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“Shame On Texas And The U.S. Supreme Court”: A Capitulation To Voter Suppressors Everywhere

In allowing Texas’ voter identification law to go into effect, at least for the November election, the U.S. Supreme Court last week showed the nation precisely what it meant in 2013 when its conservatives struck down the heart of the Voting Rights Act in Shelby County vs. Holder.

It is hard to chronicle in a short space the ways in which the Texas law, one of the most discriminatory voting laws in modern history, runs afoul of constitutional norms and reasonable standards of justice. State lawmakers rammed through the measure, jettisoning procedural protections that had been used for generations in the state Legislature. By requiring registered voters to present a certain kind of photo identification card, and by making it difficult for those without such cards to obtain one, the law’s Republican architects would ensure that poor voters, or ill ones, or the elderly or blacks or Latinos — all likely Democratic voters — would be disenfranchised, all in the name of preventing a type of voter fraud that does not materially exist.

These lawmakers — and for that matter the U.S. 5th Circuit Court of Appeals and the Supreme Court judges who now have sanctioned the law’s implementation for next month’s election — were shown mountains of evidence on what the law’s discriminatory impact would be on minority communities. Witness after witness testified that the new law amounted to a poll tax on people who had, even in the deepest recesses of Texas, been able for decades to adequately identify themselves before lawfully casting their ballot.

What was Texas’ strongest argument against all this evidence? That a state may establish financial and practical hurdles that preclude the poor from voting so long as it — purportedly — does not discriminate against voters by race. For now, this nonsense is the law of the land in Texas.

And as Congress dithers over an amendment to the Voting Rights Act and state lawmakers continue to churn out legislation on voting that widens the nation’s divides, the high court’s ruling essentially endorses the following judicial construction — a capitulation, really, to vote suppressors everywhere — to be the law of the land in America: That even when a state with a long history of discrimination in voting practices is found to have intentionally discriminated against minority citizens by restricting their voting rights, even when a trial judge says so and even in the absence of a contradictory appellate finding on the scope and effect of that discrimination, the state still is entitled to implement those discriminatory practices in a national election.

The six Supreme Court justices who allowed the Texas law to go into effect did not write a single word about the trial judge’s extensive findings of intentional discrimination in the law’s creation or implementation. The 5th Circuit judges, who overturned that trial judge’s ruling, evaded the vital issue by noting, in passing, that those complicated issues could be resolved later, when the federal judiciary evaluated the case on the merits.

The rationale behind these hollow displays of justice is perverse, saying it would be more unfair now to force Texas to go back to the old voter identification laws, the ones that had worked well for decades, than it would be to require voters to get the new identification the law demands.

The swift passage of this Texas law — it was blocked by the Voting Rights Act until the 2013 Supreme Court ruling in Shelby County, then began to be hustled through the state Legislature on the very day that case was decided — is unassailable proof that intentional racial discrimination still exists in these jurisdictions. The trial judge so found, in page after page of documentation, that Texas state officials, emboldened by the Shelby County decision, devised a way to make it harder for blacks and Latinos to have their votes counted. Read her opinion for yourself.

Only three justices on the Supreme Court — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — had the courage to call the high court’s ruling the sham that it is. Ginsburg wrote in the dissent that there was ample proof the Texas law discriminates, and no proof that it doesn’t. There was ample proof, she wrote, that state officials relentlessly fought against amendments to the measures that would have ameliorated the discrimination, and no proof that the new restrictions will solve whatever perceived voter fraud problems lawmakers fear. About 600,000 registered voters could be disenfranchised, Ginsburg warned.

Some stoic commentators have noted that the Supreme Court did not rule on the merits of the Texas law — that the justices may well strike it down next year, or the year after that, when it inevitably comes back to them following a ruling on the merits at the 5th Circuit. I don’t buy it. And even if this court ultimately does strike down this odious law, where precisely do the disenfranchised citizens of Texas in the November election go to get their votes back? Nowhere, which is the point of the Texas law and the ultimate effect of the judiciary’s shameful tolerance of it.


By: Andrew Cohen, The Los Angeles Times; The National Memo, October 24, 2014

October 26, 2014 Posted by | Texas, U. S. Supreme Court, Voter Suppression | , , , , , , , | Leave a comment

“Silent Treatment”: The Supreme Court And Voting Rights

The Supreme Court’s weirdly busy October brings to mind an old Cadillac commercial showing a sedan gliding silently down the highway, driver calm and confident in a hermetic, leather-appointed cabin, while the announcer intones, “quietly doing things very well.” Whether the justices are doing their jobs well depends on your point of view. But there is no disputing that they have been doing their most consequential work in uncharacteristic silence in recent weeks. The justices’ moves on gay marriage, abortion and voting rights have been delivered all but wordlessly, as Dahlia Lithwick of Slate recounts. The notable exception to the rule is Ruth Bader Ginsburg, the justice who refused to hold her tongue over the weekend, when six of her colleagues permitted Texas to enforce its new photo identification law in the November elections.

The Court’s announcement came down at the ungodly hour of 5am on Saturday. It followed a federal district court decision on October 9th that the Texas law was discriminatory in both intent and effect and “constitutes a poll tax”—a ruling that was stayed by the Fifth Circuit Court on October 11th. The stay prompted an emergency appeal to the Supreme Court via Antonin Scalia, the justice assigned to the Fifth Circuit. The six justices who denied the request to lift the stay before dawn on October 18th were mum as to why; they released no reasoning for the decision, which effectively gives Texas’s questionable voter law a pass. But Justice Ginsburg and her clerks apparently ordered pizza and downed some Red Bull on Friday evening, pulling an all-nighter to compose a six-page dissent, which Justices Sonia Sotomayor and Elena Kagan joined. (Rick Hasen asks why Justice Stephen Breyer, the fourth liberal justice, did not sign on to the dissent; one strong possibility is that he was asleep.)

Octogenarian Supreme Court justices are not known for burning the midnight oil, but Justice Ginsburg had an unusually good reason to do so in Veasey v Perry. The Texas law she opposed is a transparent attempt to help Republican candidates by keeping racial minorities, who vote overwhelmingly for Democrats, home on Election Day. In the words of the trial judge, the law “creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose.” Justice Ginsburg’s wee-hours dissent drew on the district court’s ruling to issue a scathing rebuke to the Fifth Circuit and, by implication, to the six justices who refused to lift the Fifth Circuit’s stay. “In light of the ‘seismic demographic shift’ in Texas between 2000 and 2010, making Texas a ‘majority-minority state,’ ” Justice Ginsburg wrote, “the District Court observed that the Texas Legislature and Governor had an evident incentive to ‘gain partisan advantage by suppressing’ the ‘votes of African-Americans and Latinos.’ ”

Justice Ginsburg also criticised the law’s defenders who claim it is necessary to fight voter fraud: “Texas did not begin to demonstrate that the Bill’s discriminatory features were necessary to prevent fraud or to increase public confidence in the electoral process.” The upshot is disturbing: by refusing to act, the Supreme Court majority is allowing a law to take effect that “may prevent more than 600,000 registered Texas voters (about 4.5% 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.”

What was the majority’s reasoning for deferring to the Fifth Circuit, and by extension to Rick Perry, the governor of Texas? We don’t know; they didn’t tell us. The rationale probably has to do with Purcell v Gonzalez, a 2006 case in which the Court decided that courts should be wary of changing voting rules too close to an election. But Purcell does not lay down an ironclad rule against last-minute changes. And as Rick Hasen writes, “[i]t appears to be unprecedented to let a law that was deemed racially discriminatory go into effect simply to avoid the risk of voter confusion and election administration inefficiency.” If the six justices voting to let Texas law take effect thought that voter confusion was more worrisome than racial discrimination, they should have put that reasoning down on paper.

John Rawls, an influential political philosopher who died in 2002, described the Supreme Court as an “exemplar of public reason”, a tribunal that accounts for its decisions with reasoned reference to the laws and traditions of the country. “It is the only branch of government,” Mr Rawls wrote, “that is visibly on its face the creature of that reason and of that reason alone”:

To say that the court is the exemplar of public reason also means that it is the task of the justices to try to develop and express in their reasoned opinions the best interpretation of the constitution they can, using their knowledge of what the constitution and constitutional precedents require.

Echoing Kant, for whom the “publicity” of public decisions is a key component of a constitutional republic and is, indeed, the “transcendental principle of public right”, Rawls insisted that “the court’s role…is part of the publicity of reason” to which citizens should enjoy full and unfettered access. Normally the justices acquit themselves quite well in this regard: they spend months drafting and polishing lengthy opinions in argued cases, and they release their decisions to be consumed, interpreted and scrutinised by everybody. But this month, by keeping their reasoning close their robes on several big decisions, the justices are falling down on their duty to share what they are thinking.

Six justices allowing Texas to enforce a voter-identification law that a federal judge had characterised, in a 147-page decision, as a racist poll tax—and to do so with pursed lips—is not merely rude. It is a breach of the Court’s legitimacy in a constitutional democracy. When the stakes are this high, all the justices should follow Justice Ginsburg’s lead and stay up all night to explain to America just what they are up to and why.


By: Steven Mazie, Democracy in America, The Economist, October 22, 2014

October 25, 2014 Posted by | Ruth Bader Ginsburg, Texas, Voter Suppression | , , , , , , | Leave a comment

“Confused Voter Or Disenfranchised Voter?”: In Texas, You Can Vote With A Concealed Handgun License—But Not A Student ID

Texans casting a ballot on Monday, when early voting begins, will need to show one of seven forms of photo ID. A concealed handgun license is okay, but a student ID isn’t. The Supreme Court on Saturday allowed Texas to go forward with this controversial voter ID law. A federal judge had previously struck down the law, arguing that it could disenfranchise 600,000 voters or a full 4.5 percent of registered voters, many of them black and Latino.

Critics say voter ID laws, especially the one in Texas, amount to voter suppression, because it can be both difficult and costly to get the required identification. In a powerfully worded dissent, Justice Ruth Bader Ginsburg, joined by Sonia Sotomayor and Elena Kagen, wrote, “The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters.”

Saturday’s decision marks the third time this season that the Supreme Court has allowed a controversial voter law to take effect. The other two were about measures in Ohio and North Carolina. This may not seem surprising, given that the Roberts Court has struck down a key section of the Voting Rights Act, but the rationale for this (and the other decisions) may have been more about timing than substance—in particular, observing the precedent of Purcell v. Gonzalez, in which the Court has blocked last-minute changes in voting laws in order to avoid confusion. Still, what’s worse? A confused voter or a disenfranchised one? The latter, Ian Millhiser argued at ThinkProgress: “If a confused voter brings an ID to the polls that they do not need to have, they will still get to cast a ballot. But if the same voter mistakenly forgets their ID (or fails to obtain one) because they were confused and believed that their state’s voter ID law was not in effect, then they will be disenfranchised.”

Actual voter fraud, which is the problem that Republican legislation supposedly addresses, is difficult to find. Ginsburg noted that there were “only two in-person voter fraud cases prosecuted to conviction” in Texas in almost a decade. The consequences of voter ID laws, on the other hand, are much easier to track. According to the nonpartisan Government Accountability Office, existing ID requirements reduced turnout in some states during the last presidential election, particularly among young and black voters. Now, imagine the impact is even larger, because it is spread over the 33 states that now require some form of photo ID to vote. The same report found that the costs of acquiring the needed ID ranged between $14.50 to $58.50 for 17 of the states.


By: Rebecca Leber, The New Republic, October 20, 2014

October 22, 2014 Posted by | Texas, Voter ID, Voter Suppression | , , , , , , | Leave a comment

“Another Long And Ignoble Tradition”: Why The Supreme Court Is Allowing Texas To Hold An Unconstitutional Election

This weekend, the Supreme Court allowed Texas to apply new, stringent voting restrictions to the upcoming midterm elections, which could potentially disenfranchise hundreds of thousands of voters lacking proper identification. As Justice Ruth Bader Ginsburg explained in a short but brilliant dissent, this is a disaster for the citizens of Texas: the upcoming elections will be conducted under a statute that is unconstitutional on multiple levels.

How could this happen?

There is, admittedly, a quasi-defensible reason for the court’s latest move. The Supreme Court is usually reluctant to issue opinions that would change election rules when a vote is imminent. For example, the court recently acted to prevent Wisconsin from using its new voter ID law in the upcoming midterms, coming to the opposite result from the Texas case. That is the principle at work here, and on a superficial level it makes sense.

But as Ginsburg — joined by Justices Elena Kagan and Sonia Sotomayor — points out, the general reluctance to change election rules at the last minute is not absolute. In Wisconsin, using the new law would have created chaos. For example, absentee ballots would not have indicated that identification was necessary for a vote to count, so many Wisconsin voters would have unknowingly sent in illegal ballots.

In the Texas case, conversely, there is little reason to believe that restoring the rules that prevailed before the legislature’s Senate Bill 14 would have been disruptive. “In all likelihood,” the dissent observes, “Texas’ poll workers are at least as familiar with Texas’ pre-Senate Bill 14 procedures as they are with the new law’s requirements.”

And more importantly, some risk of disruption is a price worth paying to prevent an election from being conducted under unconstitutional rules. The Texas statute, which is extreme even by the standards of contemporary Republican vote-suppression efforts, is not remotely constitutional.

The Texas law has all the defects of every law that requires photo ID to vote. You don’t have to take my word for it — you can read the recent tour de force opinion of the idiosyncratic, immensely influential Judge Richard Posner of the Court of Appeals for the Seventh Circuit in Chicago. Posner initially wrote an important opinion upholding an Indiana voter ID law, which was ultimately upheld by the Supreme Court. But last week, he concluded based on new evidence that the laws are “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”

The fundamental problem with the ID requirements is that they are a bad solution to a non-existent problem. Not only is voter impersonation exceedingly rare, even in theory it would be impossible to steal an election by having large numbers of people pretend they are other voters. Election thefts are accomplished by manipulating vote counts or manufacturing fake votes after the fact, not by having an army of impostors cast votes!

The costs in vote suppression, however, are real, and since voter ID laws don’t accomplish anything, even miniscule costs cannot be worth it.

But the Texas law is much worse than typical voter ID laws. As the Ginsburg dissent explains, “[I]t was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result,” and hence violates the Voting Rights Act (and, presumably, the Fourteenth Amendment). All voter ID laws are discriminatory in effect, but Texas public officials made little effort to hide the extent to which the laws were intended to suppress the minority vote to protect Republican incumbents from demographic change. Indeed, the only reason the law was able to go into effect in the first place was the Supreme Court’s notoriously shoddy 2013 opinion gutting the Voting Rights Act.

In and of itself, this should be enough to prevent the law from going into effect. But the legal deficiencies of Texas’ election law do not end there. None of the forms of ID required by the statute are available for free. As the dissenters note, the costs are not necessarily trivial: “A voter whose birth certificate lists her maiden name or misstates her date of birth,” Ginsburg explains, “may be charged $37 for the amended certificate she needs to obtain a qualifying ID.”

Texas is simply not constitutionally permitted to do this. The Twenty-Fourth Amendment forbids poll taxes, and the Supreme Court held in 1966 that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.”

The fact that Texas’ law is unconstitutional twice over — both by being racially discriminatory and imposing a direct cost on voting — is not a coincidence. Even after racial discrimination in voting was made illegal by the Fifteenth Amendment, for nearly a century states were able to use formally race-neutral measures like poll taxes and literacy tests to disenfranchise minority voters. The Texas law is very much part of this long and ignoble tradition.

Unfortunately, the Supreme Court’s decisions in 2013 and 2014 allowing the Texas law to go into effect are part of another long and ignoble tradition: the Supreme Court collaborating with state governments to suppress the vote rather than protecting minorities against discrimination. As long as Republican nominees control the Supreme Court, this problem is likely to get worse before it gets better.


By: Scott Lemieux, Professor of Political Science at the College of Saint Rose in Albany, N.Y; The Week, October 20, 2014

October 21, 2014 Posted by | Texas, U. S. Supreme Court, Voter ID | , , , , , , | Leave a comment

“Fractions Of Women In Texas”: When Does Nine Hundred Thousand Seem Like An Insignificant Number Of Women?

How do you count women in Texas, and when do the numbers get big? There is a good deal of bad math in a decision made last week, by the Fifth Circuit Court of Appeals, that had the effect of closing all but eight abortion clinics in the state; until recently, there were about forty. Five million four hundred thousand Texans are women of childbearing age. Almost one and a half million of them will live more than a hundred miles from any clinic; nine hundred thousand will live more than a hundred and fifty miles away, seven hundred and fifty thousand more than two hundred and fifty miles. For a good many, there will be more than five hundred miles to go, unless they want to cross the border and take their chances in Mexico. For a two-to-one majority on the Fifth Circuit panel, that just wasn’t enough women for them to worry about.

The Texas clinics will close because of a law, passed by the state legislature last year, that placed new regulations on clinics that provide abortions. The Supreme Court has found that women cannot be cheated of their right to end a pregnancy before viability by way of laws that place an “undue burden” on them, as standard laid out in Planned Parenthood v. Casey, in 1992. But, as Jeffrey Toobin recently wrote, courts in recent years have become increasingly merciless in what they consider undue for a woman at what is often a moment of profound crisis, to the point where almost no burden seems too heavy.

Several aspects of the new law, like one requiring doctors to have admitting privileges at hospitals within a certain distance, survived challenges. But, in August, the District Court Judge Lee Yeakel struck down a rule that clinics have to be outfitted and operated as ambulatory surgical centers, even if they only provided medication-induced abortions early in pregnancies. Yeakel’s decision came after a trial at the District Court level that included testimony that requirement was not practical for most clinics, would leave no clinics open south or west of San Antonio, and was not based on any sound medical rationale. The state wanted the provisions to go into effect regardless, pending its appeal; Yeakel said no. The appeals court has lifted that stay, saying that it thought the law would ultimately survive the challenge. (It did leave room for a partial reprieve for a clinic in El Paso, though not for one in McAllen.) And so, on Friday, thirteen clinics in Texas began turning patients away.

The Fifth Circuit judges picked up on another phrase in Casey: “a large fraction.” A way to tell if a burden is undue is if it presents obstacles for a large fraction of the women for whom it is relevant. The fraction the Fifth Circuit calculated was one-sixth: nine hundred thousand women who would have to travel more than a hundred and fifty miles out of five million four hundred thousand who could possibly get pregnant—“not a large enough fraction to impress the appeals court,” as Ruth Marcus put it, no matter the absolute number. There are, if one is counting, at least three reasons this logic is wrong.

First, a sixth can be pretty large, depending on what the numerator (one, in this case) and the denominator (the six) represent. (One-sixth of New York City’s population lives in the Bronx.) That is why one uses a word like large rather than something more definite, like majority. When it comes to a decision that can shape a woman’s life, this Texas sixth is a large fraction—and that alone should have been enough for the judges.

Second, it’s not clear at all that the majority chose the right numerator or denominator—that the fraction really is a sixth. First, the numerator: Is it only the women who have to drive these distances who are affected when a state that, until recently, had sixty-to-seventy-two thousand abortions each year, suddenly has only eight clinics—all in a few cities? Or does it also mean that the women in the next clinic over will soon find it hard or impossible to get an appointment? Speed matters a great deal for abortion; Texas’s law also included a twenty-week limit. (In another sign of fractional bad faith, the majority suggested that a woman who had been a hundred and fifty miles from a clinic and was now two hundred and fifty miles away might only be facing an “incremental increase of 100 miles.”)

One can also reconsider the denominator, the bottom number. In Casey, the Supreme Court upheld some restrictions in Pennsylvania but overturned a requirement that married women notify their husbands. The state of Pennsylvania had argued that only twenty per cent of women seeking abortions were married and that ninety-five per cent would tell their husbands anyway, and so the fraction affected was tiny—maybe one per cent, and therefore too few to count. The Court rejected that math, saying,

The analysis does not end with the one percent of women upon whom the statute operates; it begins there. . . . The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.

The denominator that the Court chose in that case was “married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” The fraction affected was suddenly very large.

The Texas decision briefly looks at the argument for a different denominator—women whose options will get worse because of the law—but then rejects it, bizarrely enough, because the resulting fraction is too large: it “would make the large fraction test a tautology, always resulting in a large fraction.” But that is only true if the burden on women for whom the law is relevant is, indeed, undue. One can imagine a law that presented X women with obstacles that Y of them could, nonetheless, easily navigate. What the judges see as a “tautology” is a sign that something is seriously wrong with the Texas law.

Third, as the dissenting judge in the Texas case noted, Casey doesn’t just talk about fractions: it talks about a “significant number” of women who, under the spousal-notification requirement, would not have meaningful access to abortion. After reviewing statistics on domestic violence, the Casey decision notes,

We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.

When does nine hundred thousand seem like an insignificant number of women?

There is another factor, involving other numbers: poverty. The Fifth Circuit judges acknowledged that women without much money would be more affected by the law than others: they might not have a car, or a way to take a day off from work to drive six hours. But that didn’t, somehow, change the judges’ calculation.


By: Amy Davidson, The New Yorker, October 5, 2014

October 11, 2014 Posted by | Reproductive Choice, Texas, Women's Health | , , , , , , | Leave a comment

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