Texas Photo ID Case: Justice May Be Sure – But It Isn't Always Swift

[Image of Prettyman Federal Courthouse courtesy of wikipedia]

Courthouses often become the last battleground when election policy disputes boil over. One thing that occasionally gets overlooked, however, is that courts rarely move as quickly as the litigants would like.

We’ve already seen this in regard to the challenge to Wisconsin’s photo ID law, which is still pending review by the state Supreme Court despite the onrush of elections (regular and recall) in the Badger State.

Yesterday, we saw it again in an order by a federal district court in Washington, DC suggesting that Texas’ efforts to get approval for its photo ID law would likely not succeed in time for the November election.

In the Texas case, the delay appears to be related in part to disputes about whether the State will make certain data available for the court to analyze claims that the ID law discriminates against certain minority voters. From the court’s order:

Although Texas states that its paramount objective is obtaining preclearance and implementing [photo ID] in time for the November 2012 general election, Texas’ actions reflect a wholly different view. Rather than engaging in expedited discovery consistent with its stated goal, Texas has taken steps that can only be interpreted as having the aim of delaying Defendants’ ability to receive and analyze data and documents in a timely fashion.

Texas has repeatedly ignored or violated directives and orders of this Court that were designed to expedite discovery, and Texas has failed to produce in a timely manner key documents that Defendants need to prepare their defense. Most troubling is Texas’ conduct with respect to producing its key state databases, which are central to Defendants’ claim that S.B. 14 has a disparate and retrogressive impact on racial and/or language minority groups. 1 The record reflects that these databases are voluminous, complex, and essential to the preparation of the opinions of Defendants’ expert witnesses. Yet, according to Texas, the full production of such databases to the United States was only complete on May 4, 2012–35 days after they were initially due.

Not surprisingly, Texas isn’t happy – and is pointing the finger at DOJ for the delays. From a statement by the Attorney General’s office:

Although the DOJ was required to make its administrative decision within 60 days of July 25, the DOJ twice extended the deadline and did not make its preclearance decision until January. Then, the DOJ waited a full 60 days to respond to the State’s lawsuit–which asked the courts to approve Texas’ Voter ID law.

…

If the DOJ devoted even a fraction of the time they have spent complaining about their purported need for more information to instead reviewing the information they have already been provided, then this trial could unquestionably proceed without further delay. Instead, the very same DOJ that purports to revere and protect the Voting Rights Act is employing a litigation strategy that exacerbates the law’s constitutional problems by improperly denying Texas’ ability to implement a law that States like Kansas and Pennsylvania can implement without intrusion by the federal government–and that the U.S. Supreme Court already found to be constitutional in Indiana.

Whoever is at fault (and experiences teaches that both sides should really claim some responsibility) the Texas case is a vivid reminder that the finality inherent in a court order comes with considerable cost – not the least of which is time in reaching that finality.

In other words, not every election case is like Bush v. Gore – indeed, that case came to a conclusion relatively quickly because of a specific federal law requiring resolution of the identity of Florida’s electors by a date certain – a deadline that even the U.S. Supreme Court didn’t feel like they could extend.

Election administration runs on a fairly strict set of deadlines in order to function – registration deadlines, filing deadlines, Election Day, etc. When one or more parties asks the courts to get involved, however, that timeliness usually breaks down. The lesson of which the Texas case reminds us is that anyone who vows to “take it to court” must be willing to accept that the court might not take it up quickly – and when it does, may not provide an answer (even a desirable one) on the usual schedule to which election officials and participants have grown accustomed.