[EL] more thoughts on Texas and Wisconsin

Fri Oct 10 02:15:44 PDT 2014

    The Biggest Aspect of the Texas Case: Texas To Be Covered Again by
    Section 5 (If Case Stands) <http://electionlawblog.org/?p=66648>

Posted onOctober 10, 2014 2:14 am 
<http://electionlawblog.org/?p=66648>byRick Hasen 
<http://electionlawblog.org/?author=3>

Justin noted <http://electionlawblog.org/?p=66595>a key aspect of the 
Texas id decision which I want to highlight: "Also extremely important: 
the court expressly finds intentional discrimination relevant to bail-in 
under the Voting Rights Act, and says it will consider a bail-in order 
in the days to come.  If the court indeed follows up with a bail-in 
order, Texas could become the first state brought back under a 
preclearance regime since /Shelby County/."

Getting Texas and North Carolina covered again under the Bail In 
provisions of the Voting Rights Act has been a key strategy of the U.S. 
Justice Department. These are test cases, and it is an extremely high 
hurdle. Not only does DOJ have to prove the state engaged in intentional 
racial discrimination in voting, but the court upon so finding still has 
discretion as to whether to require the state to be subject again to 
preclearance and to fashion the scope of the order (in terms of time and 
types of changes subject to preclearance). At the end of the TX order, 
the judge says there will be a status conference to determine the scope 
of the preclearance.

If this works, it will be very important because it would mean that a 
variety of changes, such as voter id laws, registration laws, and 
redistricting, would again be subject to federal approval (either DOJ or 
a three judge court in DC).  Preclearance is a big stick for the federal 
government.

In /Shelby County/, 4 Justices said that preclearance had to be tied to 
current conditions to be constitutional. (Justice Thomas would have 
gotten rid of preclearance even for bail in). 4 Justices believe 
preclearance even under the old rules is ok. If the TX trial court has 
made credible findings that Texas has engaged in intentional racial 
discrimination in voting, even the conservative Justices could agree to 
preclearance. But that's no sure bet, and you can be sure that Texas 
will litigate this question very, very hard.

Share 
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66648&title=The%20Biggest%20Aspect%20of%20the%20Texas%20Case%3A%20Texas%20To%20Be%20Covered%20Again%20by%20Section%205%20%28If%20Case%20Stands%29&description=>
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>

    Don't Get Too Excited That #SCOTUS Blocked Wisconsin's Voter ID Law
    This Election <http://electionlawblog.org/?p=66646>

Posted onOctober 10, 2014 2:04 am 
<http://electionlawblog.org/?p=66646>byRick Hasen 
<http://electionlawblog.org/?author=3>

I've explained why <http://electionlawblog.org/?p=66601>I think the 
Supreme Court was correct to block Wisconsin's voter id law for use in 
this election. There was too much of a risk that the law could not be 
implemented fairly in time for this election, leaving many voters 
disenfranchised (a point WI basically conceded and then said "so what").

But, judged by Justice Alito's dissent in yesterday's Supreme Court 
order, the Court acted pursuant to thisPurcell principle 
<http://electionlawblog.org/?p=66643> and not because it believes 
Wisconsin is likely to succeed on the merits.  All of these cases OH, 
NC, and WI (and soonTexas <http://electionlawblog.org/?p=66643>?) raise 
different issues when considered on an emergency basis compared to when 
the Court, on the merits, will (if it agrees to hear these case) decide 
whether new restrictions in voting violate the Constitution's Equal 
Protection Clause and/or section 2 of the Voting Rights Act.  On that 
point,I recently wrote in /Slate/: 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may_reach_the_supreme_court_from_ohio_wisconsin_north.html>

    But it's no good betting that the Supreme Court will read either the
    Constitution or the Voting Rights Act so expansively. Indeed, many
    of us were apoplectic
    <http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html> when
    the Supreme Court in /Shelby County /struck down the preclearance
    provisions of the Voting Rights Act in 2013 precisely because we
    knew that these other tools for policing cutbacks in early voting
    were unlikely to be successful given how the courts had already
    interpreted the scope of these provisions. For the most part, it has
    been Democratic and more liberal judges who have issued opinions
    reading voting rights protection broadly, and it has been Republican
    and more conservative judges who have issued opinions reading the
    protections narrowly. There is every reason to expect the same
    pattern at the Supreme Court, with a 5--4 conservative-liberal split
    on these questions.

So we should celebrate that the Supreme Court did the right thing now in 
the Wisconsin case. But don't expect them to continue doing the right 
thing.  The Chief and Justice Kennedy will very likely be with today's 
Wisconsin dissenters on the merits down the line.

Share 
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66646&title=Don%E2%80%99t%20Get%20Too%20Excited%20That%20%23SCOTUS%20Blocked%20Wisconsin%E2%80%99s%20Voter%20ID%20Law%20This%20Election&description=>
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>

    Is Texas ID Law Blocked Now? Should It Be? Would It Stay Blocked?
    <http://electionlawblog.org/?p=66643>

Posted onOctober 10, 2014 1:56 am 
<http://electionlawblog.org/?p=66643>byRick Hasen 
<http://electionlawblog.org/?author=3>

In mylast post, <http://electionlawblog.org/?p=66601>I wrote about 
themassive opinion 
<http://electionlawblog.org/wp-content/uploads/20141009-TXID-Opinion.pdf>in 
the Texas voter id case that "there is no discussion of whether the 
actual order will apply to this election and the injunction will stop 
its use in this election." Justinnow says 
<http://electionlawblog.org/?p=66613> that the opinion "does, indeed, 
enter a permanent injunction against the ID law -- on pp. 142-143 of the 
opinion."  I fully agree with that, but that does not tell us what is to 
happen (or what should happen) in this election.

Here is the operative language from page 143 of the opinion: "Under the 
injunction to be entered barring enforcement of SB 14's 
voter identification provisions, Texas shall return to enforcing the 
voter identification requirements for in-person voting in effect 
immediately prior to the enactment and implementation of SB 14."

This contemplates a separate injunction from the opinion, and it is not 
clear that this order will have an immediate effect for this election. I 
am not saying that the judge won't block the id law for this 
election---only that this opinion itself does not have the force of law 
to do so, and that there will be a separate order.

The first question this raises is whether there is an order to be 
appealed from, or whether Texas needs to wait.  (I don't have access to 
PACER, and there could be a separate order already sitting there.)

But let's assume that the court issues such an order blocking ID for 
this election.In last night's post<http://electionlawblog.org/?p=66601>I 
said that this would create a huge /Purcell/problem, changing the rules 
just before the election.Justin disagrees 
<http://electionlawblog.org/?p=66613>, saying that not all Purcell 
problems are alike, and that in Texas case, blocking the id would be 
easy-peasy and not violate Purcell:

    The only required logistics involve maintaining the status quo ante
    on election day itself, which involves a bit of pollworker training
    --- the pollworker training used for years before --- about what ID
    is acceptable.  There may well be a bit of confusion.  But weighing
    a small amount of confusion against the implementation of a law
    found to be the product of intentional discrimination with what a
    court found (after a full trial) to be a substantial amount of
    likely disenfranchisement is nothing the Court has yet encountered.

He goes on to note that although Purcell involved a very similar fact 
pattern---the 9th Circuit at the last minute blocking implementation of 
AZ's id law, the 9th Circuit case is different because the court gave no 
reason for its order reversing a trial court decision to allow the id 
law to go forward. And here we have 145 pages of reasons.

This raises two questions.

1. What is the Purcell Principle?  (I'm going to write this idea up for 
a symposium--dibs.) Is it that one should not change election rules 
before the election because doing so can cause voter confusion and/or 
electoral chaos? Or is it that courts must /weigh /such risks? How 
should such risks be weighed against the risks of voter 
disenfranchisement? Or is it that courts must /give good reasons/for 
blocking a law before an election? I don't find the last of these very 
persuasive, but I think the key difference between my view and Justin's 
is about how much weighing courts are to do here.  I think Justin must 
be right that there has to be some weighing. And if there is a serious 
risk of voter disenfranchisement, as in Wisconsin (and perhaps Texas---I 
still need to read the full opinion), that counsels to give courts more 
leeway to block things. So normatively this is a difficult question.

2. What will the 5th Circuit or the Supreme Court /do/ if the judge 
blocks the Texas voter id law this election? My prediction is that the 
5th Circuit will reverse the trial court, whether or not it should do so 
under the Purcell principle. This is based upon my view of the ideology 
of the judges/Justices likely to decide the case, and how I think they 
will read the Purcell principle.

Share 
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66643&title=Is%20Texas%20ID%20Law%20Blocked%20Now%3F%20Should%20It%20Be%3F%20Would%20It%20Stay%20Blocked%3F&description=>
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>

-- 
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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141010/c9c4d4ca/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141010/c9c4d4ca/attachment.png>