UPDATED Wednesday 5:21 p.m. — The challengers to the Texas law filed their reply brief on Wednesday. With that filing, the application is now ready for action, by Justice Thomas or the full Court.
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Arguing that its five-year-old law requiring voters to have a photo ID before they may cast a ballot will not deny anyone in Texas the right to vote, state officials urged the Supreme Court on Monday afternoon to allow the law to remain in effect while a federal appeals court conducts a new review of it. If federal voting rights law would treat the requirement as illegal, the federal law would be unconstitutional under the Fifteenth Amendment, the state contended.
The Court is considering a plea by a group of voters and officeholders in Texas (Veasey v. Abbott, 15A999) to block further enforcement of the requirement, and to do so in time to keep it from affecting voting in this year’s general election in November, conceding that it is now too late to stop it for the state’s May 24 run-off election. Their request was filed with Justice Clarence Thomas; he has the option of acting alone or sharing it with his colleagues.
The 2011 Texas law, claimed by its challengers to be the strictest in the nation, has been under continuing challenge in federal courts throughout its existence, but still has been used in at least three elections. The federal government has joined the Texans in their challenge, but — state officials noted on Monday — has not joined in their request for the Supreme Court to block enforcement at this point.
The last time this controversy reached the Supreme Court, the Justices split six to three in October 2014 in refusing to prevent its enforcement while lower courts studied it. The Court now has eight Justices, but it would still take the votes of at least five of them to put the law on hold.
In their reply, state officials disputed the challengers’ claim that some 600,000 voters in Texas do not have the kinds of photo ID that would satisfy the state law. The reality, the brief argued, is that more than ninety-five percent of eligible voters in the state already have or could easily obtain the necessary identification documents. None of the individuals now seeking legal help from the Supreme Court lacks a proper ID or the option of voting by mail, according to the state.
A federal judge in Corpus Christi, in the first of the lower-court rulings on so-called SB 14, ruled that it was unconstitutional because it was passed for racially discriminatory reasons, and that it violated federal voting rights law because it had a racially discriminatory effect on minority voters. That is the ruling that the Supreme Court would not put back in effect in October 2014 after it was blocked by the U.S. Court of Appeals for the Fifth Circuit.
A three-judge panel of the Fifth Circuit has agreed with the Corpus Christi judge that the photo ID requirement violates the federal voting rights act, but that decision was set aside last month when the en banc Fifth Circuit agreed to rule on that specific issue. The Fifth Circuit, asked anew by the challengers to lift its order against enforcement, said it would not act on that until it decides the case after en banc review.
In the state’s new filing in the Supreme Court, it said that Congress would not have had the power, in implementing voting rights under the Fifteenth Amendment, to pass a voting rights law that would sweep as broadly as the challengers are arguing that existing law does.
The challengers are likely to have the option to file a reply brief before Justice Thomas or the full Court acts on the new dispute.
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