[EL] thoughts on NC/WI SCOTUS

[Rick Hasen]

    Why Breyer and Kagan Did Not Dissent in NC Voting Case, and What
    That Tells Us About WI Voter ID Case
    <http://electionlawblog.org/?p=66570>

Posted onOctober 9, 2014 8:11 am 
<http://electionlawblog.org/?p=66570>byRick Hasen 
<http://electionlawblog.org/?author=3>

Yesterday'sSupreme Court 
order<https://s3.amazonaws.com/s3.documentcloud.org/documents/1311436/14a358-nc.pdf>in 
theNorth Carolina voting case 
<http://www.nytimes.com/2014/10/09/us/parts-of-north-carolina-law-limiting-vote-are-restored-by-justices.html?ref=politics&_r=0>(whichJustin 
covered here <http://electionlawblog.org/?p=66538>while I was travelling 
and which Howardrounds up 
<http://howappealing.abovethelaw.com/100814.html#058358>) reached the 
result I had beenexpecting <http://electionlawblog.org/?p=66433>: a 
reversal of the 4th Circuit order restoring same day voter registration 
and the counting of certain out-of-precinct ballots for the upcoming 
election.  But the order had some surprises, and it may shed light on 
the other big pending case, Wisconsin's voter id case.

The first surprise was the timing. The order did not come until about 7 
pm on the East Coast (here'sLyle's SCOTUSBlog coverage 
<http://www.scotusblog.com/2014/10/court-allows-north-carolina-voting-limits/>). 
  Given thedelays in the case 
<http://electionlawblog.org/?p=66469>(which seem to be at least in part 
due to Justice Ginsburg's and Justice Sotomayor's dissent), why release 
at 7 pm and not wait until the next day?  This suggests to me that there 
may have been more going on behind the scenes. Justice Ginsburg is known 
as a quick writer and what she wrote would not have taken so long. There 
could have been discussions or negotiations that are not clear from the 
brief order.

Which brings me to the second and more important surprising point: this 
was not a 5-4 decision; it was a 7-2 decision. Why did Justices Breyer 
and Kagan not join with Justices Ginsburg and Sotomayor in dissent. 
There are both substantive and strategic possibilities. Substantively, 
Justices Breyer and Kagan could well agree with me that ultimately North 
Carolina's law, which I've dubbed the strict set of voting restrictions 
we've seen enacted as a package since the passage of the 1965 Voting 
Rights Act,should be found unconstitutional. 
<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/> But 
even so, under the Purcell v. Gonzalez principle, it was wrong for the 
4th Circuit to make this change in the rules so close to the election 
(particularly where plaintiffs waited a while to bring their initial suit).

But there's a strategic angle here as well.  The Purcell issue looms 
very large in the Wisconsin voter id case. That is, even if the Supreme 
Court ultimately would say that Wisconsin's law is constitutional and 
does not violate the Voting Rights Act, this is a /very/strong case 
under Purcell. <http://electionlawblog.org/?p=66198> (As I 
explained, the key question is whether Wisconsin has a strong enough 
state interest in its sovereignty over elections to implement a voter id 
law /very quickly/ before the election, when there has been no 
preparation and when the /undisputed evidence/ shows that, by the 
state's own account, up to *10 percent*//of the state's voters could be 
disenfranchised (a position the 7th Circuit en banc dissenters called 
shocking <http://electionlawblog.org/?p=66102>).

By not joining Ginsburg in the NC dissent, Kagan and Breyer are ready to 
(1) appeal to Justices Kennedy and Chief Justice Roberts under the 
Purcell principle, using an argument of consistency and/or (2) write a 
very strong dissent excoriating the majority for allowing WI's voter id 
law to go into effect now when it literally can disenfranchise thousands 
of Wisconsin voters.

How will it look if the five conservative Justices stand on the side of 
Republicans in the Ohio, North Carolina, and Wisconsin cases? Very bad.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,Supreme Court 
<http://electionlawblog.org/?cat=29>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>

-- 
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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