[EL] Breaking news (7th Cir.) / more news 10/10
Justin Levitt
levittj at lls.edu
Fri Oct 10 11:26:39 PDT 2014
BREAKING: 7th Circuit Again Splits 5-5 on ID
<http://electionlawblog.org/?p=66650>
Posted onOctober 10, 2014 11:24 am
<http://electionlawblog.org/?p=66650>byJustin Levitt
<http://electionlawblog.org/?author=4>
More breaking news: The 7th Circuit, sitting en banc,just split again
<http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D10-10/C:14-2058:J:Posner:dis:T:op:N:1433281:S:0>5-5
over whether to review the panel opinion's decision on the merits. Judge
Posner had apparently asked for the vote himself, and wrote28 pages
disagreeing
<http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D10-10/C:14-2058:J:Posner:dis:T:op:N:1433281:S:0>with
the refusal to take the case en banc. His Appendix --- the
documentation and bureaucratic process required of one person trying to
get the underlying papers to secure an ID --- is clearly aimed squarely
at Judge Easterbrook: it's entitled "Scrounging for your birth
certificate in Wisconsin."
For those keeping score: on September 12, a panel of the 7th Circuit
voted to stay the district court's injunction against Wisconsin's ID
rule (letting the ID requirement go forward). On September 26, the
courtdivided 5-5
<http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D09-30/C:14-2059:J:Williams:dis:T:op:N:1426793:S:0>,
refusing to rehear that decision en banc. On October 9, the Supreme
Courtvacated that stay
<http://www.supremecourt.gov/opinions/14pdf/14a352_i42k.pdf> pending the
filing (and disposition) of a cert petition (re-establishing the
district court's injunction for the election, and stopping the ID law).
On October 6, a panel of the 7th Circuitissued a decision on the merits
<http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D10-06/C:14-2059:J:Easterbrook:aut:T:fnOp:N:1429869:S:0>,
reversing the district court's injunction (and therefore letting the ID
requirement go forward). This morning, the courtdivided 5-5
<http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D10-10/C:14-2058:J:Posner:dis:T:op:N:1433281:S:0>,
refusing (on Judge Posner's request) to rehear that decision en banc.
(It's possible the plaintiffs could also ask for rehearing en banc ...
and I think that's a separate request with separate implications for the
clock.)
There's been a discussionon the listserv
<http://department-lists.uci.edu/pipermail/law-election/2014-October/010131.html> about
exactly where the ID requirement stands right now. Technically, it's
right now enjoined by the district court order. The 7th Circuit's
decision on the merits (reinstating the ID rule) will kick in when the
7th Circuit issues its mandate, which is still forthcoming (there's a
regular calendar, but the court could also order it earlier). And given
the Supreme Court's order yesterday, it's exceedingly likely that the
plaintiffs will promptly ask the Supreme Court to issue another stay ---
this time, of the merits decision --- and that the Supreme Court will
actually do so.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66650&title=BREAKING%3A%207th%20Circuit%20Again%20Splits%205-5%20on%20ID&description=>
Posted inelection administration
<http://electionlawblog.org/?cat=18>,election law and constitutional law
<http://electionlawblog.org/?cat=55>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
"How to Predict a Voting Rights Decision; The Supreme Court just
made it harder to vote in some states and easier in others."
<http://electionlawblog.org/?p=66651>
Posted onOctober 10, 2014 11:12 am
<http://electionlawblog.org/?p=66651>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis
piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/supreme_court_voting_rights_decisions_contradictions_in_wisconsin_ohio_north.html>for
Slate. It begins:
If you have been following developments at the Supreme Court in
voting cases over the past few weeks, the results have been dizzying
and apparently inconsistent. First the court blocked
<http://electionlawblog.org/?p=66036> a lower court ruling that had
restored a week of early voting in Ohio. Then the court blocked
<http://electionlawblog.org/?p=66570> a lower court ruling that had
restored North Carolina's recently repealed provisions allowing for
same-day voter registration and the counting of early voting. Then,
Thursday night, the court blocked
<http://electionlawblog.org/?p=66601> a lower court ruling that had
put Wisconsin's voter ID law into immediate effect, after lower
courts had consistently blocked its use until voting rights
challenges had run their course. And soon enough, the court may be
asked to block <http://electionlawblog.org/?p=66643>a 147-page lower
court ruling
<http://electionlawblog.org/wp-content/uploads/20141009-TXID-Opinion.pdf>,
issued late Thursday night, that held Texas' voter ID law
unconstitutional and a violation of the Voting Rights Act. Sometimes
(as in Wisconsin) the Supreme Court has been protecting voters; at
other times (as in Ohio and North Carolina) it appears to be
protecting the ability of states to impose whatever voting rules
they want.
But there is a consistent theme in the court's actions, which we can
call the "Purcell principle" after the 2006 Supreme Court case
/Purcell v. Gonzalez/
<http://caselaw.lp.findlaw.com/data2/circs/us/06a375.pdf>: Lower
courts should be very reluctant to change the rules just before an
election, because of the risk of voter confusion and chaos for
election officials. The Texas case may raise the hardest issue under
the Purcell principle, and how it gets resolved will matter a lot
for these types of election challenges going forward.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66651&title=%E2%80%9CHow%20to%20Predict%20a%20Voting%20Rights%20Decision%3B%20The%20Supreme%20Court%20just%20made%20it%20harder%20to%20vote%20in%20some%20states%20and%20easier%20in%20others.%E2%80%9D&description=>
Posted inelection administration
<http://electionlawblog.org/?cat=18>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>
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>
--
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141010/639ca852/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/20141010/639ca852/attachment.png>
View list directory