majority fans the flames of perniciously irresponsible racial name-calling.
. . .
The ill-conceived, misguided, and unsupported majority opinion shuns discernment. Because of definitive Supreme Court authority, no comparable federal court precedent in over forty years has found a state legislative act motivated by purposeful racial discrimination. . . . Yet the majority emulates the clever capacity of Area 51 alien enthusiasts who, lacking any real evidence, espied a vast but clandestine government conspiracy to conceal the “truth.”
. . .
Today’s result moves us another step down the road of judicial supremacy by potentially subjecting virtually every voter regulation to litigation in federal court. According to the twists and turns of the majority opinions, purposeful racial discrimination can be “inferred” even without a shred of discriminatory utterance—not even one document of thousands of pages of internal communications betrayed such purposes. . . . .
No doubt the majority believes that federal judges are well suited to regulate the electoral process. As with many judge-made “solutions,” however, today’s results will backfire. . . . [T]hese unauthorized and extra-legislative transfers of power to the judiciary disable the working of the democratic process, which for all its imperfections, best represents “we the people.”
- See more at: http://www.libertylawsite.org/2016/08/15/judicial-rebellion-against-voter-id/#sthash.xu75bQd5.dpuf