WASHINGTON — A divided Supreme Court early Saturday morning let a new Texas voter ID law take effect.
Justice Ruth Bader Ginsburg issued a six-page dissent, saying the court’s action “risks denying the right to vote to hundreds of thousands of eligible voters.”
Justices Sonia Sotomayor and Elena Kagan joined the dissent.
The court’s order was an interim move addressing emergency applications filed Wednesday, and a trial judge’s ruling striking down the law will still be appealed. But the Supreme Court’s action set the ground rules for the current election. Early voting starts Monday, which helps explain the court’s rush to issue the order as soon as Ginsburg had finished her dissent.
The law, enacted in 2011, requires voters seeking to cast their ballots at the polls to present photo identification like a Texas driver’s or gun license, a military ID or a passport.
Those requirements, Ginsburg wrote, “may prevent more than 600,000 registered Texas voters (about 4.5 percent 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,” she noted, adding that “racial discrimination in elections in Texas is no mere historical artifact.”
Criticizing numbers
Texas officials quarreled with Ginsburg’s math, which was drawn from evidence presented to a trial court. In their brief urging the justices to allow the election to proceed under the 2011 law, they said that trying to determine the number of people the law would deter from voting was a fool’s errand and called the estimate of 600,000 disenfranchised voters preposterous.
Ginsburg also said the law “replaced the previously existing voter identification requirements with the strictest regime in the country.”
She noted that Texas would not accept several forms of ID that Wisconsin did, including “a photo ID from an in-state four-year college and one from a federally recognized Indian tribe.” The Supreme Court on Oct. 9 refused to let Wisconsin use its voter ID law in the current election.
Texans who lack a required form of identification cannot easily obtain it, Ginsburg wrote. “More than 400,000 eligible voters face round-trip travel times of three hours or more to the nearest” government office issuing IDs, she wrote, and they must generally present a certified birth certificate.
Birth certificates ordinarily cost $22. The state offers cheaper ones, costing $2 to $3, for election purposes, Ginsburg wrote, but it has not publicized that option on the relevant website or on forms for requesting birth certificates.
“Even at $2, the toll is at odds with this court’s precedent,” she wrote, citing a 1966 decision striking down Virginia’s poll tax.
The Texas law was at first blocked under Section 5 of the federal Voting Rights Act, which required some states and localities with a history of discrimination to obtain federal permission before changing voting procedure. After the Supreme Court in 2013 effectively struck down Section 5 in an Alabama case, Texas officials announced they would start enforcing the ID law.
Multiple challenges
The law has been challenged by an array of individuals, civil rights groups and the Obama administration.
Attorney General Eric Holder released a statement Saturday criticizing the outcome.
“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,” he said. “It is true we are close to an election, but the outcome here that would be least confusing to voters is the one that allowed the most people to vote lawfully.”
After a two-week trial in September, Judge Nelva Gonzales Ramos of U.S. District Court in Corpus Christi struck down the law on Oct. 9 in a 147-page opinion. She said it had been adopted “with an unconstitutional discriminatory purpose,” created “an unconstitutional burden on the right to vote” and amounted to a poll tax.
Two days later, Ramos entered an injunction blocking the law in the current election. The question for the justices was what to do about that injunction while appeals proceed.
Texas Attorney General Greg Abbott told the Supreme Court that Ramos had acted too closely to the election and had “unsettled a status quo that had prevailed for 15 months and governed numerous elections without a hitch.”
He accused his adversaries of litigation gamesmanship in not seeking a preliminary injunction while the case was moving forward in the trial court. A ruling on such an interim injunction, he said, would have allowed an orderly appeal.
On Tuesday, a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans stayed Ramos’ injunction. It said a change in voting rules so close to an election would cause confusion among voters and poll workers.
The law has been used in several statewide elections since the 2013 Shelby County decision but never in a federal general election.
Adam Liptak,
The New York Times
