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Big change coming in Texas voter ID case?

January 21, 2017 by Lyle Denniston

 

One of the highest profile court cases on state laws requiring voters to have photo IDs — a case now awaiting the Supreme Court’s reaction — may be affected in a major way by the opening of the Trump Administration on Friday.

Within hours after President Trump was sworn in, the Justice Department asked for — and got — a month-long delay of a crucial hearing that had been set for next Tuesday before a federal trial judge in Corpus Christi on a broad constitutional issue surrounding the Texas law.

Although that development might not directly affect what the Supreme Court does with the phase of the case now pending before the Justices, the Court almost certainly will be notified quickly of the changed situation in the lower court, and that could have an immediate impact. The development also could lead to a change in the federal government’s view of the case as a whole, and of the underlying issue of photo ID laws.

The Texas law, regarded as the strictest in the nation in its limits on the kinds of photo IDs it allows, was put into effect by Texas swiftly in 2013 after the Supreme Court had made unenforceable a major requirement of the federal Voting Rights Act. Under that requirement, Texas had been denied permission by the federal government to implement the photo ID requirements. That denial was undercut by the Justices’ decision three years ago in Shelby County v. Holder, ending the so-called pre-clearance requirement for election law changes attempted by state and local governments with histories of racial bias in voting restrictions. Texas was one of those states.

When the Texas law went into effect, the Obama Administration’s Justice Department, along with minority voters in the state and civil rights organizations, sued in federal court with fresh claims that the law violated another section of the Voting Rights Act (Section 2) that bans voting practices that have the practical effect of limiting the political strength of minority voters. In addition, these challengers argued that the photo ID provision was unconstitutional because it was enacted by the state with the specific purpose of discriminating against minority voters on the basis of their race.

A federal trial judge in Corpus Christi — District Judge Nelva Gonzales Ramos — upheld both of those claims, declaring that the law illegally diminished the votes of black and Latino voters — numbering perhaps more than 600,000 such voters — in violation of Section 2, and striking down the law as intentionally discriminatory.

The U.S. Court of Appeals for the Fifth Circuit agreed with the judge that the photo ID rules did violate Section 2, but it ordered the judge to reconsider her intentional bias conclusion. It found that some of the judges’ findings of a discriminatory aim were out of date or otherwise were flawed, although it said the challengers had offered some evidence of intent to discriminate.

Two things then happened. The case returned to Judge Ramos’ court in Corpus Christi to explore anew the constitutional claim, and, in the meantime, the state of Texas asked the Supreme Court to review the case as it stood at the point of the appeals court ruling.

The state asked the Supreme Court to rule that Judge Ramos was wrong in finding a Section 2 violation, because there was a lack of evidence that the photo ID requirement actually had caused any reduction in minorities’ registering to vote or in turning out to vote.

The state also argued that the appeals court should have flatly rejected the claim of unconstitutional bias, instead of returning that issue to Judge Ramos for further review.

Late in November, Obama Administration lawyers urged the Supreme Court to deny review of either point raised by Texas. The Section 2 violation was clear, it argued. And, it said, it was premature to consider the constitutional point because of the continuing process on that point in the Corpus Christi court.

Among other points, the federal brief noted that Judge Ramos had scheduled a hearing for January 24 — next Tuesday — on the constitutionality question.

The Supreme Court has so far had the Texas case set for action at three consecutive private conferences, but so far has taken no action on it.

That was where matters stood as of Friday morning. Not long after President Trump formally took office at noon, lawyers in the Justice Department’s Civil Rights Division — who have been handling the case before Judge Ramos — filed a motion to delay next Tuesday’s hearing on the constitutional issue for at least a month.

The motion said in part: “Because of the change in Administration, the Department of Justice also experienced a transition in leadership. The United States requires additional time to brief the new leadership of the Department in this case and the issues to be addressed at that hearing before making any representations to the court.”

The filing noted that the other challengers to the law opposed the delay request, but that the state of Texas had given its consent.

After an afternoon hearing, Magistrate Judge Jason B. Libby quickly granted the request. and re-set the hearing for February 28.

This development enables the new leaders of the Justice Department in the Trump Administration an option to switch positions at least on the constitutional question, if not on the case as a whole.

The Justice Department’s lawyers handling the case as it now stands before the Supreme Court have an obligation to notify the Justices of the changed circumstance in the lower court, because that could directly affect points that those lawyers have already made in their filing about the procedural aspects of the case. The Justices probably were not aware that the filing was going to be made in the court in Texas. It is not known whether they took any kind of vote on Texas’s appeal when they met in private on Thursday. The next day for release of orders by the Court is next Monday.

The filing in Corpus Christi on Friday afternoon was one of the first signs that some of the major policy positions of the outgoing Justice Department may be altered when President Trump’s team assumes leadership there.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and he has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.

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