| When you have an overtly political law to defend, file an overtly political lawsuit.
Back in September, we predicted that the new Voter ID law (Senate Bill or SB 14) passed by the Texas Legislature and signed into law by Governor Perry would find its way into federal court. Better late than never, the state did not disappoint. Yesterday, Texas Attorney General Greg Abbott filed a lawsuit in federal district court in the District of Columbia demanding a declaratory judgment by the court that SB 14 take effect immediately "because it neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, nor will it deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group."
Briefly, Texas has been unable to implement SB 14 because it has been awaiting preclearance to do so from the U.S. Department of Justice pursuant to Section 5 of the Voting Rights Act (the "Act"). For background on why this is the case, as well as more information on preclearance and Sections 2 and 5 of the Act, see our past articles here and here.
The gravamen of yesterday's lawsuit is that the state of Texas must seek relief from the federal court because DOJ is taking too long to decide whether to grant SB 14 preclearance. Normally, such complaints are reserved for a deli or the department of motor vehicles. Maintaining that conceit, however, the state has pulled the number two - as in recent memory, it is the second state, right behind South Carolina, the voter identification laws of which have drawn the critical eye of DOJ. As the Texas lawsuit notes several times, DOJ ultimately refused to preclear the voter identification law at issue in South Carolina.
Learn more about the complaint below the jump.
|The complaint in the lawsuit takes a clever tack, and while acknowledging that the South Carolina law was struck down, doesn't dwell on the South Carolina law for too long, instead preferring to align itself with states such as Wisconsin, Kansas and Indiana, which themselves passed voter identification laws which are now in effect. The complaint, however, neglects to remind the federal court in D.C. that, unlike Texas, the states of Wisconsin, Kansas and Indiana are not covered jurisdictions under the Act. This means that there is no federal law in place requiring them to ask the federal government for preclearance before they decide whether to impose new voting requirements. (For background on covered jurisdictions, see the articles cited above). In distancing itself from South Carolina, which is a covered jurisdiction, and attempting to cozy up to three Midwestern and Plains states, Texas is making the argument that it is a covered jurisdiction, but it's not that type of covered jurisdiction.
The state's complaint goes on to rely heavily on a Supreme Court case from 2008, which upheld an Indiana law concerning photo identification, Crawford v.Marion County Election Bd., 553 U.S. 181 (2008). Crawford is the governing law, but there are distinctions between the law at issue in Crawford, and SB 14 in Texas (for starters, the law in Crawford was an Indiana statute, which is - again - not a covered jurisdiction under the Act). The Crawford decision is available for view and digestion here.
In addition to making the above analogies and distinctions, the Texas complaint seeks refuge in the Tenth Amendment. The Tenth Amendment is often bandied about in the name of states' rights, and reads as follows:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend X.
The state invokes this amendment, arguing that if the Texas SB 14 is not precleared by either DOJ or the federal court, there will be an impermissible conflict between the Tenth and Fifteenth Amendments. The text of the Fifteenth Amendment is below:
"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation" U.S. Const. amend XV.
Moreover, the lawsuit complains that if SB 14 is not precleared, there will be "grave" or "serious" constitutional questions that will arise, and the state of Texas seeks to prevent the court from having to concern itself with these serious questions. This, of course, begs the question of, "well, why else have judges?" That aside, the state's argument itself raises two "serious" questions, one procedural and one substantive.
As to the procedural question, it is a fundamental canon of Anglo-American common law that courts do not render advisory opinions. Generally speaking, courts may only decide controversies. Therefore, if the state is going to the court under the guise of saving them the trouble to decide a controversy, how can they be in the court to ask that question in the first place?
As to the substantive question, the state's complaint relies on alleged powers reserved to it under the Tenth Amendment and perceived conflicts with the Fifteenth Amendment. This tension dissipates, however, when one accepts the twin premises that the Fifteenth Amendment was passed in order to confer rights on individuals that the states had spent nearly a century denying to those individuals thereby carving out room for the Voting Rights Act, and that the Act was therefore a legitimate exercise of Congressional authority in the wake of certain states continuing to deny those contemplated rights to the individuals residing in them. To restate, Texas' Tenth Amendment argument can only succeed if one first assumes that the Act does not apply to Texas in the first place. In short, it presupposes what it seeks to prove without providing any discernible or credible argument in its support.
In an interesting footnote, the state's lawsuit mentions the fact that Georgia passed and received preclearance for a voter identification law in 2005. It then notes that a covered jurisdiction such as Georgia received preclearance "simply because it was fortuitous enough to seek
administrative preclearance during a previous Administration."
The state's complaint may be viewed here.