[EL] WI decision-voter id stayed
Rick Hasen
rhasen at law.uci.edu
Thu Oct 9 19:09:50 PDT 2014
updated post:
Analysis: Supreme Court Stops Immediate Implementation of WI Voter
ID Law; and a Thought on Texas <http://electionlawblog.org/?p=66601>
Posted onOctober 9, 2014 6:47 pm
<http://electionlawblog.org/?p=66601>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A352-Wisconsin-voting-order-10-9-14.pdf>is
the order, and judged by the dissent of Justice Scalia, joined by Alito
and Thomas, the basis was the Purcell objection, the proximity to the
upcoming election and the risk of electoral chaos.
Not only didthe apparent Kagan/Breyer strategy I explained last night
<http://electionlawblog.org/?p=66570>to keep the Chief and Kennedy
likely work, here's something odd: I probably agree with the votes on
all three of the decisions of the Court in the election cases: OH, NC,
and WI. Three in a row for me and the Court---unheard of.
Now there's an odd procedural wrinkle here. There has also been a ruling
on the merits in the WI voter id law, and presumably now Judge
Easterbrook & Co could go and reorder implementation of ID for this
election. Not that this is likely, but there's a second pending
emergency WI petition to stop immediate implementation of the WI ruling
on the merits, and I expect that the Court will follow through with a
second order with the same vote.
So how to reconcile the three cases' votes? In Ohio, the court changed
the law close to the election, but more importantly, it imposed an order
reestablishing 5 weeks of early voting when the state was still willing
to give four. There was no significant burden on plaintiffs and so the
lower courts were wrong to order this emergency relief. In North
Carolina, 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 seek a preliminary
injunction [this has been corrected]).
That same Purcell principle applies even more strongly to
Wisconsin. 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>).
Finally, what happens now with Texas, with thehuge win
<http://electionlawblog.org/wp-content/uploads/20141009-TXID-Opinion.pdf>for
challengers to Texas's voter id law whichJustin wrote about
<http://electionlawblog.org/?p=66595>earlier? It is 4 am where I am and
I may have missed it, but in all of the court's findings---the Texas law
violates the Equal Protection clause, is a poll tax, violates the Voting
Rights Act, and engaged in enough intentional discrimination to be put
back under preclearance--there is no discussion of whether the actual
order will apply to this election and the injunction will stop its use
in this election.
This order too creates a huge Purcell problem,as I've blogged
<http://electionlawblog.org/?p=66519>, changing the rules so close to
the election. If the district court orders an immediate stop to Texas's
id law, I expect the 5th Circuit (if not the Supreme Court) to reverse
that on Purcell grouns.
[This post has been updated.]
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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>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
On 10/10/14, 3:49 AM, Rick Hasen wrote:
>
>
> Breaking: Supreme Court Stops Immediate Implementation of WI Voter
> ID Law <http://electionlawblog.org/?p=66601>
>
> Posted onOctober 9, 2014 6:47 pm
> <http://electionlawblog.org/?p=66601>byRick Hasen
> <http://electionlawblog.org/?author=3>
>
> Here
> <http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A352-Wisconsin-voting-order-10-9-14.pdf>is
> the opinion, and judged by the dissent of Justice Scalia, joined by
> Alito and Thomas, the basis was the Purcell objection, the proximity
> to the upcoming election and the risk of electoral chaos.
>
> Not only didthe apparent Kagan/Breyer strategy I explained last night
> <http://electionlawblog.org/?p=66570>to keep the Chief and Kennedy
> likely work, here's something odd: I probably agree with the votes on
> all three of the decisions of the Court in the election cases: OH, NC,
> and WI. Three in a row for me and the Court---unheard of.
>
> [this post is in progress}
>
> --
> 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
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
--
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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