Overnight the Supreme Court refused to reverse the stay imposed by the Fifth Circuit Court of Appeals and thus allowed voter ID to be required in the midterm election in Texas. This is procedural delay based on the idea that election rules shouldn’t change at the last second.
So voter ID gets one last hurrah in Texas.
But election integrity advocates shouldn’t celebrate too much. Texas Voter ID is doomed. After this next election, it is prohibited from being used.
Nor should much faith be placed in any appeal. The plaintiffs won on two separate theories under the Voting Rights Act, and both are fatal to the law. First, the court ruled that Texas voter ID was enacted with a discriminatory intent. That finding alone dooms the law. And here’s the bad news: the chances of that finding being overturned are next to zero. Proving discriminatory intent isn’t easy, but the court said the plaintiffs did it. That’s a fact-based determination and will not be overturned unless it is clearly erroneous. Appeals courts are deferential to lower courts on fact findings. Why? Because lower courts conduct the trial. Lower courts see the witnesses, even if they sweat and squirm. Appeals judges sitting in New Orleans can’t size up the witnesses like the lower court judge in Corpus Christi.
Second, Texas also lost on the results prong under the Voting Rights Act. The plaintiffs pushed an outlandish theory for sure, and one that might get overturned on appeal. They pressed the novel idea that any statistical disparity of the impact of voter ID dooms the law. If blacks have ID less often than whites, game over. The problem is that the courts have so far rejected that idea. You can be sure the Supreme Court will also.
But so what? The intent finding stands and that means that the Texas law likely gets one last hurrah in two weeks.
What’s the solution? For Texas to pass a new ID law lickety split. A new law can be in place within a few days of the Texas legislature convening in January. Pass something identical to the law approved in South Carolina or Georgia, and it’s lights out for the foes of election integrity.