Lawyers for the Justice Department and intervenors in the Texas voter ID case told the court yesterday that the court should put off consideration of Texas’ claim that section 5 of the Voting Rights Act is unconstitutional until the Supreme Court decides the pending Shelby County v. Holder case next year.
That case involves a challenge to the statute by Shelby County, Alabama, contending that Congress acted without sufficient evidence in 2006 in extending section 5 coverage for another 25 years and that the formula for determining what states and sub-divisions are subject to section 5 is outdated.
The State of Texas disagreed and told the court that it should go ahead and decide the constitutional question being raised in the Texas case or otherwise its voter ID law “will be stuck in limbo until the end of the current Supreme Court term.”
The state told the court that “while Texas’s constitutional claims overlap with Shelby County’s to some extent, they may present distinct arguments (such as a challenge to the “non-retrogression” doctrine) whose resolution will not be affected or informed by the opinion in Shelby County.”
In the alternative, the state asked the court to enter a final order denying preclearance so that the state could go ahead and separately appeal the ruling on that portion of its claims to the Supreme Court. The intervenors told the court the state had missed its window to request such relief.
Here are the parties’ position papers:
The State of Texas has asked the court in the voter ID case to enter a final judgment as to its denial of preclearance so that portion of the case can be appealed to the Supreme Court without waiting for a decision on the state’s challenges to the constitutionality of section 5.
The state’s motion can be found here.