[EL] more on 7th Circuit
Rick Hasen
rhasen at law.uci.edu
Mon Oct 6 14:47:39 PDT 2014
A Quick Reaction to the 7th Circuit Wisconsin Voter ID Decision:
Horrendous <http://electionlawblog.org/?p=66413>
Posted onOctober 6, 2014 2:45 pm
<http://electionlawblog.org/?p=66413>byRick Hasen
<http://electionlawblog.org/?author=3>
I am crashing on a number of deadlines before travelling, so I have only
time for a brief reaction to the7th Circuit's opinion today
<http://pdfserver.amlaw.com/nlj/Seventh%20Circuit%20voter%20ID%20ruling.pdf>on
the merits rejecting the constitutional and Voting Rights Act section 2
challenges to Wisconsin's voter id law.
1. The timing here is not coincidental.Justice Kagan has
asked<http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/14a352.htm>the
state of Wisconsin to respond to an emergency motion filed by
challengers who are trying to get a reversal of the same 7th Circuit
panel's interim order to use voter id in this election. Regardless of
where you stand on the merits of the constitutional and voter id
problem,it is unconscionable <http://electionlawblog.org/?p=66198>to
roll out voter id without adequate time for everyone who wants to get id
to do so. The 7th Circuit violated the rule from the Supreme Court's
Purcell v. Gonzalez case for courts not to change election rules just
before the election. The state itself admits that up to 10 percent of
eligible voters may lack id for this election. Today's order seems timed
to give more ammunition to Wisconsin to fight its case on the merits.
2. As a matter of substance, this is vintage Judge Easterbrook: crisp
writing but heartless and dismissive. Judge Easterbrook picks out the
evidence from the record he likes, and dismisses the evidence he does
not like. The Ansolabehere and Persily study finding no relationship
between voter id laws and public confidence is dismissed because it was
not peer reviewed. This is some of the most careful work out there, and
just because it was published in the /Harvard Law Review /Judge
Easterbook decides to dismiss it out of hand. I believe that Professor
Milyo, who is on the other side of these issues, also found no
relationship between public confidence and voter id laws. On the other
side of that is the Court's statement about those relationships in the
/Crawford/case. Judge Easterbrook takes that as some kind of established
fact which cannot be rebutted by more evidence, despite our relative
lack of experience back in the 2008 /Crawford/case with voter id laws.
3. The opinion puts forward the narrowest test yet I've seen for
deciding when a vote denial type claim (which Easterbrook calls a voter
qualification claim) violates section 2 of the Voting Rights Act. He
cites statistics showing whites are much, more more likely than blacks
in Milwaukee to have a driver's license (the easiest form of voter id to
use in WI if you have it). No big deal he says: black voting rates are
high enough, and so long as "everyone has the same opportunity to get a
qualifying voter ID" in Wisconsin there can be no voting rights
violation. Never mind that because of past discrimination
African-American voters are on average poorer and will have a harder
time coming up with the money for the underlying documents for a voter
id. The rich and poor can both sleep under bridges. To Easterbrook, one
just "scrounges" the money to get the birth certificate---there is no
sensitivity that no everyone is as rich as a federal judge.
4. The opinion is also full of things that make my blood boil, like the
false claim that one needs a voter id to fly, or the false analogy that
one needs an id to buy sudafed. To begin with, one does not need a voter
id to fly. Also, getting sudafed is not a constitutional right, and in
any case, WI pharmacists likely accept all kinds of ids that are not ok
for voting (like a veterans id) to buy Sudafed.
5. What bothers me most is the dismissive tone. But it is unsurprising.
The evidence on the stay motion was uncontradicted (and conceded by the
state of Wisconsin) that out of state voters won't have time to get the
underlying documents they need in time for the next election. Such
disenfranchisement is no big deal for Judge Easterbrook.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Judge Easterbook Dings Persily and Ansolabehere's Work on Voter ID
Because it Appeared in Harvard Law Review
<http://electionlawblog.org/?p=66409>
Posted onOctober 6, 2014 1:55 pm
<http://electionlawblog.org/?p=66409>byRick Hasen
<http://electionlawblog.org/?author=3>
and not a peer reviewed journal.
Unreal.
<http://pdfserver.amlaw.com/nlj/Seventh%20Circuit%20voter%20ID%20ruling.pdf>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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