The Supreme Court on Monday morning cleared the way for the new Trump Administration to switch the government’s position – if it wishes to do so – to allow states to enforce strict photo ID requirements for America’s voters. The Justices did so, without any noted dissents, in refusing for now to hear an appeal by Texas officials seeking to defend the strictest such law in the nation.
The Court’s action, which included a separate comment by Chief Justice John G. Roberts, Jr., will send the Texas case back to a federal trial judge in Texas who is making a new review of the constitutionality of the state law. There, the Trump legal team is due to file, by February 28, its own view on that question. If, as seems likely, it follows the lead of many Republican leaders, it could join Texas’ defense of the state power in dispute.
That would be a direct switch of the federal government’s view up to now. The Obama Administration has vigorously opposed the Texas law and other similar state laws that it believed violated the rights of black and Latino voters by making it harder for them to cast ballots. The case in Texas thus has become the highest profile case on that broader political and legal controversy
The Supreme Court’s brief order denying review of Texas’s current appeal offered no explanation, but clearly did not have the legal effect of upholding lower court rulings that the photo ID law violates the federal Voting Rights Act or that there is a serious question about its constitutionality under the Fourteenth or Fifteenth Amendments.
Chief Justice Roberts, in a separate two-page opinion that offered only his own views, suggested that the denial was based mainly on the premise that Texas’s appeal was premature. Roberts stressed that, after further proceedings in lower courts, state officials would be free to defend the photo ID requirement under both the Voting Rights Act and the Constitution. The case thus seems highly likely to return to the Justices in the future.
It is not a coincidence that the Trump legal team will have an early opportunity to put forth its own views on the Texas law. A hearing on the next phase in the case had been scheduled for tomorrow in a federal District Court in Corpus Christi. But, last Friday, within hours of President Trump’s inauguration, lawyers for the federal Justice Department asked for and got a delay of that hearing until February 28, specifically to give the new Administration time to formulate its own legal position.
The February 28 hearing will be held before the same federal trial judge who earlier had ruled that the Texas law violated Section 2 of the Voting Rights Act and was unconstitutional on the premise that it intentionally discriminated on the basis of race against minority voters. The appeal by Texas officials that the Justices turned aside this morning sought to challenge both of those findings.
The case will now move toward a new ruling by the Corpus Christi judge. Chief Justice Roberts commented on Monday that “the issues will be better suited” for Supreme Court review after there is a final decision in the lower courts.
The Corpus Christi judge, Nelva Gonzales Ramos, has not yet issued a final decision on how Texas could comply with Section 2 of the 1965 law, and the constitutional issue is still open in her court because her finding on that point is being reconsidered on orders from the U.S. Court of Appeals for the Fifth Circuit.
Section 2 of the 1965 federal law bars state and local governments from enforcing election laws that limit the right of minority voters to take part in elections. A violation can occur even if there is no proof that the impact was adopted with the specific aim of discrimination; the law is violated even if a reduced opportunity to vote is only a practical effect, regardless of the lawmakers’ intent.
Judge Ramos ruled that the Texas law would have the effect of diminishing the right to vote of perhaps 600,000 Texas minority voters who do not have a photo ID of the limited kind that the law permitted. The judge put into effect, for the November election, a temporary measure for affected voters. Still pending before her is a final ruling on a remedy.
In asking the Supreme Court to hear its protest about that part of Judge Ramos’s decision, the state urged the Justices to rule that a law does not violate Section 2 unless there is specific proof that it actually had the effect of reducing minority voter registration or minority voter turnout at the polls. Both Judge Ramos and the Fifth Circuit Court had refused to adopt that restriction on the law’s scope.
If the case returns to the Supreme Court, Texas can again challenge that view of Section 2.
Judge Ramos, in finding that the Texas law was unconstitutional, had relied on a lengthy history of racial bias in voting in the state. The Fifth Circuit Court, while declaring that there was significant evidence of such discrimination, concluded that the trial judge had relied on some findings that were either out of date or otherwise weak.
That is why the Circuit Court returned the constitutional issue to her for a new look. Both sides have filed new legal briefs on that point. In its appeal to the Supreme Court on that point, the state of Texas had contended that the Fifth Circuit Court should have rejected that claim outright instead of returning it to Judge Ramos for a new analysis.
After Judge Ramos finishes on that constitutional point, she is expected to issue a final remedy order, and the case could return to the Fifth Circuit Court before going to the Supreme Court again.
Even if the Trump Administration were to switch positions on the case, civil rights groups and minority voters who had challenged the law’s validity are almost sure to continue with their challenge as the case unfolds further. They had been closely allied with the Obama Administration in testing the law’s validity.
(This post also appears today at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)