WASHINGTON — More than two hours before sunrise on Saturday morning, with no reasoning given to explain its decision, the Supreme Court declined to stop Texas' strict voter ID law from being used in the upcoming election.
Texas' law allows seven forms of acceptable identification for voters — the list includes concealed handgun licenses, but excludes college student IDs, which are accepted in other states with similar voting restrictions, the Associated Press reported.
The court's decision, on its face, appeared to echo other recent decisions from the court in election law cases, with a result that aims at preventing late-minute election law changes from disrupting upcoming elections with confusion.
The ruling also, though, sparked an outcry from Justice Ruth Bader Ginsburg, who warned that the court's decision could have the effect of "prevent[ing] more than 600,000 registered Texas voters (about 4.5% of all registered voters) from voting in person for lack of compliant identification" — noting that a "sharply disproportionate percentage of those voters are African-American or Hispanic."
The court's principle for keeping the law in effect — although not laid out in any opinion on Saturday — appears to come from a 2006 Supreme Court case called Purcell v. Gonzalez, in which the court declared, "Court 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."
In cases out of Ohio, North Carolina, and then Wisconsin, the justices — in similar unexplained actions — granted or refused to grant requests, as the case presented the issue, that ensured no last-minute changes would take effect.
In the Texas case, a federal district court judge, after a multi-day trial, ruled on Oct. 9 that the law is unconstitutional — at one point likening the restrictions to a poll tax. Less than a week later, however, the 5th Circuit Court of Appeals put the trial court ruling on hold pending the outcome of the state's appeal — putting the law back into effect for the upcoming election. Civil rights groups and the Justice Department had asked the Supreme Court to vacate the 5th Circuit's stay — which would have halted enforcement of the law.
The Supreme Court, however, denied the request in a decision released by the court at 5:05 a.m. Saturday morning.
Asked about the timing of the decision, SCOTUSblog's Lyle Denniston, who has covered the court for decades, said it was very unusual. "I would have to go back and look at some of the process of Bush v. Gore, but my best recollection is that most of the orders in that case came out when normal people were up and functioning," he told BuzzFeed News Saturday evening. "I do not remember even a death penalty case being held until 5 in the morning, frankly."
He wrote that he guessed there were "heavy negotiations" over the decision, leaving Ginsburg to write her opinion overnight. "But that is only my best surmise," he added. "I have no hard evidence other than, of course, the remarkable passage of time through the night."
NPR's Nina Totenberg — another longtime Supreme Court reporter — echoed Denniston, telling BuzzFeed News, "These election cases in days gone by were hairy too but ... I just don't remember a 5 am release" — cautioning that she couldn't trust her memory on the issue. At the same time, however, she noted that "they couldn't do it at 5 am in the old days" because there would have been "no way to release it" — a contrast to the email containing the order that reporters covering the Supreme Court action on the Texas case received.
In all of these recent voting cases, the Supreme Court action relates only to whether a lower court decision should be allowed to go into effect during the state or plaintiffs' appeal of those rulings. The Supreme Court has not ruled on whether any of the voting restrictions are themselves constitutional.
In Ginsburg's strongly worded dissent on Saturday morning — in which she was joined by Justices Sonia Sotomayor and Elena Kagan — she said the request out of Texas was different from the Ohio, North Carolina, and Wisconsin cases.
"True, in Purcell and in recent rulings on applications involving voting procedures, this Court declined to upset a State's electoral apparatus close to an election," Ginsburg wrote. "Since November 2013, however, when the District Court established an expedited schedule for resolution of this case, Texas knew full well that the court would issue its ruling only weeks away from the election. The State thus had time to prepare for the prospect of an order barring the enforcement of Senate Bill 14."
After detailing the history of challenges to Texas' voting restrictions, Ginsburg concluded: "The greatest threat to public confidence in elections in this case is the prospect of enforcing a purposefully discriminatory law, one that likely imposes an unconstitutional poll tax and risks denying the right to vote to hundreds of thousands of eligible voters." For that reason, she wrote, she would not have allowed the law to remain in effect during the upcoming election.
Alison Vingiano contributed to this report.
The story was updated to include comment from Lyle Denniston about the timing of the decision.
The story was updated to include comment from Nina Totenberg about the timing of the decision.
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at email@example.com.
Got a confidential tip? Submit it here.