RNLA member Prof. Brad Smith wrote about the first judicial opinion issued by Judge James Ho, one of President Trump's nominees to the Fifth Circuit:
“The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders.” . . .
His first opinion, released in April, was a dissent in a case asking whether an Austin, Texas, $350 limit on political contributions was constitutional. . . . He began with a detailed analysis as to why Austin’s $350 limit on campaign contributions should be struck down as unconstitutionally low under Supreme Court precedent. Straightforward enough. Ho went further, questioning the right of government to limit political participation at all. “As citizens,” he wrote, “we enjoy the fundamental right to express our opinions on who does or does not belong in elected office.”
Prof. Smith describes how Judge Ho applied the anti-corruption standard that is the only constitutionally permissible rationale for contribution limits, according to the Supreme Court, in a common-sense, real-world fashion, instead of the in the theoretical, and therefore far too expansive, manner in which it is usually applied:
Ho pointed out that contribution limits prohibit the exercise of protected First Amendment rights to support candidates and voice political views even when there is no corruption whatsoever. Adding a badly needed dose of realism, Ho wrote, “Countless Americans contribute for no other reason than to support candidates who share their beliefs and interests … without any inkling of a quid pro quo agreement. Indeed, many Americans contribute without ever even communicating with the candidate. … A donor might simply be inspired by the candidate’s prior record of public service, proposed future action, or a particular speech or debate performance. Such contributions are far from corrupt.” . . .
What makes Ho’s opinion so refreshing is that it emphasizes actual corruption and the motives of donors, bringing campaign finance law back to the real world. Too often courts have sanctioned vague restrictions on political speech to meet nebulous goals and strained hypotheticals. The First Amendment is not a relic of an era gone by, and it’s rewarding to see a judge who thinks the rights enumerated in the Constitution are still meaningful.
Judge Ho's opinion respects the text of the Constitution, and his reliance on the Constitution protects the enumerated rights of individuals against over-regulation by the government. This is the kind of text-based legal reasoning starting to be issued around the country by judges nominated by President Trump, who are beginning to restore the rule of law to the judiciary.
Last Friday, the Fifth Circuit upheld Texas' voter ID law, which it had amended in 2017 in response to an earlier en banc Fifth Circuit decision. Judge Edith Jones wrote for the three-judge panel in Veasey v. Abbott, noting the irony that the plaintiffs were challenging, and the district court found invalid, the very interim remedy that both the plaintiffs and the district court had agreed to in 2016 (internal citations omitted):
In the face of these obvious improvements over SB 14, Plaintiffs neither
allude to nor adduce any proof that SB 5 has a discriminatory effect on indigent
minority voters. To a large extent, SB 5 replicates the terms to which both
parties agreed as an interim measure to cure SB 14’s Section 2 deficiencies in
advance of the national 2016 election. Although the interim remedy was
without prejudice to any party’s asserting its legal rights at a later date, one
must wonder why the features the Plaintiffs agreed to only a year ago yielded
an insufficient remedy when enacted into law. No explanation is forthcoming
in their briefs. . . .
That Plaintiffs’ factual critique boils down to speculation demonstrates
the prematurity of the court’s decision to invalidate SB 5 in 2017, well before
the law took effect in 2018. Nothing we conclude today disposes of any
potential challenges to SB 5 in the future. Plaintiffs
may file a new lawsuit, and bear the burden of proof, if the promise of the law
to remedy disparate impact on indigent minority voters is not fulfilled. They
did not challenge SB 14, for instance, for several years after its effective date.
As a remedy for the deficiencies found by this court in Veasey II, however, there
is no evidentiary or legal basis for rejecting SB 5, and the district court was
bound not to take the drastic step of enjoining it. Further, because SB 5
constitutes an effective remedy for the only deficiencies testified to in SB 14,
and it essentially mirrors an agreed interim order for the same purpose, the
State has acted promptly following this court’s mandate, and there is no
equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c) [of the Voting Rights Act].
Jason Snead and Hans von Spakovsky of The Heritage Foundation point out that the decision, while important for election integrity reasons, also has major implications for the rule of law:
It was on this flimsy legal basis that [District Court Judge Nelva Gonzales] Ramos supported her decision to jettison the entire Texas voter-ID law. This judgment was made despite the fact that “all of the evidence supports that SB 5 was designed to remedy every defect” in the earlier law and “to supply indigent voter protections” recommended by the Fifth Circuit. . . .
It’d hard to disagree with Judge Jones’s reasoning here. Texas made, by all rights, a good-faith attempt to rectify problems with its election laws while preserving an essential, commonsense tool for fighting fraudulent votes. The solution it settled on was largely based on Ramos’s own 2016 remedy, and it offers a broader set of alternatives “to producing compliant photo voter ID” than the Indiana statute the Supreme Court upheld as constitutional in 2008. Its “reasonable impediment” exemption is also virtually identical to South Carolina’s voter-ID law. South Carolina’s law was upheld by a three-judge federal court in the District of Columbia in 2012 and has caused no problems.
Judge Ramos may have a personal bias against voter-ID laws, but as a federal judge she is not entitled to substitute her own policy preferences for those of elected lawmakers. As Judge Jones reminded us, “Courts must defer to [the government’s proposed remedy] unless the newly enacted plan is itself unconstitutional or violates federal law.”
Neither condition applies here, and Jones rightly reversed Ramos’s decision. Judge Jones has delivered a victory not only for the integrity of the ballot box, but for the rule of law itself.
While the plaintiffs will likely appeal to the en banc Fifth Circuit and the Supreme Court, the efforts of Chairman Chuck Grassley and Leader Mitch McConnell to confirm President Trump's excellent judicial nominees have changed the composition of both of those courts since this case was last on appeal in 2016 and 2017.
Paul Baier, appellate lawyer and law professor at Louisiana State University, penned a glowing endorsement of his former courtroom adversary and friend Kyle Duncan recently in The Hill. Mr. Duncan was nominated by President Trump to the 5th Circuit Court of Appeals back on September 28, 2017 and his nomination is pending a full Senate confirmation vote.
Kyle Duncan is a magnificent nominee for the Fifth Circuit who ought to be swiftly confirmed. I have known him as a colleague and scholar of constitutional law at Louisiana State University Law School, and clashed with him as an adversary in the Louisiana Supreme Court's same-sex marriage case that followed Obergefell v. Hodges.
Mr. Duncan represented the state and its ban, while Mr. Baier represented the couple at the center of this rematch. Mr. Baier remarked:
Having battled on the front lines in the same-sex marriage litigation, I can attest to the passionate disagreement and often contentious nature of the issue…Through it all, however, I always appreciated and respected Kyle's advocacy for his client and his respect for the humanity of the same-sex couples who would be most affected by the case. While I disagreed with many of his arguments, often emphatically, I never found a trace of bias, bigotry, or any disrespect towards the same-sex individuals in the case.
Both of us strove mightily as adversaries. But we continue to eat and drink as friends.
Kyle knows well the difference between the advocate's role for his client (in the same-sex marriage case, the State of Louisiana) and what he would be called upon to decide as a judge on the Fifth Circuit. I maintain this view of Kyle even after having faced off against him in the highly charged atmosphere of same-sex marriage litigation. His ability to act as a judge and not advocate will surely carry over to other questions of public importance facing the Fifth Circuit.
Mr. Baier concluded clearly explaining his support and respect for Kyle Duncan:
Kyle Duncan is as sharp a lawyer as any of the leading Supreme Court advocates with whom I am familiar, and I have had the good fortune of observing the work of the Fifth Circuit and the Supreme Court for over 40 years…In my judgment, Kyle Duncan, unquestionably, will make a surpassing Fifth Circuit judge and jurist. His confirmation should be supported by all who value judges committed to fairness and scrupulous application of the law. It's time for Kyle Duncan to be confirmed.
With Congress in recess for the next two weeks, the earliest the Senate will likely take up additional confirmation hearings and votes will be the week of April 9th.
We will keep you posted on these judicial confirmations, hearings, votes, and Democrats' attempts to obstruct President Trump's excellent nominees.
Yesterday, the en banc 5th Circuit ruled in the challenge to Texas' voter ID law. While the left is claiming a victory, widely saying that the court found the law unconstitutional, the opinion is actually much more nuanced and leaves the primary requirements of the law in effect.
Texas' voter ID law remains in effect for every voter that has an identification that meets the law's requirements. The district court must determine how those who lack an acceptable ID to be able to vote in November, and it has already issued an order pertaining to that requirement.
Largely ignored in the liberal rejoicing over the decision is that the 5th Circuit threw out the district court's finding that the voter ID law was a poll tax and seriously questioned its finding that the law was enacted with discriminatory intent.
In dissent, Judge Edith Jones strongly criticized the court's decision to leave the question of discriminatory intent open:
Requiring a voter to verify her identity with a photo ID at
the polling place is a reasonable requirement widely supported by Texans of
all races and members of the public belonging to both political parties. The
majority, however, today holds not only that Texas’s photo voter ID law, SB 14,
violates the “results test” declared in Section 2 of the Voting Rights Act, but
concludes that there is “more than a scintilla” of evidence to support a finding
that the Texas Legislature passed the photo voter ID law with a racially
discriminatory intent. By keeping this latter claim alive, the majority fans the
flames of perniciously irresponsible racial name-calling.
No one doubts our unwavering duty to enforce antidiscrimination law.
But in this media-driven and hyperbolic era, the discharge of that duty
requires the courage to distinguish between invidious motivation and shadows.
The ill-conceived, misguided, and unsupported majority opinion shuns
discernment. Because of definitive Supreme Court authority, no comparable
federal court precedent in over forty years has found a state legislative act
motivated by purposeful racial discrimination. Even more telling, the multithousand
page record yields not a trace, much less a legitimate inference, of
racial bias by the Texas Legislature. Indeed, why would a racially biased
legislature have provided for a cost-free election ID card to assist poor
registered voters—of all races—who might not have drivers’ licenses? Yet the
majority emulates the clever capacity of Area 51 alien enthusiasts who, lacking
any real evidence, espied a vast but clandestine government conspiracy to
conceal the “truth.”
The major take-away from this opinion is that voter ID laws are valid. While the 5th Circuit judges disagree over whether they are discriminatory in purpose or effect, the requirement for a person in possession of an ID to present it prior to voting was yet again upheld.
