Fifth Circuit's Voter ID Decision Shows the Attitude of Bush's Judges

Last week, a federal district court judge concluded that Texas's strict voter ID law (SB 14) violated both the Constitution and the Voting Rights Act. Judge Nelva Ramos concluded that the law was passed with illegitimate motives:

This Court concludes that the evidence in the record demonstrates that proponents of SB 14 within the 82nd Texas Legislature were motivated, at the very least in part, because of and not merely in spite of the voter ID law's detrimental effects on the African-American and Hispanic electorate. As such, SB 14 violates the VRA as well as the 14th and 15th Amendments to the Unites States Constitution.

Nevertheless, yesterday, a three-judge panel of the Fifth Circuit ruled that Texas can hold this fall's elections under the voter ID law anyway. Although the ruling was unanimous, the two Bush-43 judges on the panel (Edith Brown Clement and Catherina Haynes) took a very different approach to the case than did the Obama nominee.

Judge Gregg Costa, the court's newest member, wrote in his short concurrence:

The district court issued a thorough order finding that the Texas voter ID law is discriminatory. We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory. … I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court's recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis. … On that limited basis, I agree a stay should issue.

Those recent Supreme Court actions Judge Costa cites are hard to interpret, since they came with no explanation. But they also didn't involve a judicial finding of intentional racial discrimination in violation of the Constitution, which we have in this case.

While Costa's concurrence was only a paragraph, the Bush judges' opinion went on for many pages. Judge Clement (joined by Judge Haynes) wrote that Texas will be irreparably harmed if the stay is not issued: "When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws."

But what is the public interest in enforcing a law that a district judge concluded was passed with the intent to make it harder for African Americans and Latinos to vote? What interest does Texas have in enforcing a law that violates the Constitution?

The two Bush-43 judges also stated critically that Judge Ramos didn't give a reason for applying the injunction so close to the beginning of an election, even though Texas warned it would disrupt the election process.

Perhaps "disrupting the election process" is warranted when that process has been intentionally designed to disenfranchise targeted groups.

While all three judges agreed to stay the district court's ruling and allow Texas to enforce its voter ID law, the different approach taken by Bush and Obama judges is notable.

PFAW Foundation

Texas Judge Could Teach the Roberts Court a Thing or Two

Late yesterday, federal district Judge Nelva Gonzales Ramos struck down Texas' restrictive voter ID law. Judge Ramos found that it creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect on African Americans and Latinos, and is an unconstitutional poll tax. Most importantly, a careful analysis of the record led her to conclude that the law was passed with an unconstitutional discriminatory purpose.

This is a terrific development for those who care about the right to vote. And the fact that the discrimination was intentional triggers Section 3 of the Voting Rights Act, which permits Judge Ramos to subject Texas to the same type of preclearance conditions it was subject to under Section 5, before the notorious Shelby County decision. She is expected to decide whether to pursue that course of action within the next few days.

This is a textbook case of why courts matter, and why it matters who sits on those courts. Texas citizens' right to vote was being threatened by their own state government, in clear violation of the law. The federal courts have now stepped in to make sure the promises of the U.S. Constitution are kept.

The opening of Judge Ramos' opinion makes clear that she recognizes the preeminent importance of the right to vote:

The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a "government of the people, by the people, [and] for the people." The Supreme Court of the United States, placing the power of the right to vote in context, explained [in 1964]: "Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." [footnotes removed]

She could teach a thing or two to the five conservatives on the Roberts Court, whose Shelby County ruling gave the green light to politicians in Texas and elsewhere eagerly seeking to make it harder for certain people to vote.

PFAW Foundation

A New Reason to Confirm Texas Judicial Nominees This Fall

The Administrative Office of U.S. Courts this morning formally reclassified a longstanding judicial vacancy in southern Texas as a judicial emergency. That means the caseload is too high for the work to get done in a fair and efficient manner, so Americans seeking to vindicate their rights can't be assured of getting their day in court. But this vacancy is hardly alone: Of the Lone Star State's 11 current vacancies, eight of them are judicial emergencies, and eight of them have no nominees. Those numbers are too high.

Fortunately, nominees for three of the state's emergencies are having hearings before the Judiciary Committee tomorrow: Amos Mazzant, Trey Schroeder, and Robert Pitman. They have the support of the White House that nominated them and the two Republican senators who recommended them. In a historic first, Pitman would be Texas's first openly gay federal judge. He would also fill a seat that has been vacant since 2008, the nation's second oldest vacancy.

If tomorrow's hearing doesn't uncover any problems, then Texans need for all three nominees to take their places in the courtroom as soon as possible. If the Judiciary Committee can vote them out before leaving town later this month, the Senate should be able to hold a confirmation vote before the election. Otherwise, senators will need to come back to approve them in a lame duck session. There is no excuse to leave any courtrooms empty until next year if they can be filled this fall – especially in a state with as many judicial emergencies as Texas.

PFAW

The Right Wing's Immigration Hysteria: Round-Up

Here’s a round-up of last week’s Right Wing immigration hysteria:

PFAW

Judicial Vacancies Wreaking Havoc In U.S. Courts

Judicial vacancies slow down courts’ work, drive up litigation costs, cause evidence to go stale, make it harder to settle civil cases, and even pressure defendants into pleading guilty, according to a report released this week by the Brennan Center. The report cites example after example of how not having enough judges erodes our nation’s system of justice. Everyone counts on having their day in court, a fundamentally American principle that is threatened by persistent vacancies. The report quotes Chief Judge William Skretny of New York’s Western District:

We don’t neglect the Seventh Amendment, the right to a civil trial. But we tell people, if this is what you want to do, it will take time to get there.

Heavier caseloads and backlog created by vacancies also take a toll on judges, reducing the amount of time they have to spend on each case.

Chief Judge [Leonard] Davis in the Eastern District of Texas described the situation in his district as “simple math.” With more cases “you have less time to give to [an individual] case,” he explained. “It affects the quality of justice that’s being dispensed and the quantity of work you can complete,” he added.

[Judge Davis] also highlighted the impact of the Sherman vacancy on the timing of sentencing. “It’s a hardship for the litigants,” he explained. “Due to the backlog and [the] vacancy [in Sherman], we have a very high population of criminal defendants, about 200, sitting in county jails, having pled guilty and waiting for sentences. They can’t get their cases processed.” He noted that inmates are typically housed in a county jail because there are no federal facilities available, which is more costly for the government and leaves inmates with fewer work and educational opportunities. “That’s not fair to [the inmates] and adds a great deal of unnecessary cost by having to house them for so long in county jail holding facilities,” he said.

As the report makes clear, vacancies have real impacts for all citizens. This is why PFAW supports the speedy confirmation of qualified judicial nominees to federal courts. Filling judicial vacancies with quality judges will reduce backlogs and costs while allowing the judicial system to better serve all Americans. Maintaining the third branch is one of the most important constitutional functions that the Senate performs.

PFAW

The Right Wing's Inflammatory Reaction to the Border Crisis

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As we’re dealing with the refugee crisis on the southern border, right-wing elected officials have amped up their inappropriate, inflammatory rhetoric to dehumanize immigrants and attack immigration reform:

  • Sen. Ted Cruz announced last week that his new “top priority”  in Washington is to end President Obama’s deferred action program for DREAMers and deport undocumented immigrants who came to the U.S. as children. While trying to soften his appearance by bringing teddy bears and soccer balls to children at the southern border, he proclaimed that “as long as that promise of amnesty is there, more and more children will come... We need to eliminate the promise of amnesty.”
  • Rep. Louie Gohmert claims children being held are a problem because “we don’t even know what all diseases they have” and added that our healthcare system “can’t withstand the influx,” which, he believes was orchestrated by President Obama to recruit millions of people to cast fraudulent ballots for Democrats.
  • Sen. David Vitter has “had it with undocumented immigrants,” and tweeted on Friday that “enough is enough.” To deal with the crisis, he introduced a bill that would “require mandatory detention for anyone” that is in the U.S. illegally, in order to get “illegal aliens on the next plane home.” (Mother Jones calculated that this effort would require more than 64,000 planes to actually work.)
  • Rep. Tom Tancredo shared a similar plan when he said that President Obama should “sign an executive order saying all these people ought to be returned. Put them on buses or planes, send them back to the countries from which they came and have the governments there take care of it.”
  • Sheriff Joe Arpaio of Maricopa County, Arizona, claimed that these unaccompanied minors from Central America are probably “gangbangers” and questioned why they are being sent to this county in the first place.

Of course, elected extremists aren’t the only ones making outrageous statements:

  • The Minuteman Project’s Jim Gilchrist said this crisis is “part of a concerted effort to transfer populations of Central America and Mexico into the United States using minor children, illegal immigrants under the age of 18, as human shields… to detour our ability to enforce our immigration laws.”
  • The American Family Association’s Sandy Rios suggested the child refugees should be quarantined like lepers used to be, harking back to “biblical times” when the “lepers were separated” because it was “understood that leprosy was so contagious.” Rios' fretted that these children are transported in the “same planes that you and I fly in… How do we know about lice and disease before they get on public transportation?”
  • Jody Hice, running to replace Georgia Rep. Paul Broun in the U.S. House, suggested that people take up arms in response to “a government that refuses to secure our borders” because “that is the reason we have a Second Amendment.”

The Right Wing's inflammatory rhetoric distorts the reality of the crisis, causing more conflict and damage.

PFAW

PFAWF Celebrates Confirmation of Julián Castro as U.S. HUD Secretary

Andrew Gillum is the Director of Youth Leadership Programs at  People For the American Way Foundation.

Julián Castro, current mayor of San Antonio, was just confirmed in the Senate by a 71-26 vote to lead the Housing and Urban Development Department. Castro, one of the earliest members of People For the American Way Foundation’s Young Elected Officials Network, is the first to become a Cabinet member.

I remember meeting Julián at our very first YEO convening in 2006, and being impressed with his passion to serve and better his community in Texas. We are incredibly proud of Julián and excited to see what he’ll accomplish in this new position. His proven leadership in fostering urban revitalization and economic growth make him a natural fit for this position, where he will be able to combat homelessness and help secure access to affordable, quality housing for more Americans.

Julián’s confirmation yesterday demonstrates how supporting young elected officials in our movement can reap tremendous results. I often say that YEOs are the state and local leaders of today as well as the national leaders of tomorrow. While Julián will be the first (former) YEO member to serve in a cabinet level post, I am sure he won’t be the last.

PFAW Foundation

Voting Rights Advocates Rack Up More Wins

Earlier this month, PFAW reported on what has gone right for voting rights at the state level in 2014. While there is much more work to be done to enact needed reforms and to step up and counter threats when the right to vote is under attack, states like Florida, Georgia, and North Carolina have shown that we can win.

Now we've uncovered even more evidence of why we can and should keep fighting the challenges that lay before us.

Voters themselves will get to decide what voter empowerment means in Illinois. House Speaker Michael Madigan's constitutional amendment providing "that no person shall be denied the right to register to vote or to cast a ballot in an election based on race, color, ethnicity, status as a member of a language minority, sex, sexual orientation, or income" passed both chambers and will be on the November ballot. A similar effort is afoot in Ohio.

Native American voters in Montana have seen two encouraging developments. In Jackson v. Wolf Point School District, an agreement was reached that will provide for five-single member school board districts in addition to one at-large representative, as opposed to the existing multimember districts that heavily favored the area's white population. Wandering Medicine v. McCullough, which challenges the availability of late registration and early voting for residents of the Crow, North Cheyenne, and Fort Belknap Reservations, will proceed following a failed motion to dismiss the case.

In Washoe County, Nevada, home to Reno and the state's second most populated county, voters have come to expect 14 consecutive early voting days. This year, though, county commissioners planned to eliminate the two optional Sundays that fall within that period. The American Civil Liberties Union and other allies organized quickly, sending a letter to Chairman David Humke and providing testimony at a commission meeting. Thankfully at that same meeting Chairman Humke announced that Sunday early voting was back on and warrants further study.

Tod Story, ACLU of Nevada Executive Director, said:

Early voting allows more people to participate in our democracy, and weekend voting is necessary for many hardworking Nevadans. Weekends are especially important days for voting drives, including for communities of faith

US District Judge Nelva Ramos told Texas legislators, much like US Magistrate Judge Joi Elizabeth Peake did in North Carolina, that their emails must be disclosed – albeit confidentially – in the ongoing Voting Rights Act challenge to the 2011 Texas voter ID law.

Huffington Post:

The United States argued that the emails could be the only existing candid evidence about the purpose of the legislation because Texas Republicans coordinated their talking points on the bill and refused to publicly engage with the concerns of minority legislators. If any of the emails reveal discriminatory intent, the U.S. will still have to argue to get them admitted as evidence during the trial phase of the lawsuit.

Finally, Utah is taking Election Day Registration for a test drive. Governor Gary Herbert has signed HB 156, which sets up an opt-in pilot program for counties and municipalities. The state will keep an eye on how they do and report back to the legislature for possible further action.

We can win, and let's not forget that.

Check out PFAW’s website for more voting rights updates.

PFAW

Texas Republican Highlights How GOP Should Face the Changing Electorate

In the famously red state of Texas, Republican state legislator Jason Villalba of Dallas last week offered a frank assessment of the crossroads at which his party finds itself.

[T]he time has come closer when we will see the sleeping giant [of the Hispanic electorate] awaken and it will make a tremendous difference in our ability to win elections if we cannot win the votes of our fellow Hispanics.

Even as the country rapidly becomes more diverse, the GOP has clung to its strategy of alienating Latinos, African Americans, women, and LGBT people with an endless barrage of outrageous statements and discriminatory policies.

As some Republican leaders, like Villalba in Texas, are noting, this tactic isn’t good for the GOP. Demographic changes, though small on the surface, could have major political impacts, particularly in swing states, that will make it harder and harder for Republicans to win important elections.

In Texas alone, analysts are projecting a two percent increase in the Latino electorate for the 2016 election cycle compared to 2012. That kind of increase is still relatively minor in Texas, but a similar shift could make a crucial difference in swing states like Florida, Colorado, and Nevada. As GOP pollster Whit Ayres notes

Changing the demographics of the state by two percentage points puts a finger on the scale in each of the swing states for the party that’s doing well among Hispanics. This underscores the critical importance for Republican candidates to do better among nonwhite Americans, particularly among Hispanics, if Republicans ever hope to elect another president.

Some far right activists argue that the GOP can win by increasing its share of the white vote, but the numbers don’t bear that out. As Resurgent Republic noted, “every month for the next two decades, 50,000 Hispanics will turn 18.” Without appealing to those voters, Republicans face a steep climb to victory in any national race—and a quick journey to minority party status.

No wonder the party is so fond of strict voter ID laws, restricted early voting opportunities, and proof of citizenship laws to deter certain people from coming out to vote.

PFAW

West Texas Judges Talk About the Need for More Judges

In discussing the severe conditions of the federal courts in Texas, we have noted that the Western District is one of the areas in particularly desperate need of new judges. The nonpartisan Judicial Conference of the United States – the principal policymaking body concerned with the administration of the federal courts – asked Congress last year to create four new judgeships in the Western District, as well as a fifth, temporary judgeship, bringing the total up from 13 to 18. So even if there were no vacancies in the Western District, you'd still need to increase the number of judges by 40% to make sure the courts could work effectively.

Unfortunately, the Western District has the dubious distinction of having the second oldest district court vacancy in the United States, going all the way back to 2008, when Judge Royal Ferguson of San Antonio took senior status and moved to another district. At a 2011 Brookings Institute event, Judge Ferguson discussed the importance of creating new judgeships and filling vacancies in existing ones:

We need more federal judges, we need more judgeships, and pending vacancies create an enormous difficulty. We need to do our civil cases. The business of America is business. And when businesses can't figure out if their patents are good, if their contracts are good, they can't figure out what to do about their tax situation, and so forth and so on, things bog down. And businesses need a strong rule of law and prompt rulings by judges. And they can't get it on the border.

He also described how the enormous caseload harms the deliberative process we expect from judges:

I would sometimes look out in the evening at the mass of people assembled in my courtroom and it would take me back to the days when I was a very young lawyer and my firm was assigning me to handle clients in night traffic court. And I felt like I was in night traffic court. The problem, of course, in night traffic court if my client got fined it was going to be a couple of hundred bucks at the most, and the problem that I had with the defendants before me, they were looking at years -- potentially years and years in a federal prison. And I was able to give them about as much attention as I could see those traffic judges giving their -- the defendants before them attention when the fines were about $100 or $200. It was not a good feeling and federal judges all across the border continue to deal with this problem of not having the time it takes to really consider what they're doing, especially in sentencing.

Back in September of 2012, Hawaii Judge David Ezra explained why he was moving to West Texas to help the beleaguered district, even though that would quadruple his caseload:

This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire.

In March of last year, Chief Judge Fred Biery of the Western District discussed what it was like not having enough judges to handle the caseload:

It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle.

The Western District's online calendar has long had entries in the Del Rio Division for "Visiting Judge 1" and "Visiting Judge 2." Later this month, Kentucky's Danny Reeves will be the one lending the Del Rio court a hand.

Unfortunately, things are bound to get worse in the Western District if something isn't done soon: Judge Robert Junell announced earlier this year that he plans to take senior status next February, giving more than a year's notice in the hopes that his replacement will be identified, recommended, nominated, and confirmed in time. In addition, it has been reported that President Obama is considering elevating Judge Xavier Rodriguez of San Antonio to the Fifth Circuit Court of Appeals, which would create yet another vacancy in the Western District.

Last July, Senators John Cornyn and Ted Cruz tasked their Federal Judicial Evaluation Committee to recommend to them potential nominees, including one for San Antonio – the vacancy that has been open since 2008. But with a second Western District vacancy known to be opening next year and a third one possible as well, let us hope that the senators work with the White House to fill every vacancy as soon as possible.

Surely America can do better than the rickety judicial system that Texas has been experiencing.

PFAW