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.
I predict that the Fifth Circuit will stay the order, finding Purcell to be controlling. It's a conservative court. It will be a defensible ruling, but it will be wrong.
The Plaintiffs will then present an emergency application to the circuit Justice, Justice Scalia, who will refer the matter to the full court. Eight of the justices will rule predictably on the matter. The court's four conservatives (Roberts, Scalia, Thomas and Alito) will vote to stay the district court's order, and four of the five moderates (Breyer, Ginsburg, Sotomayor, and Kagan) will vote to uphold the district court order.
The swing vote will be Justice Kennedy, who, fortuitously, was the Circuit Justice in the Pursell case. So much of this will turn on his own view of what he thought he and the court were doing in that case.
Will he, for example, understand that (unlike Purcell) there has been a finding of purposeful discrimination here, and that this is not just a neutral law that happens to burden people of color? Decades of precedent recognize that material, substantial difference, between intentional discrimination and effects discrimination. See, e.g., Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 207-08 (1971) ("a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities").
Will he realize that this is a well-developed finding, not just an unexplained two-page order from an appeals panel, i.e., will he understand that it was this utter lack of explanation and reasoning is what really moved the Court in Purcell, as I have argued above?
What side of history will Justice Kennedy be on?
One ending is to let Texas move forward with a suppressive voter law, in the face of a judicial finding of purposeful discrimination, because some election officials don't want to be inconvenienced, and some poll workers will have to study extra hard to learn the law.
The other ending is to understand that administrative convenience and short deadlines cannot be used to trump a finding of intentional constitutional discrimination.
Justice Kennedy, like most judges and justices, tries his best to apply the law as he sees it to the facts as found by the trier of fact. But, holding the high office he does, I suspect he is also not insensitive to how history will judge him.
The next few days will tell us his true understanding of the Purcell case and hence, how the voters of Texas will be treated in this election.