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Since 2008 – Progress Through Politics

Justice Ginsburg: “… racial discrimination in elections in Texas is no mere historical artifact”

The Supreme Court of the United States (SCOTUS), snuck around in the early morning hours Saturday to decree that stopping a Texas law which discriminates on racial grounds would be unfair to Republicans in Texas who have worked so hard to disenfranchise those who might vote against them.

Justice Ruth Bader Ginsburg wrote (another) scathing dissent which was also signed by Justices Sotomayor and Kagan.

Sadly, three votes to protect the right to vote  is as meaningful as zero votes on a court intent upon disenfranchising those who would vote against their preferred political party. It is not enough to be right, we need to win these, especially the obvious ones.

Justice Ginsburg harkens back to the mindnumbing disconnect from reality present in the majority’s Shelby v Holder ruling last year that struck preclearance from the Voting Rights Act. Chief Justice Roberts declared that we are now post-racial and there is no need to consider history, blahblah, pesky facts, blahblah. But, as Justice Ginsburg notes in her dissent “racial discrimination in elections in Texas is no mere historical artifact. To the contrary, Texas has been found in violation of the Voting Rights Act in every redistricting cycle from and after 1970.”

An estimated 600,000 citizens in Texas have not paid the 2014 version of the poll tax and will not have the required ids needed to vote this year.

THAT is how Republicans win: by denying the right to vote to those who are likely to vote against them. They can’t win on their ideas and this is the last desperate gasp of a party soon to become a minoritea. That moment will likely be delayed unless we can convince two more justices that the right to vote is a fundamental right under our constitution and that artificial barriers to voting should be stricken.

Really, how can they let this stand? Justice Ginsburg:

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.

Stop hurting America, SCOTUS. Give us back our democracy.

democracy [dih-mok-ruh-see]


1. government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.

The six page opinion is here: PDF. Transcript:


I would vacate the Fifth Circuit’s stay of the DistrictCourt’s final judgment enjoining the enforcement of Sen­ate Bill 14.

This case is unlike the Ohio and North Carolina applica­tions recently before the Court concerning those States’ election procedures.  Neither application involved, as this case does, a permanent injunction following a full trial and resting on an extensive record from which the District Court found ballot-access discrimination by the State. I would not upset the District Court’s reasoned, record based judgment, which the Fifth Circuit accorded little, if any, deference. Cf. Purcell v. Gonzalez, 549 U. S. 1, 5 (2006) (per curiam) (Court of Appeals erred in failing to accord deference to “the ruling and findings of the District Court”). The fact-intensive nature of this case does not justify the Court of Appeals’ stay order; to the contrary, the Fifth Circuit’s refusal to home in on the facts found by the district court is precisely why this Court should vacate the stay.

Refusing to evaluate defendants’ likelihood of success on the merits and, instead, relying exclusively on the poten­tial disruption of Texas’ electoral processes, the Fifth Circuit showed little respect for this Court’s established stay standards.  See Nken v. Holder, 556 U. S. 418, 434 (2009) (“most critical” factors in evaluating request for a stay are applicant’s likelihood of success on the merits and whether applicant would suffer irreparable injury absent a stay). Purcell held only that courts must take careful account of considerations specific to election cases, 549 U. S., at 4, not that election cases are exempt from tradi­tional stay standards.

In any event, there is little risk that the District Court’s injunction will in fact disrupt Texas’ electoral processes. Texas need only reinstate the voter identification proce­dures it employed for ten years (from 2003 to 2013) and in five federal general elections.  To date, the new regime, Senate Bill 14, has been applied in only three low­ participation elections-namely, two statewide primaries and one statewide constitutional referendum, in which voter turnout ranged from 1.48% to 9.98%.  The November 2014 election would be the very first federal general elec­tion conducted under Senate Bill 14’s regime. In all like­lihood, then, Texas’ poll workers are at least as familiar with Texas’ pre-Senate Bill 14 procedures as they are with the new law’s requirements.

True, in Purcell and in recent rulings on applications involving voting procedures, this Court declined to upset a State’s electoral apparatus close to an election. Since November 2013, however, when the District Court estab­lished an expedited schedule for resolution of this case,Texas knew full well that the court would issue its ruling only weeks away from the election.  The State thus had time to prepare for the prospect of an order barring the enforcement of Senate Bill 14.  Of greater significance, the District Court found “woefully lacking” and “grossly” underfunded the State’s efforts to familiarize the public and poll workers regarding the new identification re­quirements.  No. 13-cv-00193 (SD Tex., Oct. 9, 2014), pp.20, 31-32, 91, n. 398 (Op.). Furthermore, after the Dis­trict Court’s injunction issued and despite the State’s application to the Court of Appeals for a stay, Texas stopped issuing alternative “election identification certifi­cates” and completely removed mention of Senate Bill 14’s requirements from government Web sites.  See Emergency Application to Vacate Fifth Circuit Stay of Permanent Injunction 11 and App. H.  In short, any voter confusion or lack of public confidence in Texas’ electoral processes is in this case largely attributable to the State itself.

Senate Bill 14 replaced the previously existing voter identification requirements with the strictest regime in the country.  Op. 20-21.  The Bill requires in-person vot­ers to present one of a limited number of government ­issued photo identification documents. Ibid. Texas will not accept several forms of photo ID permitted under the Wisconsin law the Court considered last week.* (*Footnote: The District Court enjoined Wisconsin from implementing the law,the Seventh Circuit stayed the District Court’s injunction, and in turn this Court vacated the Seventh Circuit’s stay.  See Frank v. Walker, ante, p. 1.)  For ex­ample, Wisconsin’s law permits a photo ID from an in­state four-year college and one from a federally recognized Indian tribe. Texas, under Senate Bill 14, accepts neither. Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs. Those who lack the approved forms of identification may obtain an “election identification certificate” from the Texas Department of Public Safety (DPS), but more than 400,000 eligible voters face round-trip travel times of three hours or more to the nearest DPS office. Op. 18, 76. Moreover, applicants for an election identification certificate ordinarily must pre­sent a certified birth certificate. Id., at 70. A birth certifi­cate, however, can be obtained only at significant cost-at least $22 for a standard certificate sent by mail. Id., at 22. And although reduced-fee birth certificates may be ob­tained for $2 to $3, the State did not publicize that option on DPS’s Web site or on Department of Health and Hu­man Services forms for requesting birth certificates.  Id., at 70.

On an extensive factual record developed in the course of a nine-day trial, the District Court found Senate Bill 14 irreconcilable with §2 of the Voting Rights Act of 1965 because it was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result. The District Court emphasized the “virtually unchallenged” evidence that Senate Bill 14 “bear[s] more heavily on” minority voters.  Id., at 133. In light of the “seismic demographic shift” in Texas between 2000 and 2010, making Texas a “majority-minority state,” 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.”  Id., at 40, 48, 128.  Cf. League of United Latin American Citizens v. Perry, 548 U. S. 399, 438-442

(2006) (Texas Legislature acted with a “troubling blend ofpolitics and race” in response to “growing” minority partic­ipation). The District Court also found a tenuous connec­tion between the harms Senate Bill 14 aimed to ward off, and the means adopted by the State to that end.  Between 2002 and 2011, there were only two in-person voter fraud cases prosecuted to conviction in Texas.  Op. 13-14. De­spite awareness of the Bill’s adverse effect on eligible-to ­vote minorities, the Texas Legislature rejected a “litany of ameliorative amendments” designed to lessen the Bill’s impact on minority voters-for example, amendments permitting additional forms of identification, eliminating fees, providing indigence exceptions, and increasing voter education and funding-without undermining the Bill’s purported policy justifications.  Id., at 35-37, 132 144-147. 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.  Id., at 133; see also Id., at 113 (proponents of Bill unable to “articulate any reason that a more expansive list of photo IDs would sabotage” their efforts at detecting and deter­ring voter fraud). On this plain evidence, the District Court concluded that the Bill would not have been enacted absent its racially disparate effects. Id., at 133.  

The District Court further found that Senate Bill 14 operates as an unconstitutional poll tax-an issue neither presented by any of the recent applications nor before the Court in Crawford v. Marion County Election Bd., 553 U. S. 181 (2008) (upholding Indiana voter identification law against facial constitutional challenge).  See Id., at 186, and n. 4.  Under Senate Bill 14, a cost attends every form of qualified identification available to the general public. Op. 140.  Texas tells the Court that any number of incidental costs are associated with voting.  But the cost at issue here is one deliberately imposed by the State.  Even at $2, the toll is at odds with this Court’s precedent.  See Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966).And for some voters, the imposition is not small.  A voter whose birth certificate lists her maiden name or misstates her date of birth may be charged $37 for the amended certificate she needs to obtain a qualifying ID.  Texas voters born in other States may be required to pay sub­stantially more than that. Op. 71-74.

The potential magnitude of racially discriminatory voter disenfranchisement counseled hesitation before disturbing the District Court’s findings and final judgment.  Senate Bill 14 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. Id., at 50-51, 54. A sharply disproportionate percentage of those voters are African-American or Hispanic. Ibid.

Unsurprisingly, Senate Bill 14 did not survive federal preclearance under §5 of the Voting Rights Act.  A three­ judge District Court unanimously determined that the law would have a prohibited discriminatory effect on minority voters. See Texas v. Holder, 888 F. Supp. 2d 113, 115, 138 (DC 2012) (Tatel, J.). Although this Court vacated the preclearance denial in light of Shelby County v. Holder, 570 U. S. ___ (2013), racial discrimination in elections in Texas is no mere historical artifact.  To the contrary,Texas has been found in violation of the Voting Rights Act in every redistricting cycle from and after 1970.  Op. 7. See, e.g., Texas v. United States, 887 F. Supp. 2d 133 (DC 2012) (Griffith, J.). The District Court noted particularly plaintiffs’ evidence-largely unchallenged by Texas- regarding the State’s long history of official discrimination in voting, the statewide existence of racially polarized voting, the incidence of overtly racial political campaigns,the disproportionate lack of minority elected officials, and the failure of elected officials to respond to the concerns of minority voters. Op. 3-13, 122-126, 144-147.

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.  To prevent that disenfranchisement, I would vacate the Fifth Circuit’s stay of the permanent injunction ordered by the District Court.

Bolding mine.


  1. A Supreme Court that is so disconnected from the reality of 2014 America that they cannot see what is happening from their ivory(!) towers.

    Or worse, so worried about what a truly egalitarian America would look like that they will do everything to prop up the discredited ideology of their patrons.

  2. Diana in NoVa

    can scarcely be believed.

    What kind of country is this and what kind of people are we to be so deeply contaminated by race prejudice?

  3. Election rigging, culture war edition

    Republicans in Texas have managed to finagle a world in which a gun permit counts as proof of voter eligibility, but a student ID does not.

    But while these tactics are an outrage, they are in a sense a mark of desperation by the Right. They know that they can’t compete electorally, and that demographics work more and more against them with every election cycle. They see the handwriting on the wall, and unable to win the argument on policy, they rely on gerrymandering and vote suppression to hold onto power for just a few more years.

    A slim extremist majority on the U.S. Supreme Court is helping to enable these tactics, but it won’t serve them for long. Democrats have gotten very good at voter turnout operations, and it won’t be long before demographic pressures overwhelm the ability of conservatives to win elections by suppressing and slicing away a few percentages here and there. It simply delays the inevitable.

    I think he’s right. We need to keep building our ground game and not despair because in the long run, the suppression tactics will fall short. Even in states that do not expect many changes in racial demographics, the old white people are dying and the young people are leaning Democratic. And why not? The Republicans’ “outreach” to them consists of denying them the right to vote.

  4. The Dangerous Legal Rule Behind The Supreme Court’s Latest Voter Suppression Decision

    At the very least, vote suppressors will often get one free election when they enact a law making it harder to vote, where the law will go into effect regardless of whether or not it violates the Constitution or federal law. Texas will get to run the 2014 election under its voter ID law. Ohio will get to cut early voting days in 2014, despite the impact these cuts will have on low-income and minority voters. And North Carolina will get to run its 2014 election under what is likely the most comprehensive voter suppression law in the country. Some or all of these laws may eventually be struck down, but that won’t unelect the people elected because of them this November.

    The lesson is that, if you allow a voter suppression law to go into effect for just one election, then the supporters of that law are likely to come up with a new way to suppress the vote if the first law is ultimately struck down. And even if the second voter suppression law is ultimately struck down, this cycle can continue forever so long as each law is allowed to be in effect for just one election. This is why, when President Lyndon Johnson proposed the Voting Rights Act to a joint session of Congress, he warned that “[e]very device of which human ingenuity is capable” was used to deny African Americans the right to vote in the Jim Crow South.

  5. Behold the cluelessness of a Republican from Wisconsin who has obviously NOT been paying attention to the last 14 years of right-wing judicial activism: Congressional Candidate: Supreme Court Is Conspiring To Prevent Scott Walker From Becoming President

    First, the Supreme Court doesn’t care which Republican is president.

    And, second, this should disqualify someone from public office:

    “My personal feeling is that this is a play to steer the outcome of the gubernatorial election so that Scott Walker wouldn’t have a chance of getting on the ticket in 2016 for the White House. I think that’s what [the Supreme Court of the United States is] trying to do.”

    THAT is seriously deranged.

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