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Thu Mar 15, 2012 at 05:56 PM CDT
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| The State of Texas is challenging the Voting Rights Act as part of a new strategy to defend its Voter ID law. While an unsettling strategy, observers have predicted such a move from Attorney General Greg Abbott for some time. Last December, Rick Hasen of the Election Law Blog wrote a column laying out the rationale for a Voting Rights Act challenge that could arise out of redistricting cases from either Texas or South Carolina.
For perspective as to why this specific strategy is important, read what he wrote about South Carolina at the time (but is equally applicable to Texas, as noted by the author here).
While many read the court's 2009 decision as an invitation for Congress to fix or update Section 5, Congress has done nothing. Meanwhile, the constitutional question has been percolating in the lower courts, and most knowledgeable observers expected the issue to get to the court in the next few years.
But it now seems pretty likely that the South Carolina case will leapfrog over those others, and ask the Supreme Court to consider the constitutional question soon, in the same term that the court is likely to decide on the constitutionality of health care legislation, Texas' new redistricting plans, and Arizona's controversial immigration measure.
While you might expect the Supreme Court to try to duck the potential for yet another blockbuster decision this term, a procedural oddity of the Voting Rights Act makes it unlikely. Most cases come up to the Supreme Court review through a petition for a writ of certiorari. The court has total discretion about whether or not to hear such cases. But a very small minority of cases-almost all of them election cases-come to the Supreme Court on a direct appeal from a three-judge court. South Carolina's expected litigation over its voter ID law will go before just such a court in Washington, D.C., with direct appeal to the Supreme Court. Unlike an ordinary denial to hear the case, a Supreme Court decision not to hear an appeal from a three-judge court is a decision on the merits, an indication that the lower court got the decision right. (That's not true with cert. denials.)
If South Carolina argues in court that it is unconstitutional to require it to submit its voter ID law for federal approval, and the three-judge court rejects that argument, it is hard to imagine the Supreme Court conservatives refusing to hear that case. And further, because this is an election-related case, it is likely to be fast-tracked like the Texas redistricting case. South Carolina is claiming it needs to use voter identification in the upcoming election to preserve the integrity of its electoral process. DoJ is blocking the state's law. This almost perfectly tees up the issue of federalism and state sovereignty.
Hasen follows up with updated thoughts on the matter in his post. |
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