Two Right-Wing Judges Reinstate Republican-Backed Voter Suppression Law

By Ian Millhiser, ThinkProgress

06 September 17

That didn't take long.

n a stroke of horrible luck for voting rights advocates, a case involving Texas’ voter ID law, which was tossed out in its entirety by a federal trial court last month, was assigned to a three-judge appeals court panel that included two of the most conservative judges in the country. Those two judges, Jerry Smith and Jennifer Elrod, reinstated the Texas law Tuesday evening over the dissent of a third colleague.

In what is almost certainly a coincidence, but a very unfortunate one for liberals, Smith and Elrod have a pattern of being assigned politically charged cases and handing down opinions that largely align with Republican orthodoxy. Smith and Elrod were behind a 2014 decision reinstating a Texas anti-abortion law — that law was eventually struck down by the Supreme Court. And they twice sat on panels halting President Obama’s efforts to allow certain undocumented immigrants to remain in the country unmolested.

Smith and Elrod’s Tuesday order is brief and offers little reasoning on the merits. It is the latest chapter in a long, ongoing lawsuit that still has several more court hearings ahead of it before it is complete.

In 2016, the conservative United States Court of Appeals for the Fifth Circuit struck down Texas’ voter ID law, noting its discriminatory impact on voters of color. Although voter ID laws are commonly justified as a measure to combat voter fraud at the polls, such fraud barely exists. Yet, as the Fifth Circuit explained, the law’s impact on minority voters is quite real. As one expert witness testified, “Hispanic registered voters and Black registered voters were respectively 195% and 305% more likely than their Anglo peers to lack” voter ID.”

In addition to holding that the law is invalid, the Fifth Circuit also sent the case back down to the trial court to determine whether the law was enacted with discriminatory intent — a question that, if answered in the affirmative, could justify striking down the law in its entirety. While that issue was pending before the trial court, the state legislature amended the law in ways that mitigate, without eliminating, its impact on minority voters.

The trial court’s August order determined that yes, the law was indeed enacted with discriminatory intent. Accordingly, it held that the amendments to the law were not sufficient to save it, and tossed the entire law out.

Tuesday’s order by Smith and Elrod stays this August order, reinstating the amended law “until the final disposition of this appeal.” Though their opinion is very short, they do argue that one of the amendments, which allows voters who are unable to reasonably obtain an ID to sign an affidavit attesting as much and still cast a ballot, “remedies plaintiffs’ alleged harm.”

A false statement on an affidavit, however, can result in a perjury conviction, so voting rights advocates fear that voters will be too afraid to sign them given this severe potential consequence.

Though Smith and Elrod’s order is temporary and the case will be reviewed by another panel of the Fifth Circuit, their temporary stay could prove quite significant — and could even potentially allow the amended law to be in effect during the 2018 election, even if that law is ultimately struck down.

A full hearing on the merits will likely take months to resolve. The appeal could stretch out even longer, moreover, if the case is taken up by the full Fifth Circuit, as it was at an earlier stage of the litigation. Meanwhile, the date of the 2018 election will draw ever closer, with Smith and Elrod’s stay still in effect.

The Supreme Court, moreover, has hewed rigidly to a rule first announced in Purcell v. Gonzalez, which establishes that, as an election draws nigh, courts should be reluctant to hand down orders changing which election laws are in effect. Thus, even if Smith and Elrod’s stay is lifted before the 2018 election, the Supreme Court could still cite Purcell for the proposition that the stay must remain in effect until after the election happens.

Two extraordinarily conservative judges, in other words, may have extended an illegal voter suppression law just long enough to allow the Republican Party to benefit from it in the next congressional election.