The court exposes another strange turn in the case. Though Texas challenged the constitutionality of Section 5:
With the consent of the parties, we deferred consideration of Texas’s constitutional challenge, explaining that this claim “shall not be addressed unless the Court denies judicial preclearance of [SB 14].”
States in the future must take their time on these cases, fully prepare, and wrap the constitutional claims tightly up with the substantive ones.
Some people still erroneously think that the Supreme Court has green-lighted voter ID per se. This is a dangerous and incorrect assumption. In the Crawford case, the court merely said voter ID was not per se unconstitutional. I have long said that Crawford provides little use for states in a Section 5 context, and today we saw exactly how that works. Today the court agreed: “Contrary to Texas’s argument, Crawford does not control this case.”
On the other hand, Crawford does have some role to play, namely in insulating states from charges they passed voter ID without any proof on in-person voter fraud. This is a favorite canard of the left — “no in-person voter fraud, not widespread, not pervasive!” Today the court rejected that: “The inquiry into whether SB 14 was enacted with discriminatory purpose thus cannot hinge on whether Texas can cite documented instances of in-person voter fraud.”
More strange and discouraging twists follow, especially when an accelerated schedule has been requested and granted. From the court:
Although Texas was able to maintain the July 9 trial date, its dilatory approach to discovery prevented it from obtaining one potentially crucial piece of evidence. Nearly a month after discovery commenced, Texas served the Attorney General with a discovery request seeking data regarding the three types of federal ID permitted by SB 14: U.S. passports, military ID cards, and citizenship certificates. Memo. in Support of Mot. to Compel, ECF No. 130-1 at 1-2. Texas sought access to this federal data to determine the number of Texas voters who lack any form of SB 14-qualifying ID. In response, the Attorney General informed Texas that because federal identification databases are outside his “possession, custody or control,” he was unable to produce them. See Order, ECF No. 179 at 2. He advised Texas to serve subpoenas on the three U.S. agencies who physically control the databases—the Departments of State, Homeland Security, and Defense. See id. at 2-3. Inexplicably, however, Texas never served these subpoenas. Indeed, for thirty days Texas failed to take any action at all vis-à-vis the federal databases. Texas finally filed a motion to compel the Attorney General’s production of the federal databases on May 21—the last possible day to file such a motion.