The Supreme Court just imposed what could prove to be a very significant deadline on one of the most conservative federal appeals courts in the country.
Last month, the United States Court of Appeals for the Fifth Circuit announced that it would hear a challenge to Texas’ voter ID law in an en banc proceeding — a process where the court’s full active membership sits to hear a case. Previously, a panel of three judges of this court, which included a conservative George W. Bush appointee, voted to strike down the law. The full court’s decision to rehear the case is a likely sign that a majority of the Fifth Circuit is inclined to let Texas’ law stand.
Voter ID is a common method of voter suppression which has a disproportionate impact on students, low-income voters and voters of color — all of which are groups that tend to prefer Democratic candidates over Republicans.
Shortly after the full Fifth Circuit announced that it would hear this case, entitled Veasey v. Abbott, plaintiffs challenging the voter ID law asked Justice Clarence Thomas to temporarily halt the law (under the Supreme Court’s rules, such requests typically must be addressed to a single, designated justice, who typically refers significant matters to the full Court). On Friday, the justices turned down this request.
The Supreme Court’s single paragraph order is not particularly surprising. The Roberts Court has a record of permissiveness towards voter suppression laws such as voter ID. Though Justice Antonin Scalia’s recent death stripped conservatives of their majority on the Supreme Court, it still takes five votes to halt a voter ID law — meaning that the Court’s liberal bloc still needs to recruit at least one conservative justice in order to block such a law.
Nevertheless, the Supreme Court’s Friday order does include a very thin silver lining for opponents of voter suppression. “The Court recognizes the time constraints the parties confront in light of the scheduled elections in November, 2016,” it explains. Accordingly, “if, on or before July 20, 2016, the Court of Appeals has neither issued an opinion on the merits of the case nor issued an order vacating or modifying the current stay order, an aggrieved party may seek interim relief from this Court by filing an appropriate application.” In essence, the justices gave the en banc Fifth Circuit a deadline to decide this case, or else the Supreme Court may step in itself.
That’s an important deadline for two reasons. During the 2014 election cycle, the justices appeared to be very reluctant to make changes to a state’s election laws as the date of an election drew nigh. Thus, if the Fifth Circuit waits too long to decide this case, Texas’ law may remain in effect during the November 2016 election by default.
Additionally, there is at least some reason to be concerned that some members of the Fifth Circuit could intentionally delay resolution of Veasey in order to take advantage of the Supreme Court’s cautiousness around election time. Last year, a Fifth Circuit panel dominated by two especially conservative judges took an unusually long time to decide a challenge to President Obama’s immigration programs, leading the third member of that panel to complain about the delays. “I have a firm and definite conviction that a mistake has been made,” Judge Carolyn King wrote in a dissenting opinion. “That mistake has been exacerbated by the extended delay that has occurred in deciding this ‘expedited’ appeal. There is no justification for that delay.”
So it now appears likely that the Fifth Circuit will receive some adult supervision before the November election. The open question is whether that supervision will matter. The fact that one conservative member of that court found aspects of the Texas law objectionable is a sign that a conservative justice might be willing to cross over in this case. But those justices haven’t been particularly eager to do so in past voter ID cases.