The Texas League of Young Voters filed an amended complaint today expanding its claims in the Texas voter ID litigation to include a non-race based claim under the equal protection clause of the Fourteenth Amendment.
The amended complaint said that in addition to discriminating on the basis of race, the Texas voter ID law “imposes severe, unconstitutional burdens on the right to vote of many Texas citizens, particularly those who are poor” and was “not justified by any legitimate, countervailing state interest” because it “targets a problem that does not exist in fact.”
The League’s complaint previously only made claims under section 2 of the Voting Rights Act and under the race discrimination provisions of the 14th and 15th Amendments
The League’s amended complaint also added three students at Texas Southern University in Harris County as plaintiffs.
The Veasey plaintiffs, Mexican-American Legislative Caucus/NAACP plaintiifs, and the South Texas plaintiffs - who filed a separate suit last week - also are asserting non-race based claims under the 14th Amendment.
From Rick Hasen comes this timely piece looking at whether election law changes should be looked at from the standpoint of race or party politics.
That’s a particularly relevant question in places, like Texas, where voting patterns often have been highly polarized.
As Hasen writes:
When party and race coincide as they did in 1900 and they do today, it is much harder to separate racial and partisan intent and effect. Today, white voters in the South are overwhelmingly Republican and, in some of the Southern states, are less likely to be willing to vote for a Black candidate than are white voters in the rest of the country … Given the overlap of considerations of race and considerations of party, when a Republican legislature like North Carolina’s passes a law making it harder for some voters to vote, is that a law about party politics or a law about race? … [I]f courts call this a law about party politics and view it through the lens of partisan competition, then the law is more likely to stand, and the fight over it will be waged at the ballot box. If the courts call this a law about race and view it through the lens of the struggle over race and voting rights, then the law is likely to fall and the fight will be settled primarily in the courts.
But ultimately, Hasen argues for a new standard - at least outside of redistricting cases:
The race versus party bifurcation is unhelpful, and the solution to those new battles over election rules - what I call ‘The Voting Wars’ - is going to have to come from the federal courts. Courts should apply a more rigorous standard to review arguably discriminatory voting laws. When a legislature passes an election administration law (outside the redistricting context) discriminating against a party’s voters or otherwise burdening voters, that fact should not be a defense. Instead, courts should read the Fourteenth Amendment’s Equal Protection Clause to require the legislature to produce substantial evidence that it has good reason for burdening voters and that its means are closely connected to achieving those ends. The achievement of partisan ends would not be considered a good reason (as it appears to be in the redistricting context). These rules will both discourage party power grans and protect voting rights of minority voters.
The whole thing is worth a couple of reads.
A group of Hispanic and African-American voters from South Texas have joined the litigation fray over Texas voter ID law with a new lawsuit filed in Corpus Christi.
Like the existing suits, the new suit:
However, in addition, the suit makes two claims under the Texas Constitution, arguing that the law violates the guarantee of “a free and equal vote in Texas elections” in Article I, sec. 3 as well as the guarantee of “equality under the law regardless of race, sex, color, creed, or national origin” in Article 1, sec. 3a.
The suit specifically challenges implementation and enforcement of the law’s “substantially similar” name matching requirement, arguing that “discretion lies exclusively with individual election judges and election clerks” and that “[r]egardless of instructions and suggestions from the Secretary of State, standards and interpretations will vary significantly across the 254 counties of Texas and will adversely impact women and Hispanics more than Anglo non-Hispanic men.”
The plaintiffs are represented by Texas Rio Grande Legal Aid. Hidalgo County-based community civic group La Union del Pueblo Entero (LUPE) also is a plaintiff in the suit.
Late yesterday, the parties filed their proposals for handling discovery in the Texas voter ID case.
While the parties were able to agree on a number of issues, they were not able to agree on a single discovery schedule. Instead, the Justice Department - joined by MALC, the NAACP, and Texas League of Young Voters - submitted one proposal, the State of Texas another, and the Veasey plaintiffs a third.
The major division centered around how long it would take to get the case ready for trial - with DOJ and the State of Texas each proposing schedules that would set trial in the case for March 2015.
However, the Veasey plaintiffs told the court that a 2015 was too late because it would come after the November 2014 elections:
The Veasey plaintiffs propose a schedule that - unlike the other parties’ schedule - would provide an opportunity for plaintiffs to obtain relief on behalf of Texas voters in time for the November 2014 elections, the first major turnout elections in which Texas seeks to enforce the Voter ID law. The Veasey plaintiffs believe it is critically important to obtain a decision on SB 14’s validity before, not after, the first major elections, and they further believe it is feasible for the parties and the Court to have a trial on such a schedule.
Instead, under the Veasey plaintiffs schedule, the court would hold trial in September 2014.
DOJ told the court, however, that a limited period of discovery after the 2014 election would let evidence from that election be considered at trial. DOJ also argued that the need for extensive database discovery and other discovery issues would make it hard to try the case before the 2014 election.
Judge Nelva Gonzales Ramos holds a hearing on the discovery and scheduling proposals on November 15, at 9 a.m. in Corpus Christi.
Lawyers for the Justice Department filed papers yesterday opposing the request of the pollwatching group, True the Vote, to intervene in the Texas voter ID litigation.
DOJ said True the Vote was not entitled to intervene as a matter of right under Rule 24 since it failed to show any “‘direct, substantial, legally protectable interest’ in the action” and could not intervene simply based on the subjective concerns of its funders and volunteers:
A voter’s subjective confidence in the integrity of elections is not a sufficient basis for intervention as of right, both because it is a generalized interest that can be asserted by any voter, and because no voter can suffer a concrete and particularized injury resulting from it.
DOJ also took issue with True the Vote’s assertion that it could intervene because “its funders and volunteers have an interest ‘in ensuring their votes are not diluted as a result’ of unlawful voting that might be prevented by enforcement of SB 14” - noting in its objection that a federal district court in Florida had rejected a similar claim made by True the Vote in litigation there.
Lastly, DOJ said that True the Vote had not shown why its interests were not adequately represented by the State of Texas:
The position of the State of Texas and True the Vote regarding defense of SB 14 and the need for Section 3 relief are essentially identical. In addition, the record from the Section 5 declaratory judgment action concerning this very same legislation has demonstrated that Texas has vigorously defended SB 14. The State’s recent motion to dismiss the complaints challenging SB 14 filed in this case including the United States’ complaint, demonstrates that the State intends to continue to mount a vigorous defense in the instant action.
In a separate filing, DOJ said it did not oppose intervention on a permissive basis by the Texas Association of Hispanic County Judges and County Commissioners.
The State of Texas filed a motion this afternoon asking Judge Nelva Gonzales Ramos to dismiss pending voter ID suits on several grounds.
First, the motion argued that elected officials like Congressman Marc Veasey, governmental bodies like Dallas County, and community groups like the Texas League of Young Voters “lack [legal] standing to assert the third-party rights of voters.”
The motion said that under case law on standing, a “plaintiff cannot sue to vindicate the right of third parties unless he clearly alleges and demonstrates that the third-party rights-holders face a ‘hinderance’ to protecting their own rights.” In this case, the motion argued that “[a]ny voter who suffers injury in fact as a result of Senate Bill 14 can sue to challenge it, and there is no shortage of capable and highly motivated attorneys willing to provide representation free of charge.”
The motion also argued that three of the individual plaintiffs had failed to assert an injury sufficient to create standing to sue under Article III of the Constitution.
The motion said that the state’s voter ID allows people to vote as long as the name on their ID is “substantially similar” to the name on voter rolls and that the three plaintiffs had failed to “plead facts showing that the names on their photo identification and voter-registration certificate are not ‘substantially similar’ under the standards established by the Secretary of State.”
The motion also broadly challenged the substantive merits of the suits, telling the court that each of the plaintiffs - including the Justice Department - had failed to state a claim on which relief can be granted.
The motion argued that:
Senate Bill 14 does not ‘deny’ or ‘abridge’ the right to vote, because anyone who lacks photo identification can get an election-identification certificate. The plaintiffs have not alleged that anyone in Texas is unable to obtain this identification. They claim only that the ‘burden’ of obtaining photo identification will cause some people to choose not to obtain it. That is not sufficient to allege a ‘denial’ or ‘abridgment’ of the right to vote.
Laws requiring voters to present photo identification are no more a ‘denial’ or ‘abridgment’ of the right to vote than laws that require voter registration or in-person voting at polling places. The Supreme Court specifically held in Crawford that the inconvenience associated with obtaining photo identification is no more significant than the ‘usual burdens of voting.’
The state said that accepting the plaintiffs’ interpretation would mean that almost any voting law would result in a violation of section 2 of the Voting Rights Act since “[n]o voting law will have an impact that is symmetrical across all races,” arguing:
Surely the Attorney General does not believe that the Voting Rights Act requires every State to abolish in-person voting and allow everyone to vote by mail, as Oregon has done. But that result logically follows from the Attorney General’s contention that lack of access to motor vehicles among racial minorities prohibits Texas from enacting a voter-identification law.
Comparing the voter ID law to felon disenfranchisement laws, the state’s brief noted that:
Felon-disenfranchisement laws have been repeatedly attacked on the ground that they disproportionately affect racial and language minorities. Yet courts have uniformly held that felon-disenfranchisement laws do not ‘result in’ a denial or abridgment of the right to vote on account of race or color, or because of one’s membership is [sic] a language-minority group. To the extent that felon-disenfranchisement laws deny or abridge the right to vote, they do so on account of one’s past criminal convictions, not on account of race or color or membership in a language-minority group. The same logic applies to voter identification laws.
For similar reasons, the motion said that there was no violation of the 14th or 15th amendments of the Constitution.
More summarily, the motion also rejected claims that the state’s voter ID law had been enacted by the Texas Legislature with a discriminatory intent.
Under the briefing schedule adopted by the court, the plaintiffs have until November 22 to respond.
The three-judge panel in the Texas redistricting case issued a scheduling order this afternoon setting the start of trial for July 14, 2014.
The court’s order said that at trial:
The claims and issues will be presented sequentially, beginning with the remaining claims related to the 2011 redistricting plans, then proceeding with requests for Section 3(c) relief based on alleged unconstitutional infirmities in the 2011 plans, then continuing with evidence relating to the 2013 redistricting plans, and concluding with requests for Section 3(c) relief based on alleged unconstitutional infirmities in the 2013 plans.
The court’s order did not set a fixed amount of time for trial but said that trial “would continue from day to day until complete.”
The order also set a number of pre-trial deadlines:
April 2 - Deadline for dispositive motions.
May 14 - Deadline to complete supplementation of discovery.
June 2 - Deadline for bench briefs on section 3 relief and for pre-trial disclosures.
July 2 at 8:30 a.m. - Pretrial conference.
The schedule adopted by the court largely tracks the scheduling proposal made by the State of Texas, which had strongly pushed for a single unified trial on the 2011 and 2013 maps.
By contrast, in their scheduling proposal, African-American and Hispanic plaintiffs and the Justice Department had asked the court to first take up disputes about the 2011 maps - proposing a short trial on those claims in January 2014 to be followed by a trial on the 2013 maps in September.
The Texas voter ID litigation geared back up today, with the court setting a number of new or revised deadlines now that the government shutdown is over.
Responses to motions by True the Vote and the Texas Association of Hispanic County Judges and County Commissioners to intervene are now due October 30.
The parties joint discovery plan is now due November 4.
And the court will hold the initial case conference - originally set for October 25 - on November 15 at 9:00 a.m. in Corpus Christi.
In addition, the State of Texas advised at this morning’s status conference that it would be filing a motion to dismiss the litigation and that the parties had agreed to the following schedule for briefing the motion:
State’s motion to dismiss due October 25.
Responses from the plaintiffs due November 22.
State’s reply due December 6.
Project Vote has asked the full Fifth Circuit court of appeals in New Orleans to reconsider a 2-1 ruling earlier this month which held that Texas voter registration laws did not violate either the National Voter Registration Act or the Constitution’s 1st or 14th amendments.
Project Vote had argued that the NVRA preempted state law requirements that deputy voter registrars return completed voter registration cards in person to central voter registration offices and prohibited photocopying of completed registration cards.
The group also argued that state law requirements that deputy voter registrars be Texas residents - and mandating that they be deputized through a separate process each county in order to register voters from that county - were unconstitutional.
Lawyers for the Justice Department filed a short advisory late Thursday afternoon in the Texas voter ID case updating the court on DOJ’s resumed operations.
The advisory told the court that the department’s lawyers were back at work and that at tomorrow’s status conference “counsel for the United States will be prepared to discuss with the Court a proposal for rescheduling deadlines that the United States had previously moved to stay during the lapse in government appropriations.”
The parties - and Texans - are waiting to see how the San Antonio court decides to tee up remaining disputes over the 2011 and 2013 state house and congressional maps, as well as claims that Texas should be bailed back into preclearance coverage under section 3 of the Voting Rights Act.
In the mean time, a few additional pleadings from the parties:
First, in the main redistricting case, the State of Texas filed a supplemental response to the scheduling proposal made jointly by African-American and Hispanic plaintiffs and the Justice Department.
The response reiterated the state’s view that there should be a single trial on the 2011 and 2013 maps in July 2014. However, it said that even if the court were inclined to take up disputes about the 2011 maps first - as recommended by DOJ and minority plaintiffs - January was too soon for a trial.
And over in the state senate case, the parties have finished briefing the issue of the Davis plaintiffs’ entitlement to an award of attorneys fees and expenses. The original fee request can be found here. The state’s response can be found here, and the Davis plaintiffs’ reply here.
To answer several questions:
The Texas voter ID litigation hasn’t been knocked too much off schedule yet with the government shutdown - but that could change if the shutdown doesn’t end relatively soon.
Thus far, the Corpus Christi court has been calling the parties together each Friday for a telephonic status conference on the shutdown but has not ordered any major deadline changes.
However, the first major scheduling conference in the case is set for October 25, and that hearing likely will need to be postponed if the Justice Department is without lawyers who can represent it in the case.
And based on an announcement yesterday from the Administrative Office of U.S. Courts, the federal judiciary itself may run out of money to operate on October 17.
In the mean time, the case is in semi-hiatus.
The State of Texas is expected to file its formal answer in the case on October 25, but most other activity in the case is currently on hold by voluntary agreement of the parties.
Today was the deadline set by the San Antonio court for the parties in the Texas redistricting case to submit proposals on how to move the case forward.
Although the court expressed a preference for a single unified proposal, it (predictably) got two - one from the State of Texas and a joint one from the Justice Department and African-American and Hispanic plaintiffs.
The DOJ/redistricting plaintiffs proposal would have the panel take up claims about the 2011 and 2013 maps in two separate - but partially overlapping - phases.
In the first phase, the fall and early winter would be used a brief period of discovery on the 2011 plans as well as claims for section 3 relief based on those plans. This would be followed by a late January 2014 supplemental evidentiary hearing on the 2011 maps and a hearing on bail-in issues in April.
In the mean time, the parties would engage in a more extensive period of discovery on the 2013 maps, culminating in a full trial in September 2014.
African-American and Hispanic plaintiffs said in a separately filed advisory accompanying the proposed schedule that both “practical reasons” and “the interests of judicial economy” merited the two-pronged approach.
They noted, for example, that while the the evidentiary record on the 2011 maps was “close to complete,” disputes about the 2013 maps would require looking at a completely different set of evidence:
For example, the Texas House Redistricting Committee Chairman Burt Solomons and map drawers Gerardo Interiano and Ryan Downton (all of whom played a major role in creating the 2011 redistricting plans) were no longer in or employed by the Texas Legislature at the time the Legislature passed the 2013 redistricting plans. New legislators and staff will have knowledge related to adoption of the 2013 plans … [H]earing evidence related to the 2011 and 2013 redistricting plans simultaneously raises the possibility of confusion as the parties try to separate and distinguish the witness testimony and exhibits and assign different testimony and exhibits to different redistricting plans.
They also told the court that reaching bail-in claims quickly would “ensure as continuous a preclearance coverage regime in Texas as possible” if the court were to determine that the predicate intentional discrimination existed in the 2011 maps.
DOJ agreed, telling the court in its advisory that there was “no need to delay a final merits determination of claims and requests arising out of the 2011 plans until claims arising out of the 2013 plans are ready for trial.”
By contrast, the state’s proposal would have the court conduct a joint trial on the 2011 and 2013 maps in July of next year.
The state said that the two-pronged approach offered by DOJ and redistricting plaintiffs would “not lead to an efficient resolution of the claims asserted” and would “lead to prolonged appeals, thereby increasing the risk of interference with the 2016 election cycle.”
Lawyers for the Justice Department have asked Judge Nelva Gonzales Ramos for a partial stay of the Texas voter ID case, telling the court that under the federal government shutdown “Department of Justice attorneys and employees are prohibited from working, even on a voluntary basis, except in very limited circumstances, including ‘emergencies involving the safety of human life or protection of property.’”
As requested, the stay would extend to “any briefing, responses on behalf of the United States to any pending motions … court appearances, discovery obligations, and pre-discovery obligations.”
Judge Ramos has scheduled a telephonic hearing on the motion for Friday, October 4, at 1:30 p.m.
Lawyers for DOJ told the court they had been advised that the State of Texas, NAACP, and League of Young Voters did not oppose granting of the stay.
In a separate response, lawyers for Congressman Marc Veasey and a group of African-American and Hispanic plaintiffs said they also did not oppose a stay as to obligations of the United States but took the position that the stay should not impact - for now at least - upcoming deadlines between the state and the Veasey plaintiffs.
It noted, however, that the Veasey case very well could come to be affected “if the lapse of appropriations continues for an extended period.”
As of this morning, DOJ has not made a similar request for a stay in the Texas redistricting case.
The Mexican-American Legislative Caucus, NAACP, and League of Young Voters have filed a response asking that all deadlines for all parties in the three pending voter ID cases be stayed, other than the October 25 deadline for the State of Texas to file its formal answer to the complaints.
The Texas Association of Hispanic County Judges and County Commissioners also has asked for permission to join the Texas voter ID suit in opposition to the law.
A copy of the association’s motion can be found here.
Much like complaints filed by the Justice Department and other plaintiffs, the association’s proposed complaint argues that the law violates the 14th and 15th amendments of the Constitution as well as section 2 of the Voting Rights Act.