Three justices dissented from the decision to allow Texas to use the tougher voter ID standards. | John Shinkle/POLITICO SCOTUS: Texas voter ID law stands

The Supreme Court will allow Texas to enforce its new voter ID law in next month’s elections, the court said in an unusual Saturday morning order.

Rejecting requests from the Obama administration and civil rights groups, the justices declined to re-impose an injunction against the law granted last week by a district court judge but lifted Tuesday by the 5th Circuit U.S. Court of Appeals.


Three justices — all Democratic appointees — publicly dissented from the decision to allow Texas to use the tougher voter ID standards in connection with the Nov. 4 election: Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

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Writing for her two colleagues, Ginsburg said it was a mistake for the appeals court to step in and block the district court’s ruling after a full trial in which the judge concluded the voter ID law passed in 2011 would have a discriminatory impact and was intended to do so.

“Senate Bill 14 replaced the previously existing voter identification requirements with the strictest regime in the country,” Ginsburg wrote. “The potential magnitude of racially discriminatory voter disenfranchisement counseled hesitation before disturbing the District Court’s findings and final judgment. Senate Bill 14 may prevent more than 600,000 registered Texas voters (about 4.5% of all registered voters) from voting in person for lack of compliant identification. A sharply disproportionate percentage of those voters are African-American or Hispanic.”

As is the custom on such emergency applications, the justices who formed the court’s majority did not indicate their rationale in the order the court issued Saturday (posted here) and emailed to reporters shortly after 5 a.m. Saturday. However, in a series of recent rulings on election-related emergency applications from Ohio, North Carolina and Wisconsin, the court has appeared to reject last-minute tinkering with states’ electoral processes.

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With varying numbers of justices in dissent, the court allowed Ohio to cut early voting from 35 days to 28 and permitted North Carolina to end same-day voter registration but denied Wisconsin permission to proceed with a long-blocked tightening of voter ID requirements. All of the measures putting new limits on voting were imposed by Republican-controlled legislatures citing concerns about voter fraud. Democrats and many voting experts say such fraud is almost unheard of for in-person voting.

Ginsburg’s dissent on the Texas voter ID issue said the court’s concern about disruption and confusion was legitimate but that the voter ID law and Texas’ practices in enforcing it were likely to cause such problems as well. She also noted the Texas case differed from the Ohio and North Carolina ones because in Texas the judge acted after a full trial that explored the legislature’s motivations as well as the statistical impact on minorities. That judge concluded that the voter ID law amounted to a poll tax because voters without identification needed to pay to get a birth certificate, which can cost as little as $2 in Texas but can cost substantially more for Texas residents born out of state.

“The greatest threat to public confidence in elections in this case 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,” Ginsburg wrote. She acknowledged that the new voter ID procedures have been used in three other elections but noted that none of those involved the turnout likely this fall.

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“There is little risk that the District Court’s injunction will in fact disrupt Texas’ electoral processes. Texas need only reinstate the voter identification procedures it employed for ten years (from 2003 to 2013) and in five federal general elections. To date, the new regime, Senate Bill 14, has been applied in only three low participation elections—namely, two statewide primaries and one statewide constitutional referendum, in which voter turnout ranged from 1.48% to 9.98%. … The November 2014 election would be the very first federal general election conducted under Senate Bill 14’s regime. In all likelihood, then, Texas’ poll workers are at least as familiar with Texas’ pre-Senate Bill 14 procedures as they are with the new law’s requirements,” she wrote.

It appeared that one Democratic appointee on the high court, Justice Stephen Breyer, joined with his five GOP-appointed colleagues in allowing the Texas law to be used next month. However, the court did not disclose a vote tally beyond announcing that Ginsburg, Sotomayor and Kagan had dissented.

In a release, the Brennan Center for Justice said the ruling shows “the inadequacy of existing protections against discrimination at the voting booth.”

Sherrilyn Ifill, president of the NAACP Legal Defense and Education Fund, said the ruling was “an affront to democracy.”

Attorney General Eric Holder’s office released a statement that said, “it is a major step backward to let stand a law that a federal court, after a lengthy trial, has determined was designed to discriminate.”

Additionally, the Texas attorney general’s office released a statement that said the state will continue to defend the voter ID law.

The Saturday order does not constitute a ruling on the legal questions of whether the Texas voter ID law violates the Voting Rights Act or the Constitution, as the district court found. Those questions could eventually come back before the court, likely after the 5th Circuit rules on those legal arguments, which it has not yet done.

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