Third, knowledgeable courtroom observers tell me that at least 2 of the 3 judges on the panel have clearly made up their minds and will rule against Texas. Judge Robert Wilkins seems to be “looking for ways to start working on his opinion against Texas,” one tells me.
Fourth, and finally, the Supreme Court doesn’t offer much hope for this sinking ship. These cases turn on complicated statistical facts and circumstantial evidence of intent. Trial courts make factual findings and appellate courts are bound by those findings. Section 5 is a fact-centric law, and therefore the trial courts have enormous power to determine outcomes. Apart from an outrageous ruling in the district court, the Supreme Court may have little to say on Voter ID because factual findings will drive the outcome, not errors of law.
Other states can learn a lesson from what is happening in a Washington, D.C., courtroom to the Texas Voter ID law. Take as much time as you need to prepare the case. Keep the constitutional challenge close in time to the trial on the merits. Don’t generate statistical data that hurt your case. And most of all, be prepared to wage war in a battle of experts. Otherwise the burden shift of Section 5 will be the undoing of other state Voter ID laws.