Sometimes I’m dismayed at the importance of Justice Kennedy as the swing vote of SCOTUS, although I suppose I’m rather naive for not appreciating the importance of the ideological underpinnings of certain SCOTUS decisions. Here Rick Hasen on Election Law Blog discusses the recent district court decision regarding the Texas Voter ID law:
For two reasons, it matters whether the courts find discriminatory purpose in addition to discriminatory effect. When there is just a discriminatory effect, the remedy is much narrower. In this case, the interim remedy was to tinker with the voter id law, such as allowing voters to file an affidavit explaining why they lack the necessary ID signed under penalty of perjury. With a finding of purpose, however, the entire law could (and today was) thrown out. Second, a finding of intentional discrimination can be the basis, under section 3c of the Voting Rights Act, to put Texas back under the preclearance provisions of the Voting Rights Act for up to 10 years, at the court’s discretion. The court has scheduled further briefing on the section 3c issue for the end of the month.
Today the court reaffirmed the discriminatory purpose finding, and held that the tweaks Texas made to its voter id law in a recent session did not solve the problem of discriminatory purpose. In some ways Texas made things worse. The affidavit requirement, for example, could intimidate voters given that many sections open up voters to prosecutions for felony perjury. The Court also noted that the new law did not include any money for voter education, which the court found crucial to a fairly applied voter id law.
What comes next? Texas will no doubt appeal this ruling to the Fifth Circuit, and the first question will be some kind of interim relief—Texas will ask to continue to enforce its voter id law as this case works its way through the 5th Circuit (and likely back to the entire 5th Circuit sitting en banc). What happens in the request for a stay of the district court’s order may give us some sense of what is likely to happen on the merits at the Fifth Circuit.
But ultimately this case is heading to the Supreme Court. What kind of reception it gets there will likely depend upon (1) whether Justice Kennedy is still on the Court and (2) how Justice Kennedy, if still on the Court, views the evidence of intentional discrimination in this case.
Is the evidence really so ambiguous? Granted, it’s hard to understand the motivations of the actors if they refuse to admit to real reasons to hidden recorders, and this is certainly one of the more contentious areas, since the GOP, the actors in this drama, do have a prima facie reasonableness for taking some sort of action. But the lack of any evidence of abuse in the recent past by illegal immigrants makes the Voter ID law’s stated motivations dubious.
