Notorious RBG Strikes Again

by Lauren Barbato

This is the year of the scathing Ruth Bader Ginsburg dissent. The woman, the myth, the jabot connoisseur, Ginsburg handed down yet another blistering dissent, this time criticizing Texas' controversial voter ID law. In her six-page dissent, Ginsburg attacks the voter ID law for being discriminatory, and dismisses the argument that it's too close to the 2014 election date to not enforce the provision. It's classic Notorious RBG — and we wouldn't expect anything less.

The U.S. Supreme Court upheld Texas' voter ID law early Saturday morning, dismissing an emergency request from the Department of Justice, which sought to block the law from being enforced during the upcoming midterm elections. The law — which could potentially bar 600,000 Texans, mostly African-Americans and Latinos, from voting in November — has been ping-ponging between federal courts. Last week, a federal judge struck down the law, calling it an "unconstitutional burden on the right to vote." However, a federal appeals court stayed the ruling this week, allowing the voter ID law to go forward come Election Day.

Six of the Supreme Court justices sided with the federal appeals court, with Ginsburg leading the forceful dissent. She was joined, like always, by Justices Elena Kagan and Sonia Sotomayor.

Here's how Ginsburg's most recent dissent went down...

She Threw Some Shade At The 5th Circuit Court

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Ginsburg opens her dissent with some pointed criticism of the 5th Circuit Court of Appeals, which decided to keep the voter ID law in place, or else it would lead to the "disruption of Texas' electoral process." The justice subtly calls out the federal appeals court for skipping over — perhaps purposefully — the facts of the case, which were laid out by the defendants with "reasoned, record-based judgment" in the district court. For Ginsburg, the federal appeals court's stay ruling should have been vacated simply because the 5th Circuit made a seriously incompetent ruling:

The fact-intensive nature of this case does justify the Court of Appeals’ stay order; to the contrary, the Fifth Circuit’s refusal to home in on the facts found by the district court is precisely why this Court should vacate the stay. Refusing to evaluate defendants’ likelihood of success on the merits and, instead, relying exclusively on the potential disruption of Texas’ electoral processes, the Fifth Circuit showed little respect for this Court’s established stay standards. ... Purcell held only that courts must take careful account of considerations specific to election cases ... not that election cases are exempt from traditional stay standards.

She Said Tough Luck, Texas

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For the 5th Circuit and the state of Texas, it would be too much trouble to not enforce the new voter ID law in this upcoming election, and instead revert to the voting guidelines used in past elections. Right?

Wrong, Ginsburg wrote, totally not buying the argument that enjoining the voter ID law will send poll workers into complete chaos. Texas poll workers, at this point, are most likely familiar with both the new voter ID law and the previous voting provisions used in Texas over the last 10 years. In either case, there's "little risk" of the so-called disruption, Ginsburg wrote:

In any event, there is little risk that the District Court’s injunction will in fact disrupt Texas’ electoral processes. Texas need only reinstate the voter identification procedures it employed for ten years (from 2003 to 2013) and in five federal general elections. To date, the new regime, Senate Bill 14, has been applied in only three low-participation elections—namely, two statewide primaries and one statewide constitutional referendum, in which voter turnout ranged from 1.48% to 9.98%. The November 2014 election would be the very first federal general election conducted under Senate Bill 14’s regime. In all likelihood, then, Texas’ poll workers are at least as familiar with Texas’ pre-Senate Bill 14 procedures as they are with the new law’s requirements.

She Calls A Spade A Spade

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In this case: The voting ID law is a racial injustice. Ginsburg doesn't hold back during the last half of her dissent, ripping into the "racially discriminatory purpose" of the Texas voter ID law. It would have a direct hit on the state's minority voters, Ginsburg wrote, noting that Texas has rejected all suggested amendments that could've made it easier for these voters to cast their ballots on Election Day:

The District Court emphasized the “virtually unchallenged” evidence that Senate Bill 14 “bear[s] more heavily on” minority voters. In light of the “seismic demographic shift” in Texas between 2000 and 2010, making Texas a “majority-minority state,” the District Court observed that the Texas Legislature and Governor had an evident incentive to “gain partisan advantage by suppressing” the “votes of African-Americans and Latinos.”

Ginsburg, though, isn't too surprised by Texas' racially charged motives. It's par for the course of the Lone Star State, the justice wrote:

[R]acial discrimination in elections in Texas is no mere historical artifact. To the contrary, Texas has been found in violation of the Voting Rights Act in every redistricting cycle from and after 1970 ... The District Court noted particularly plaintiffs’ evidence—largely unchallenged by Texas—regarding the State’s long history of official discrimination in voting, the statewide existence of racially polarized voting, the incidence of overtly racial political campaigns, the disproportionate lack of minority elected officials, and the failure of elected officials to respond to the concerns of minority voters.

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.