Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the issues involved with Texas being allowed to put into effect an election law that a federal judge has ruled to be unconstitutional.
THE STATEMENT AT ISSUE:
“Imagine that a state passed a law, six months before an election, stating that ‘Negroes cannot vote.’ This law – clearly intentionally discriminatory based on language and effect alone – is enjoined on that basis by a District Court two weeks before an election. It would be ludicrous for an appellate court to turn around and stay that injunction because of some per se rule that election laws can never change immediately prior to elections.”
—Excerpt from a legal document filed Wednesday in the Supreme Court, urging the court to stop the state of Texas from enforcing a new voter ID law in this year’s elections. Early voting in Texas for the general election is due to start next Monday. A federal appeals court ruled on Tuesday that it was too close to election to stop the new law. Last week, a federal judge in Corpus Christi declared the law unconstitutional, as intentionally biased against black and Hispanic voters, and barred its enforcement.
WE CHECKED THE CONSTITUTION, AND…
Because the Constitution makes the Supreme Court the ultimate power in the federal court system, the Justices have the authority to control when lower courts put their decisions into effect. As it turns out, almost every election year, the Justices frequently face the task of monitoring when to allow new election procedures to go into effect, as voting approaches more closely.
The way the court exercises that power can seem confusing, indeed. This year, as the general election approached across the country, the Supreme Court has been asked four times to judge when to allow states to implement new procedures, or continue enforcing recent procedures already in effect. No clear line resulted: the court cut off some early voting in Ohio, allowed North Carolina to forbid voters to register and vote on the same day, but barred Wisconsin from enforcing a photo ID requirement this year.
Most recently, the court has been asked by civil rights groups and voters in Texas to stop the state from implementing a new voter ID law, challenged as one of the strictest in the nation. The challengers had been joined by the Justice Department, which complained that the law discriminated against black and Hispanic voters.
The case was rushed to the Supreme Court on Wednesday, a day after a federal appeals court agreed to allow Texas to enforce the law, concluding that it was too close to the beginning of voting (early voting starts next Monday in the state) to stop the new law and put back into effect a voting system without such strict ID requirements. That ruling came five days after a federal trial judge in Corpus Christi, in a massive opinion, ruled that the voter ID requirement could not be met by some 600,000 voters, that it was passed with the intention to discriminate against minorities, and that the fee for getting a valid ID was a form of poll tax, in violation of the Constitution’s 24th Amendment, added to the Constitution in 1964.
Because Texas has a right to appeal that judge’s ruling, there likely will be further judicial analysis of it, for future elections. At this stage, the Supreme Court is not being asked to settle the law’s validity. But the fact that it has already been ruled unconstitutional by a federal judge could be a factor that the Justices will take into account in deciding whether to permit Texas to enforce its law.
This spate of last-minute, or nearly last-minute, court battles over election procedures seems almost inevitable, because court cases take time to unfold, and, even if filed months before election day, may not develop fast enough to avoid late decisions, close to the actual balloting.
When the question then arises whether to permit a change to take effect, or to remain in effect, lawyers on all sides will pull down from bookshelves a volume that contains a brief Supreme Court ruling in 2006 – the decision in the Arizona case, Purcell v. Gonzalez. (Not surprisingly, that decision came out in late October, shortly before that year’s elections.)
In Arizona that year, a federal appeals court had barred the state – a month before the election – from enforcing a law requiring voters to prove they were U.S. citizens before they could register or cast a ballot. Without ruling on the constitutionality of that law, the Supreme Court in the Purcell decision allowed it to go into effect, relying upon “the imminence of the election and the inadequate time to resolve the factual disputes” in the case. (It actually would take another seven years before the Supreme Court would rule that the citizen proof requirement could not be enforced for federal elections.)
As is often true of Supreme Court opinions, there are reasons why opponents of new voter restrictions can argue that the Purcell decision does not apply to their case, and reasons why states supporting new voting requirements can claim that it should govern their case.
But the Supreme Court has never clarified just when it would, and when it would not, step in at the last minute. It did not do so in recent days in the cases from Ohio, North Carolina and Wisconsin, because the orders in those cases gave no explanations. The court also may not do so when it acts on the new voter ID law in Texas.
But one thing that the lawyers fighting against the Texas law have claimed in their favor is that, if Texas is allowed to put into effect a law that a federal judge has ruled – after a complete trial – to be unconstitutional, it would almost be unprecedented. In their research, they told the court, they could find only one case – in 1982 – when the Supreme Court had allowed a voting change to take effect even after it had been ruled to be discriminatory on purpose.
The Justices are expected to act quickly, probably by the weekend, and may or may not give a reason for what they decide to do.
