AUSTIN, Texas — With early voting set to begin on October 20, both supporters and opponents to SB 14, Texas’ Voter ID law, which was ruled unconstitutional earlier this month, filed a flurry of motions arguing about whether the law should be allowed to be enforced during this year’s elections. The ruling at issue by Obama appointee Nelva Gonzalez Ramos, United States District Judge for the Southern District of Texas, Corpus Christi Division, said that the law constituted an unconstitutional burden on minority voting rights as well as constituting an unconstitutional poll tax.
After the ruling was released, Attorney General Greg Abbott vowed to immediately appeal to the Fifth Circuit Court of Appeals, and filed an advisory with that court over the weekend that argued allowing Ramos’ ruling to stand would be inconsistent with Purcell v. Gonzalez, a United States Supreme Court decision holding that “voter confusion and consequent incentive to remain away from the polls” should be avoided right before elections, and that the injunction barring enforcement of the law puts the section establishing a free election identification certificate program in limbo. Accordingly, on Monday, Abbott filed a motion to stay the decision by Judge Ramos, arguing “[c]onfusion over when the district court’s promised injunction against SB 14 will issue is not acceptable on the eve of early voting.”
The Quorum Report‘s Kimberly Reeves notes an objection to this argument filed by Obama’s Department of Justice, which is a party to this case opposing the law. “[T]he DOJ argues the new voter ID would be the confusing part for registered voters,” writes Reeves. “Texas voters are used to the old standards. Therefore, the state’s suggestion of ‘voter confusion’ by a last-minute change in election procedures, which was litigated in Purcell v Gonzalez, should not apply.”
What Reeves and the DOJ fail to recognize is that, in fact, SB 14 is the “old standard.” As Abbott argues in his motion, “SB 14 is the status quo in Texas; it has been the status quo for 15 months and has governed numerous statewide and local elections.” Moreover, as Breitbart Texas legal analyst Lana Shadwick reported, substantial preparations have already been made for this year’s election, with SB 14 as the legal standard. “We are in the middle of training over 1500 Election Judges and Alternate Judges,” Harris County Clerk Stan Stanart told Shadwick. “On Election Day, with 769 polling locations, it takes approximately 6,000 workers to run elections in Harris County. Swapping out forms, providing additional training materials, and properly communicating changes this late before voting is a big job.” Abbott’s motion also makes this argument, pointing out that the Secretary of State has already published and distributed training manuals, and that training was well underway for the approximately 25,000 poll workers statewide.
Abbott also points out an unusual wrinkle in the legal proceedings: because the plaintiffs only sued state officials, and not county officials, and Judge Ramos’ decision was a district court opinion with no precedential power to bind non-parties, allowing the decision to stand as it currently is would result in county election officials still bound to comply with SB 14 and check for photo ID — under threat of criminal penalty if they fail to comply — while state election officials would be legally barred by the court’s injunction from complying with SB 14.
One final interesting legal issue with this case is that Abbott also filed a request to maintain the motion under seal, barring it from public disclosure. Other than the brief setting out the main legal arguments, most of Abbott’s supporting evidence will remain confidential, including, as described in the motion “confidential deposition transcripts and confidential email communications between Democratic members of the Texas Legislature and outside political organizations.” Abbott obtained the consent of many but not all of the plaintiffs to keep these documents under seal, as they were also maintained in the district court proceedings.
The next steps for court watchers is to see what other motions are filed by the parties, if any, and then to wait to see if the Fifth Circuit will indeed issue a ruling before the election begins, with the October 1 as the first day of early voting being viewed as the key deadline.
Follow Sarah Rumpf on Twitter @rumpfshaker.