After the ruling of the District Court in Veasey v. Perry, the defendants in the case (basically, the State of Texas and various officials), on Friday, October 10, filed appeal papers in the Fifth Circuit Court of Appeals. They made a supplemental filing on Saturday, October 11. The response of the plaintiffs (basically, a variety of voter groups, individuals, and the U.S. Government) was due at 4pm today, Sunday, October 12. UPDATE: THE PLAINTIFFS' PAPERS WERE FOUND BY PROFESSOR LEVITT AND CAN BE FOUND BY FOLLOWING THE LINKS HERE.
Texas' core argument, as everyone expected, is based on a Supreme Court case called Purcell v. Gonzalez, 549 U.S. 1 (2006) which I and others of my professional ilk have been writing a lot about in the last 2 weeks. Basically, the Purcell case says: courts, don't change election rules too close to an election by enjoining state laws or vacating injunctions enjoining state laws. And if you do, don't issue a cryptic two-page order saying you're doing it without explaining why. It is understood to apply to court action that both expands the right to vote, as well as to court orders limiting it.
The facts and procedure in Purcell were the following: Arizona adopted a voter ID law, and submitted it to the Bush 43 Justice Department for preclearance under what was then Section 5 of the Voting Rights Act; preclearance was ultimately was granted. Effectively, this was an executive branch finding that the law did not have either the purpose or effect of denying or abridging the right to vote on account of race or color. The plaintiffs disagreed and then sued to block the law. On September 11, 2006, the District Court denied the injunction, but did not give reasons for its action in an opinion until a month later. The plaintiffs appealed, and on October 5, 2006, the Ninth Circuit Court of Appeals blocked the law in a 2-page order, giving no reasons for their action. On October 20, 2006, the SCOTUS reversed the Ninth Circuit, letting the law go into effect.
In a 9-0 vote, the Court explained:
orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.
But what put it over the top for the SCOTUS was the lack of any reasoning about what was done:
Although at the time the Court of Appeals issued its order the District Court had not yet made factual findings to which the Court of Appeals owed deference, see Fed. Rule Civ. Proc. 52(a), by failing to provide any factual findings or indeed any reasoning of its own the Court of Appeals left this Court in the position of evaluating the Court of Appeals’ bare order in light of the District Court’s ultimate findings. There has been no explanation given by the Court of Appeals showing the ruling and findings of the District Court to be incorrect. In view of the impending election, the necessity for clear guidance to the State of Arizona, and our conclusion regarding the Court of Appeals’ issuance of the order we vacate the order of the Court of Appeals.
Texas argues that there are only 11 days until early voting starts in Texas and this last-minute change is wrong under Purcell. (There was also a technical issue of the district court having issued only an opinion without an order, but that was clarified as of Saturday).
The plaintiffs will probably respond with arguments that include the following: first, that unlike Purcell, there is a full written explanation of reasons, here, a Texas-sized 147 page opinion. Second, unlike Purcell, here there has been a judicial finding of purposeful discrimination (not just discriminatory effects) after a full trial. In Purcell, the claims of any discrimination (purposeful or in effect) had been reviewed and rejected by the US Justice Department (and, implicitly, by the district court).
UPDATE: The plaintiffs' arguments pretty much followed what I predicted, especially on the first grounds. The Veasey/LULAC brief hits the second point pretty hard, pointing to City of Richmond v. United States, 422 U.S. 358, 378 (1975) as argument in support, and distinguishing Rogers v. Lodge, 458 U.S. 613 (1982) as a possible contrary argument.
My predictions below the fold.
Read More
