In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday. Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. folllowing a seemingly lengthy study.

This apparently was the first time since 1982 that the Court has allowed a law restricting voters’ rights to be enforced after a federal court had ruled it to be unconstitutional because it intentionally discriminated against minorities. A U.S. District Court judge in Corpus Christi struck down the ID law last week after a nine-day trial, but it now awaits review by the U.S. Court of Appeals for the Fifth Circuit, which temporarily blocked the trial judge’s ruling.

The Justice Department has indicated that the case is likely to return to the Supreme Court after the appeals court rules. Neither the Fifth Circuit’s action so far nor the Supreme Court’s Saturday order dealt with the issue of the law’s constitutionality. The ultimate validity of the law, described by Saturday’s dissenters as “the strictest regime in the country,” probably depends upon Supreme Court review.

The Saturday order, for which a number of news organizations had kept a vigil through the night in anticipation of its release, did not disclose how six of the Justices had voted. But, because it would have taken the votes of at least five to have reached the result, it was clear that the order had majority support. The majority gave no explanation for its action.

Justice Ruth Bader Ginsburg wrote a dissenting opinion of more than six pages, joined by Justices Elena Kagan and Sonia Sotomayor. The opinion, though written mostly in even tones, in substance was quite critical of the law, of Texas’s handling of the controversy over the law and its history of racial discrimination, and of the Fifth Circuit for clearing the way for the law to be used.

Much of the Ginsburg opinion closely tracked the arguments that the Corpus Christi judge had enlisted in finding the law to be the result of intentional discrimination, a violation of the Voting Rights Act of 1965, and an unconstitutional poll tax in violation of the Twenty-Fourth Amendment because of the fees required to get a valid ID.

“The greatest threat to public confidence in elections in this case,” Ginsburg wrote, “is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”

There were no publicly recorded votes for Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Stephen G. Breyer, Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas. However, there was no sign that any of them had declined to take part.

Technically, what the Court had been asked to do by the Justice Department and by civil rights groups was to lift an order by the Fifth Circuit that permitted the voter ID law to be used in this year’s general election. The law, originally passed in 2011, has actually been in effect since mid-2013, but has never been used in a federal general election.

Its constitutionality and its legality under the federal Voting Rights Act have been under challenge since Texas had asked for official Washington clearance to put it into effect. That was denied by a federal court in Washington, D.C., and then a group of lawsuits were filed against it in the Corpus Christi federal trial court.

When the Fifth Circuit blocked the Corpus Christi ruling, it did so largely because the election was imminent. In doing so, the Fifth Circuit panel relied heavily on a 2006 Supreme Court decision cautioning courts not to put changes in voting laws into effect close to election day (Purcell v. Gonzalez).

Although the Supreme Court majority did not say anything about the Fifth Circuit’s rationale, it probably took something of the same view of the nearness of the election, even though the circumstances behind the 2006 decision by the Justices were significantly different — including the lack in that case of any court ruling that the changes were invalid.

For a decade, Texas used a system of voter identification that was considerably less demanding than the 2011 law. The Corpus Christi judge had ordered the state to return to that procedure, rather than continue with the new law’s requirements, because of her ruling that the new law was invalid. The Fifth Circuit thus concluded that the judge was disturbing the ID regime that was in place with the 2011 law’s enactment and implementation.

The Supreme Court’s action was the fourth it has taken in recent days as controversies over this year’s election procedures began reaching it as actual voting approached. The Court has taken varying positions, blocking a voter ID law in Wisconsin but allowing a reduction of early voting in Ohio and restrictions on registration and vote-counting in North Carolina, and, on Saturday, allowing Texas to require new voter identification.

Justice Ginsburg sought to draw distinctions between what the Court had done in the Ohio and North Carolina situations and the Texas situation. Neither of those cases, her dissenting opinion said, “involved, as this case does, a permanent injunction following a full trial and resting on an extensive record from which the District Court found ballot-access discrimination by the state.”

The Justice Department and civil rights groups that filed court challenges to the Texas law had hoped that it would be a significant test case of the continuing effect of the Voting Rights Act after the Supreme Court had nullified a key section of the Act in its 2013 decision in Shelby County v. Holder.

Because the Corpus Christi ruling against the law is now on hold, it is unclear whether the judge will move ahead now with a separate review that she was asked to make, on the issue of putting Texas under a regime of court supervision based upon her finding of intentional racial bias in the voter ID law.

In the meantime, the state does not have to get the judge’s approval for any changes it might have considered to remedy the constitutional and legal violations the judge had found.

Recommended Citation: Lyle Denniston, The Court won’t interrupt Texas voter ID law, SCOTUSblog (Oct. 18, 2014, 5:32 AM), https://www.scotusblog.com/2014/10/court-wont-interrupt-texas-voter-id-law/