(AP/J. Scott Applewhite)

How I got a SCOTUS ruling changed: My unusual Ruth Bader Ginsburg story

With the Texas voter ID dissent now fixed, a few more veterans may now be able to vote. Here's what happened


Brad Friedman
October 27, 2014 2:58PM (UTC)
This post originally appeared on The BRAD BLOG.

Well, it is still very likely that some 600,000 legally registered voters in Texas will find themselves unable to vote at the polls this year in the Lone Star State, thanks to the U.S. Supreme Court's horrible recent order leaving the state GOP's photo ID voting law in place for now, pending the state's appeal to the ruling of a lower court earlier this month that found the law to be intentionally discriminatory and an "unconstitutional poll tax."

But at least the record on that law for now, as described in Justice Ruth Bader Ginsburg's sharp pre-dawn dissent issued last Saturday morning (joined by Justices Sotomayor and Kagan), is now accurately reflected at the U.S. Supreme Court, thanks, in part, to the BRAD BLOG's questions about what appeared to be an error in her opinion.

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Ginsburg had originally stated in her otherwise on-point dissent (which the justice literally stayed up all night working on, before releasing it at 5 a.m. ET that Saturday!) that Texas will not "accept photo ID cards issued by the U. S. Department of Veterans' Affairs" for voting this year.

The "good" news is, that assertion does not appear to be true, and Ginsburg, following a chain of events spurred by our background inquiry, has now corrected the record in her official opinion published by the court.

Here's what happened. Even though Texas has required every voter to present ID at the polling place since 2003, state Republicans have been trying for years to make it more difficult (for certain people, such as minorities, students, the poor and elderly) to vote by radically decreasing the type of IDs that are considered acceptable for voting. For example, the previous law allowed birth certificates "or other document(s) confirming birth that is admissible in a court of law and establishes the person's identity" to be used in order to vote. The previous law also allowed, for voting identification purposes, "official mail addressed to the person by name from a governmental entity; a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter."

The new law, SB 14, does away with all of those, even though the state was only able to cite, out of some 20 million votes cast in Texas over the past 10 years since the old law was enacted, a total of two cases of in-person polling place voter impersonation cases (which is the only type of voter fraud this law could possibly deter) during the full trial on the merits of the law earlier this year.

After a year of discovery and a nine-day trial, the law was struck down after being found to be unconstitutional and purposefully discriminatory against minority voters who disproportionately lack the very specific and now limited type of photo ID required to vote at the polling place under the new GOP law. It was also ruled to amount to an unconstitutional poll tax, since even the so-called free IDs issued for voting purposes by the state would require the presentation of documents, such as a birth certificate, that cost money to purchase.

Texas appealed the ruling, seeking a stay of the U.S. District Court's injunction before this year's midterm election. The 5th Circuit Court of Appeal issued that stay. The appellate court did not contest the lower court's findings -- in fact, they conceded that "The individual voter plaintiffs may be harmed by the issuance of this stay" -- but, with early voting set to begin last Monday (Oct. 20), they cited a per se rule by the U.S. Supreme Court barring last-minute changes to voting rules.

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Plaintiffs then filed an Emergency Application with SCOTUS to vacate the stay, but the Supremes denied the petition without comment. As Ginsburg suggested in her dissent, their reasons were due to their precedent of disallowing last-minute changes to voting rules, even though, in this case, failing to change the rules would very likely result in the disenfranchisement of tens of thousands of legally registered voters.

SCOTUS' order on the Texas law was issued on Saturday morning, along with Ginsburg's scathing six-page dissent, which, citing the court's refusal to allow a very similar GOP voting restriction in Wisconsin just one week earlier, included the following passage:

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Texas will not accept several forms of photo ID permitted under the Wisconsin law the Court considered last week. For example, Wisconsin's law permits a photo ID from an in-state four-year college and one from a federally recognized Indian tribe. Texas, under Senate Bill 14, accepts neither. Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans' Affairs.

On Monday, citing Ginsburg's dissent on Twitter, we mentioned that while concealed carry weapons permits are now allowable for voting in Texas, neither state-issued student photo IDs nor U.S. veterans IDs are acceptable under SB 14.

We were challenged on that latter point by a Twitter supporter of Greg Abbott, who is defending the GOP law as state attorney general in Texas, even while likely benefiting from it in his run for governor against his Democratic challenger Wendy Davis.

The Twitter user, @Photog_Momma4, cited a document [PDF] posted by the Dallas County Elections Department showing Veterans Affairs ID cards to be one of the photo IDs now allowed for in-person voting in Texas.

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Dallas County also offered another document [PDF] on its website, from the Texas secretary of state's office, showing VA cards to be acceptable for voting:

 

 

The Texas Legislature's copy of the final version of SB 14 [PDF] didn't necessarily clear things up. It says that "a United States military identification card that contains the person's photograph that has not expired or that expired no earlier than 60 days before the date of presentation" is allowable for voting, though the statute doesn't specifically note that a Veterans Affairs ID qualifies as "military identification card." The law also removed a passage from the previous Texas voter ID law that allowed the list of IDs to include "any other form of identification prescribed by the secretary of state."

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Making matters murkier still, if VA cards don't include expiration dates on them, as the secretary of state notes, it might be difficult for poll workers to determine what would qualify them to be "expired" or not.

Furthermore, in the plaintiff's emergency petition to SCOTUS [PDF], they included a declaration from the Dallas County election administrator, asserting that it would be easier for poll workers, not harder, to enforce the previous voter ID law for this election.

That declaration included this clear-as-mud assertion (p. 191):

7. Since SB 14 went into effect last year, we have received inconsistent and confusing information about the photo law and its implementation. For example, just last week, a supervisor in our elections office noticed that the Secretary of State's office sent around training materials that incorrectly suggested that certain forms of veterans' identification lacked expiration dates. Because he is a veteran, he knows that these veterans' IDs actually have expiration dates. After he contacted the Secretary of State's office about this, the SOS office promised to look into the matter. However, the training materials sent out statewide by the SOS are erroneous on this point.

As we looked further into this entire fine mess very late on Monday night, we sent an inquiry to Loyola University's Justin Levitt and University of California-Irvine's Rick Hasen, both election law experts, to see if they had any explanation or additional details on the apparent contradiction between Ginsburg's claim that Veterans Affairs IDs were not acceptable for voting under SB 14 in Texas, and the materials from the Texas secretary of state seemingly to the contrary.

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Levitt, who has testified as an expert before the U.S. Senate in regard to these types of completely unnecessary and disenfranchising photo ID laws, told us that, while he wasn't certain, he thought Ginsburg might have been wrong on that one point. He didn't know where her info on it might have been coming from, but thought, perhaps, that she was "referring to some incorrect info apparently circulated at one point by the Secretary of State." (See the paragraph from the Dallas County Election Administrator's declaration above.)

Hasen, whose exhaustively comprehensive Election Law Blog is frequently cited by the mainstream media, replied to the email conversation Tuesday morning to say: "I will post the question on the blog and see if someone has a better answer."

As promised, just minutes later, he posted the issue on his blog -- "A Small Error in Justice Ginsburg Texas Voter ID Dissent?" -- asking, "Can anyone from Texas clarify?"

By Tuesday afternoon, Hasen added this update to the item:

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Update: The Texas Secretary of State's office has responded via Twitter: "Veterans Affairs ID cards are an acceptable form of photo ID in TX. See slides 20 & 21 here: http://www.sos.state.tx....ptable-forms-of-ID.pdf\"This seems to confirm Justice Ginsburg made a small error in her decision. I expect to see that sentence deleted or altered.

The PDF file the Texas secretary of state linked to is an updated (4/25/2014) version of the 10/17/2013 PDF by the same name that we found on the Dallas County Election Division website, from which the VA photo ID graphic posted above was taken.

Whether the secretary of state is following the letter of the law in their pronouncement is still unclear. Nonetheless, unless challenged, their word is presumably final on this matter.

This morning, Hasen published this breaking item, citing a report from SCOTUSblog noting that Justice Ginsburg had corrected her error and reissued her dissent:

Yesterday I had a post noting an apparent small error in Justice Ginsburg's dissent in the Texas voter id case. The Justice said a Veterans ID card was not acceptable for voting, but it appears that it is acceptable.Today the Justice issued a revised dissent. SCOTUSBlog reports:

In ticking off her objections, Ginsburg wrote that Texas would not even accept "photo ID cards issued by the U.S. Department of Veterans' Affairs." On Wednesday, the Justice conceded that that comment was incorrect. That kind of ID card, she said through the Court's public information office, is "an acceptable form of photo identification for voting in Texas." So she simply deleted the sentence, and reissued the opinion. The Court also said that she had made "small stylistic changes" on two pages of her opinion, and that the corrected version could be read on the Court's website.

So, if you're keeping track, Ginsburg's initial, apparently incorrect dissent is here [PDF] and her newly revised dissent, with the error about Veterans IDs corrected, is now here [PDF].

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While errors in SCOTUS opinions are not all that unusualNPR's Nina Totenberg reports tonight that "Justice Ginsburg instructed the press office to announce that the opinion had 'contained an error' and that it was being corrected." That makes her, according to Totenberg, "the first justice to call the public's attention to her own mistake."

On the legal blog Concurring Opinions today, Ronald K.L. Collins notes the revision "after professor flags error," and asks:

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often. So when it happens, some of us think that credit should be given. Okay?

OK. Collins doesn't note the BRAD BLOG's role in all of this, which is fine, as he couldn't have known about it. Hasen referred only to us in his original post as "A few people," following the emailed conversation we instigated with Levitt and him.

So, for whatever it's worth, there's the full story of how the BRAD BLOG helped, at least in part, to change a U.S. Supreme Court opinion.

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In Wisconsin in 2012, after that state's Republicans first instituted their own draconian photo ID voting law (which was blocked this year by the Supreme Court after a lower court, as in Texas, found it to be unconstitutional after a full trial on the merits), veterans were turned away from the polling place when showing their V.A. ID in order to vote, despite being legally registered voters. Yes, the Wisconsin GOP photo ID law does bar the use of Veterans' IDs. Perhaps that's what led to Ginsburg's confusion.

A law this awful and confusing, which blatantly threatens the right to vote to otherwise perfectly legal Texas voters, should never have been allowed to take effect. Nonetheless, the clearer we can all be about what this restriction now does and doesn't do, the better for voters this year -- at least until all such laws, as Reagan-appointed conservative Judge Richard Posner suggests, are confirmed by SCOTUS to be unconstitutional next year.

So, while the change in Ginsburg's dissent today doesn't change the actual terrible, discriminatory and unconstitutional new photo ID voting restrictions in Texas for now, if it means that a few of our veterans -- for example, some of those who defended democracy by defeating the Nazis in WWII, but who no longer have a driver's license because they are too old to drive -- realize that they can vote after all this year in the Lone Star State by presenting their U.S. Veterans' Affairs ID card, it will most certainly have been worth all of the otherwise uncredited effort.


Brad Friedman

Investigative journalist and broadcaster Brad Friedman is the creator and publisher of The BRAD Blog. He has contributed to Mother Jones, The Guardian, Truthout, Huffington Post, The Trial Lawyer magazine and Editor & Publisher.

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