The courts giveth, and the courts taketh away

As expected, the Fifth Circuit lifts the stay on the district court’s voter ID ruling, paving the way (for now) for it to be enforced in November.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas should require photo voter identification in this year’s general election, the 5th U.S. Circuit Court of Appeals ruled Tuesday, overturning an earlier ruling by a federal district judge in Texas.

“This is not a run-of-the-mill case; instead, it is a voting case decided on the eve of the election,” the appeals court judges wrote. “The judgment below substantially disturbs the election process of the State of Texas just nine days before early voting begins. Thus, the value of preserving the status quo here is much higher than in most other contexts.”

The plaintiffs — including the Campaign Legal Center and the NAACP Legal Defense Fund — plan to ask the U.S. Supreme Court to overturn Tuesday’s ruling.


“On Saturday, October 11 — just nine days before early voting begins and just 24 days before Election Day — the district court entered a final order striking down Texas’s voter identification laws,” the appeals court said in its order. “By this order, the district court enjoined the implementation of Texas Senate Bill 14 of the 2011 Regular Session, which requires that voters present certain photographic identification at the polls. The district court also ordered that the State of Texas instead implement the laws that were in force before SB 14’s enactment in May of 2011. Based primarily on the extremely fast-approaching election date, we STAY the district court’s judgment pending appeal.”


One of the three judges who ordered the stay — Gregg Costa — did so only because of recent decisions that favor order in elections over the laws in question.

“The district court issued a thorough order finding that the Texas voter ID law is discriminatory,” he wrote. “We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory… I agree with Judge [Edith Brown] Clement that the only constant principle that can be discerned from the Supreme Court’s recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis.”

The plaintiffs will go to the U.S. Supreme Court to attempt to block the use of the state’s voter ID law.

A copy of the ruling is here. It’s important to note that this isn’t a ruling on the merits of the district court decision. It’s merely a continuation of the current status quo, which is what the Supreme Court has held to be the main standard in near-election rulings. One can certainly argue that going back to the previous status quo, which is what the vast majority of voters in this election are accustomed to, would be less disruptive, and I’m sure the plaintiffs will make that case to the Supreme Court. Rick Hasen, who correctly predicted the Fifth Circuit’s ruling, thinks an appeal to SCOTUS on those grounds might have a chance. Be prepared to bring your ID, but don’t give up hope quite yet. Newsdesk, SCOTUSBlog, PDiddie, BOR, the Brennan Center, and the Texas Election Law Blog have more.

Meanwhile, as totally not expected, SCOTUS put HB2 back on ice pending appeals, thus reversing the Fifth Circuit’s atrocious ruling from earlier this month.

A provision of the Texas abortion law that closed all but eight abortion facilities in the state almost two weeks ago was temporarily put on hold Tuesday by the U.S. Supreme Court.

The decision comes a week after attorneys representing a coalition of abortion providers in the state asked the Supreme Court to reinstate a U.S. district court ruling that had blocked a key provision that requires abortion facilities to meet the same hospital-like standards as ambulatory surgical centers. Those include minimum sizes for rooms and doorways and having pipelines for anesthesia.

A three-judge panel of the U.S. 5th Circuit Court of Appeals had overturned that ruling and allowed the provision to go into effect as the appeals process continues, shutting down most of the state’s facilities. The 5th Circuit is still weighing the constitutionality of the law.

In Tuesday’s ruling, the Supreme Court also overturned the provision of the abortion law, which is known as House Bill 2, that requires doctors who perform abortions to obtain admitting privileges at a hospital within 30 miles for two facilities: Whole Woman’s Health in McAllen and Reproductive Services in El Paso.

Representatives for the abortion providers were quick to celebrate the Supreme Court’s decision as they await the appeals court’s ruling on the law.

“The U.S. Supreme Court gave Texas women a tremendous victory today,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which is representing the abortion providers in the case. “Tomorrow, thirteen clinics across the state will be allowed to reopen and provide women with safe and legal abortion care in their own communities.

Here’s that ruling. Gotta admit, I did not expect this outcome. Again, this is not a decision on the merits of the appeal, so caution is merited. The Fifth Circuit still gets to decide that, and we all know how badly they suck. But as SCOTUSBlog suggests, perhaps the Fifth Circuit misread the Supreme Court’s tea leaves on this. Keep hope alive. Hair Balls, Newsdesk, the Current, Texpatriate, Wonkblog, and Kos have more.

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One Response to The courts giveth, and the courts taketh away

  1. As I discuss a bit, I think we’re seeing bright lines, or at least hints of them, as to where SCOTUS will — and will not — go vis a vis Roe-related issues:

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