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Is the Texas Voter ID Law Headed Back to the Supreme Court?

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By Casey C. Sullivan, Esq. on July 20, 2016 3:56 PM

An en banc Fifth Circuit ruled against Texas's controversial voter ID law today, affirming a district court opinion that found the law, known as SB 14, to have a discriminatory effect on minority voting rights in violation of the Voting Rights Act. The ruling came just in time as well. In April, the Supreme Court declined to intervene in the voter ID dispute, giving the Fifth Circuit until July 20th to act on the issue -- a deadline the Fifth just barely made.

That does not mark the end of the debate, though. The Fifth sent the case back down to the district court with instructions to craft temporary relief before this November's elections but, should the parties appeal, the case could be headed to the Supreme Court instead.

The SB 14 Controversy

Texas's voter identification law, SB 14, is one of the strictest in the country, requiring that voters show government-issued photo ID before casting a ballot. But not just any ID will do. Driver's licenses count, as do concealed carry permits. Student IDs do not.

The law could prevent over 500,000 eligible from voting, solely for want of proper ID. Critics say SB 14's burdens fall hardest on African American and Latino voters, groups that are among the least likely to have the required identification or to be able to procure such ID easily.

In 2014, a federal district court agreed with those critics, ruling that the law was discriminatory in intent and in effect, in violation of the Voting Rights Act. Last August, the Fifth Circuit agreed in part, finding that the law had a discriminatory effect, while disagreeing with the analysis the district court used to analyze SB 14's intent.

The Fifth Circuit decided to hear the case en banc, but made no hurried moves to come to a decision. While the election crept ever closer, the Fifth remained silent.

An emergency petition to the Supreme Court was denied this spring, but the Court noted that, in recognition of the "time constraints the parties confront in light of the scheduled elections in November," the justices may agree to revisit the issue if the Fifth hasn't acted by July 20th.

Finally, an En Banc Ruling

Not one to complete an assignment early, the Fifth waited to the very last minute to issue its ruling -- one that was largely similar to the conclusions of the three-judge panel before it.

The Fifth agreed with the district court that, whatever the intent behind the law, SB 14 had a discriminatory impact, disproportionately disenfranchising minority voters. But it remanded the case for further investigation into the law's allegedly discriminatory intent.

While the district court had fully enjoined SB 14 (an injunction the Fifth overturned two years ago, in order to "avoid voter confusion"), such relief may not be appropriate in this case, if only discriminatory effects, and not discriminatory intents, are found. As such, the Fifth urged the district court to "first focus on fashioning interim relief for the discriminatory effect violation in the months leading up to the November 2016 general election."

Given that early voting in Texas begins on October 24th, that leaves the district court with barely over three months to put together an appropriate remedy and for Texas to implement it.

Voting Cases Could Come Before the Court Just in Time for Elections

An appeal from either Texas or voter's rights advocates could see the case going up to the Supreme Court, however, either before the election or after. The Supreme Court itself left that door open when it denied the law's challengers cert petition in April. In addition, the Fifth's opinion added to a growing circuit split over voter ID laws, increasing the likelihood of Supreme Court review.

The Fifth Circuit's decision was itself fractured, as well. The court's ruling was a plurality opinion with no majority and there were six dissenting opinions.

Any challenge to Texas's voter ID law that comes before the Supreme Court, either sooner or later, will probably not come alone. A host of voting rights disputes could be on their way to 1 First St. N.E. in the next term, just in time for the elections, as CNN noted yesterday. Those include challenges to North Carolina's HB 589, which created new voter ID requirements, restricted early voting, and ended same-day registration; Ohio's elimination of its "golden week," which allowed voters to register to vote and cast an early ballot at the same time; and Wisconsin's state assembly redistricting, which critics claim is partisan gerrymandering.

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