[EL] WI decision--SCOTUS order

Thu Oct 9 20:02:19 PDT 2014

Josh, I would think SCOTUS would follow with the second order, as you and Rick contemplate, but it's worth pointing out (as you now have) that procedurally that would still need to happen--especially since some of the Twitter headlines that I've seen say that SCOTUS has blocked Wisconsin's voter ID law (which, for the reasons you discuss, isn't technically true).  Indeed, insofar as Scotusblog tonight is reporting that SCOTUS's current order bars Wisconsin from enforcing its voter ID law, I'm not sure that that report is entirely accurate.  (I really, of course, that all this is very technical, but I want to make sure that folks understand the situation as accurately and precisely as possible.)

Edward B. Foley
Ebersold Chair in Constitutional Law
Ohio State University Moritz College of Law
(614) 292-4288

On Oct 9, 2014, at 10:51 PM, Josh Douglas <joshuadouglas at gmail.com<mailto:joshuadouglas at gmail.com>> wrote:

If the status quo remains as it is now, then yes, the 7th Circuit's judgment reversing the district court will be in effect on Oct. 27, in time for this year's elections.  That is to say that WI could require IDs if nothing else occurs in this litigation and the mandate issues in the normal course.  But tonight's SCOTUS opinion surely means that the Court also will issue a stay of the 7th Circuit's merits decision.

On Thu, Oct 9, 2014 at 10:46 PM, Foley, Edward <foley.33 at osu.edu<mailto:foley.33 at osu.edu>> wrote:
Josh (& others), is it correct then to say that--absent further order from SCOTUS (which Rick contemplates but hasn't happened yet)--that Wisconsin's voter ID will be in effect on Election Day because the mandate reversing the district court's injunction will have issued by then?

Edward B. Foley
Ebersold Chair in Constitutional Law
Ohio State University Moritz College of Law
(614) 292-4288<tel:%28614%29%20292-4288>

On Oct 9, 2014, at 10:40 PM, Josh Douglas <joshuadouglas at gmail.com<mailto:joshuadouglas at gmail.com>> wrote:

To supplement Rick's point, unless the court issues the mandate sooner, it will issue "7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later."  See Fed. R. App. P. 41(b).  A litigant has 14 days after the entry of judgment to file for a rehearing en banc.  See Fed. R. App. P. 40.  Thus, the mandate on the merits decision will not issue until 21 days after the 7th Circuit's issuance of the final judgment on Oct. 6--or on Oct. 27--unless the court explicitly orders the mandate to issue sooner.  The 7th Circuit's decision is thus not "in force" until that date.

Josh

On Thu, Oct 9, 2014 at 10:28 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
First my own correction: the dissent was Alito with Scalia and Thomas joining. I had said it was a Scalia dissent.
On Ned's point, I don't believe the mandate's issued and there is still time for an en banc rehearing petition so I don't believe the 7th Cir.opinion goes into immediate effect.

On 10/10/14, 4:19 AM, Foley, Edward wrote:
CORRECTION: my question to the list (reprinted below) inadvertently labeled the Seventh Circuit's injunction as preliminary; it's permanent.  But the essence of the question still stands: if SCOTUS so far has only vacated the Seventh Circuit's stay of that injunction, but the Seventh Circuit has also reversed the merits of that injunction, is or is not the injunction still in force?

Edward B. Foley
Ebersold Chair in Constitutional Law
Ohio State University Moritz College of Law
(614) 292-4288<tel:%28614%29%20292-4288>

On Oct 9, 2014, at 9:58 PM, Foley, Edward <foley.33 at osu.edu<mailto:foley.33 at osu.edu>> wrote:

Could Civil Procedure experts help me understand the status of the district court's preliminary injunction in light of tonight's Supreme Court ruling?  As I understand it, SCOTUS has acted only so far on the plaintiffs' application to vacate the Seventh Circuit's stay of the district court's preliminary injunction.  The order appears to apply only to 14A352, and not the plaintiffs' subsequent application to stay the Seventh Circuit's reversal of the PI (14A376).  If this is correct, then is not the Seventh Circuit's reversal of the PI still operative, and if so, does that not mean that the PI is NOT operative (assuming the Seventh Circuit's mandate has issued)?

Edward B. Foley
Ebersold Chair in Constitutional Law
Ohio State University Moritz College of Law
(614) 292-4288<tel:%28614%29%20292-4288>

On Oct 9, 2014, at 9:49 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:

Breaking: Supreme Court Stops Immediate Implementation of WI Voter ID Law<http://electionlawblog.org/?p=66601>
Posted on October 9, 2014 6:47 pm<http://electionlawblog.org/?p=66601> by Rick 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 did the 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}

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Rick Hasen
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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<tel:949.824.3072> - office
949.824.0495<tel:949.824.0495> - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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