[EL] Justice Alito’s Disturbing Statement in Wisconsin Voter ID Case

[Rick Hasen]

    Justice Alito’s Disturbing Statement in Wisconsin Voter ID Case
    <http://electionlawblog.org/?p=66784>

Posted onOctober 13, 2014 1:06 am 
<http://electionlawblog.org/?p=66784>byRick Hasen 
<http://electionlawblog.org/?author=3>

Last week <http://electionlawblog.org/?p=66601>the Supreme Courtvoted 
6-3<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A352-Wisconsin-voting-order-10-9-14.pdf>to 
stop ahorrendous <http://electionlawblog.org/?p=66413>7th Circuit court 
order allowing Wisconsin to immediately put its voter id law into 
effect. Regardless of where you stand on the desirability of voter id 
laws (I oppose these tough state laws but support a national voter id 
program coupled with universal voter registration done by the federal 
government with the government picking up all costs of verifying 
identity), the Supreme Court made the right call. Wisconsin had an 8 
month plan to implement ID which was going to have to be done within 8 
weeks; the state conceded that up to 10 percent of eligible voters might 
not be able to get ID in time for the election; and the parties agreed 
that some WI voters born out of state who had to get out of state birth 
certificates were going to have a very difficult time getting their 
documentation in time.  On top of that, there were absentee voters who 
had already voted before the ID law was in effect, and they were going 
to be disenfranchised unless they followed up with getting additional 
documentation to WI election officials in time.

Faced with all of this, the majority put WI’s voter id law on hold for 
this election, so that it may be rolled out in a smoother way over time. 
  But Justice Alito, joined by Justices Scalia and Thomas, dissented. 
They seemed to acknowledge the disenfranchising risks and the “Purcell 
principle 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/supreme_court_voting_rights_decisions_contradictions_in_wisconsin_ohio_north.html>” 
that courts should not change election rules just before an election, 
but they saw a bigger principle at stake:

    There is a colorable basis for the Court’s decision due to the
    proximity of the upcoming general election. It is particularly
    troubling that absentee ballots have been sent out without any
    notation that proof of photo identification must be submitted. But
    this Court “may not vacate a stay entered by a court of appeals
    unless that court clearly and‘demonstrably’ erred in its application
    of ‘accepted standards.’”/Planned Parenthood of Greater Tex.
    Surgical Health Servs./v/. Abbott/, 571 U. S. ___, ___ (2013) (slip
    op., at 1) (SCALIA, J., concurring in denial of application to
    vacate stay) (quoting/Western Airlines, Inc./v./Teamsters/, 480 U.
    S. 1301, 1305 (1987) (O’Connor, J., in chambers);some internal
    quotation marks omitted). Under that test, the application in this
    case should be denied.

The bigger principle Justice Alito recognizes is deference to the Court 
of Appeals. Of course, the Supreme Court showed no deference in Purcell 
itself, when the Ninth Circuit issued a stay stopping use of Arizona’s 
law. No deference to the Courts of Appeal in the Ohio or North Carolina 
cases either, both cases in which Courts expanded voting rights. So why 
deference here? Because the 7th Circuit was clearly right? Well that’s 
belied by the 7th Circuit’s 5-5 split over whether to rehear the 
Wisconsin case en banc.

Further, why should a principle of deference which is applied as a 
matter of equity trump the actuality, and not merely the risk, of voter 
disenfranchisement in Wisconsin? Simply put, Justices Alito, Scalia and 
Thomas do not value the right to vote as strongly as the other members 
of the Court (which is also shown in their separate opinion in the 2008 
Crawford Indiana voter id case, where Justice Scalia wrote for these 
Justices that so long as most people would not be disenfranchised by a 
voter id law, then no one could challenge that law—even those people who 
would have special difficulty getting an ID.)

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,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

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