Despite uncontested findings of purposeful discrimination in the GOP law, strict new Photo ID restrictions allowed to take effect...

Ernest A. Canning Byon 10/18/2014, 2:52pm PT

- with Brad Friedman

As the plaintiffs in the otherwise successful challenge to Texas Republicans' polling place Photo ID restriction law pointed out during their emergency petition to the U.S. Supreme Court earlier this week --- after an appeals court panel had temporarily stayed a lower court's determination that the law was discriminatory and thus, stricken down --- it was the High Court itself which, when it gutted a central provision of the Voting Rights Act last year, promised there were other provisions still standing in the landmark VRA that could adequately be used to prevent discriminatory voting laws in all 50 states.

"Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2" of the Voting Rights Act, the John Roberts Supreme Court majority declared at the time. Apparently they were just kidding.

As the plaintiffs in the case persuasively argued in a filing at the court on Friday, "If voters cannot be protected after findings --- including a finding of intentional racial discrimination --- and a permanent injunction in a case where there was a year of discovery, nine days of trial, and an exhaustive, comprehensive District Court opinion, then when will they be?"

The answer to that question came back from the Court in the form of a pre-dawn order [PDF] issued Saturday morning upholding the appellate court's ruling that, even though the law, SB 14, is discriminatory, as found by the lower court after a full trial on the merits, the Photo ID restrictions that are likely to disenfranchise some 600,000 legally registered and disproportionately minority voters in the Lone Star State will be back in effect for this November's mid-term elections.

The trial earlier this year, challenging the law under both the U.S. Constitution and Section 2 of the Voting Rights Act --- the section that SCOTUS had previously announced was more than adequate to protect voters --- determined that the Texas law "creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose." U.S. District Court Judge Nelva Gonzales Ramos also found in her 147-page ruling, that "SB 14 constitutes an unconstitutional poll tax."

Texas had already required ID for every single polling place voter in the state from 2003 to 2013, and even though state Republicans' even more extreme version of Photo ID restrictions on voting instituted by SB 14 had already been found racially discriminatory by the U.S. Dept. of Justice and again by a U.S. District Court in D.C. based on data supplied by the state of Texas itself, and now, once again, found both discriminatory and unconstitutional by a U.S. District Court in Texas after a full trial, the U.S. Supreme Court upheld an appellate court stay issued this week on the basis that the lower court's ruling came just too close to the election to change the rules at this point.

The 5th Circuit Court of Appeal had reasoned that it was better for all 600,000+ voters to face potential disenfranchisement under the racially-motivated law, rather than just a few who might face a poll worker that didn't receive adequate notice that the more restrictive ID law --- the one allowing concealed weapons permits, but not state-issued Student IDs, the one that doesn't even allow U.S. Government Veterans IDs as proof of identity for voting --- had been approved for use. It appears that a majority of Supreme Court Justices agreed.

Like the appellate court, the SCOTUS majority did not dispute any of the District Court's findings nor explain why those findings did not outweigh the "potential" disruption of the Lone Star State's electoral apparatus on the eve of an election. Its cursory order, however, leaves no room for doubt that the Court has expanded what is known as "the Purcell principle" so that, no matter how egregious the law in question, no matter the evidence establishing deliberate racial discrimination and widespread disenfranchisement, the Court will apply a per se rule that an injunction barring the illegal disenfranchisement of voters will be stayed if it is issued in close proximity to the start of an election.

While the SCOTUS majority failed to offer a written opinion to explain their decision to allow massive disenfranchisement in Texas this year, Justice Ruth Bader Ginsburg, writing on behalf of herself and Justices Sotomayor and Kagan, provided a tightly written dissent offering documented facts and uncontested evidence to support her opinion that the Supreme Court should have vacated the 5th Circuit's last minute stay of the lower court ruling...

Ginsburg's dissent

Justice Ginsburg blasted the majority in a number of ways, among them, by noting that they had strayed from long-established, basic rules requiring that appellate courts afford deference to factual findings of a U.S. District Court, in this case, "virtually unchallenged" findings that the state was intentionally acting in order to obtain an advantage for Republicans in elections by racially discriminating against certain voters:

On an extensive factual record developed in the course of a nine-day trial, the District Court found Senate Bill 14 irreconcilable with [Section 2] of the Voting Rights Act of 1965 because it was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result. The District Court emphasized the "virtually unchallenged" evidence that Senate Bill 14 "bear[s] more heavily on" minority voters. [Citation]. In light of the "seismic demographic shift" in Texas between 2000 and 2010, making Texas a "majority-minority state," the District Court observed that the Texas Legislature and Governor had an evident incentive to "gain partisan advantage by suppressing" the "votes of African-Americans and Latinos."

Ginsburg pointed to uncontroverted evidence on record from trial demonstrating that these minority, soon to be majority, voters would be disproportionately disenfranchised by SB 14. "On this plain evidence, the District Court concluded that the Bill would not have been enacted absent its racially disparate effects."

She also cited the District Court's finding, uncontested by the Appellate Court, that the radical TX law "operates as an unconstitutional poll tax" in violation of the 24th Amendment, and includes costs to voters "deliberately imposed by the State."

"The potential magnitude of racially discriminatory voter disenfranchisement counseled hesitation before disturbing the District Court's findings and final judgment," she writes. "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."

As the U.S. District Court was not the first to reach similar conclusions about the TX Republicans' law --- either this one, or many of its precursors --- Ginsburg adds [emphasis added]...

Unsurprisingly, Senate Bill 14 did not survive federal preclearance under [Section 5] of the Voting Rights Act. A three-judge District Court unanimously determined that the law would have a prohibited discriminatory effect on minority voters...Although this Court vacated the preclearance denial in light of Shelby County v. Holder...(2013), racial discrimination in elections in Texas is no mere historical artifact. To the contrary, Texas has been found in violation of the Voting Rights Act in every redistricting cycle from and after 1970.

Yes, the Lone Star State has been discriminating and/or attempting to discriminate against certain voters for years, as found time and again both before and after SCOTUS gutted the preclearance provision of Section 5 that had required federal approval of new voting laws in jurisdictions, like Texas, with a long history of racial discrimination.

This was another area where both the appeals court and the SCOTUS majority decisions simply disregarded the District Court's factual findings.

"The District Court noted particularly plaintiffs' evidence --- largely unchallenged by Texas --- regarding the State's long history of official discrimination in voting, the statewide existence of racially polarized voting, the incidence of overtly racial political campaigns, the disproportionate lack of minority elected officials, and the failure of elected officials to respond to the concerns of minority voters" Ginsburg wrote.

"Despite awareness of the Bill's adverse effect on eligible-to-vote minorities, the Texas Legislature rejected a 'litany of ameliorative amendments' designed to lessen the Bill's impact on minority voters --- for example, amendments permitting additional forms of identification, eliminating fees, providing indigence exceptions, and increasing voter education and funding --- without undermining the Bill's purported policy justifications."

During the decade in which the state's previous ID requirement for every voter was in place from 2003 to 2013, she notes, "there were only two in-person voter fraud cases prosecuted to conviction in Texas." Nonetheless, the state deliberately declined to change the new law to make it more inclusive. Proponents of the bill were "unable to 'articulate any reason that a more expansive list of photo IDs would sabotage' their efforts at detecting and determining voter fraud."

"On this plain evidence," Ginsburg writes [emphasis added], "the District Court concluded that the Bill would not have been enacted absent its racially disparate effects."

The Justice went on to highlight just some of the challenges to be faced by legal voters who have the misfortune of not already owning the newly-required, very narrow type of Photo ID now mandated for voting at the polls in Texas.

"A voter whose birth certificate lists her maiden name or misstates her date of birth may be charged $37 for the amended certificate she needs to obtain a qualifying ID. Texas voters born in other States may be required to pay substantially more than that."

"Under Senate Bill 14," she adds, "a cost attends every form of qualified identification available to the general public." That, despite the 1966 Supreme Court ruling that a $1.50 poll tax violated the Constitution.

Ginsburg also went on to cite the fact that, even if a voter could afford the charges for these IDs now required to vote, "more than 400,000 eligible voters face round-trip travel times of three hours or more to the nearest DPS [Department of Public Safety] office" in Texas in order to try and obtain one of the IDs offered by the state. That three-hour round trip presumes the otherwise-eligible voter, who doesn't have a drivers license, is able to arrange someone to drive them the several hours in order to obtain the ID now needed to exercise their "right" to vote.

Body blow followed by a right hook

The body blow to democracy's gut that made this year's SCOTUS ruling possible, came last year by way of the 5 - 4 Supreme Court decision in Shelby County, AL v. Eric Holder.

In that decision, the Court's right wing majority cited the reduction of discriminatory practices since the Voting Rights Act was first enacted in 1965, as evidence that Section 5 preclearance protections were largely no longer necessary. The days of Jim Crow were over the court majority declared at the time.

That notion drew a sharp dissent from Justice Ruth Bader Ginsburg who, in 2013, presciently wrote: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."

The SCOTUS gutting of Section 5 in 2013 would prove akin to the unleashing of a pack of rabid dogs.

Once untethered by the need to receive federal preclearance by demonstrating that new voting laws were not discriminatory, jurisdictions previously covered by Section 5 began enacting the very laws that Section 5 was designed to prevent. In the case of Texas, that meant reinstating the very same law, SB 14, that Section 5 had, indeed, previously prevented from being enforced.

Texas Attorney General Greg Abbott, with his sights set on his gubernatorial candidacy, immediately announce after the SCOTUS decision in Shelby last year, that he would once again implement SB 14 --- this despite more than 600,000 legally registered Texans who would likely be stripped of their right to vote, a right which the Supreme Court has repeatedly recognized as providing "the essence of a free society."

With the Section 5 tether removed, in three smaller elections over the past year, none of which entailed a voter turnout of more than 10%, TX was permitted to enforce the very law found to be deliberately racist and disenfranchising.

"To date, the new regime, Senate Bill 14, has been applied in only three low-participation elections...in which voter turnout ranged from 1.48% to 9.98%," Ginsburg noted in her 6-page dissent Saturday morning. "The November 2014 election would be the 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."

Her logic fell on deaf ears at the Court.

During the course of the litigation against SB 14 earlier this year, Texas Republicans did all that they could to impede judgment day, not only unsuccessfully resisting the plaintiffs' efforts to have the case decided on an expedited basis, but by attempting to conceal documents that would help to establish that SB 14 was racially motivated. Those documents were produced only after U.S. District Court Judge Gonzales Ramos, last April, issued an 8-page order compelling production of the records.

While TX Republicans failed to completely run-out the clock, they did succeed in delaying the 9-day trial until September, and, given the time needed for the Judge to complete her detailed, 147-page decision, the permanent injunction from that court was not forthcoming until October 9 --- only eleven (11) days before the Oct. 20 start date for early voting in the upcoming Texas election.

The Supremes' ruling, issued despite express District Court findings that implementation of SB 14 will cause far more electoral chaos than the injunction, is ultimately a powerful blow to democracy's jaw --- a knock-down blow, if not a knock-out punch. The latter will only come if the Court, in the next term, after this election has passed, disregards the detailed District Court findings in considering the merits of the Texas law, as well as similar findings by a District Court in the Wisconsin photo ID case. That ruling was allowed to stand by SCOTUS last week. Both cases, and others like them, all due to Republican attempts at suppressing the vote, are likely to be heard in full at the Supreme Court next year.

Even if the Court, at such time, should go so far as to heed the devastating opinion of Reagan-appointed, Republican, U.S. 7th Circuit Appeals Court Judge Richard Posner's elegant plea that it strike down, as unconstitutional, each and every "strict photo ID" law (as enacted only by states with Republican majorities in both houses of their legislature), the stain on democracy will remain following the 2014 election in Texas.

Whatever the results of the midterm elections there this year, they will forever be tarnished by the wide-spread, racially motivated disenfranchisement of nearly 4.5% of the Lone Star State's eligible voters.

More disturbingly, a precedent will have been established that no matter how egregiously and purposefully racist a voter suppression scheme may be, those who seek to reinstate Jim Crow at the polls will always get at least one chance to insure a tainted election, simply by running out the clock on well-taken legal challenges.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).

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