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

Mon Oct 13 07:18:36 PDT 2014

Generally speaking, everything Rick decries here about "deference" eroding
"the right vote" is analogous to what others once said in the
campaign-finance context: That "deference" to Congress on campaign finance
laws erodes "the right to speak."

Yet, I do not recall Rick writing that JJ. Souter and Breyer, and others,
were incorrect in *Shrink PAC* (and other cases) to defer by adopting less
rigorous review. Indeed, I believe Rick called for deference in an *amicus*
brief on electioneering communications (*Wisconsin Right to Life (2007)*?)
-- a form of independent speech directly implicating the right to speak,
not just the right to contribute to candidates.

In both the voting and campaign-finance contexts, the advocates of
deference fear "distortion" (no matter the precise nomenclature used to
convey their sentiments): The distortion of speech markets with
campaign-finance laws, *a la Austin;* the "distortion" of balloting
tabulations with laws requiring voter ID.

But preventing "distortion" in speech markets puts government in a role the
Founders rightly rejected, that of censor. Whereas stopping "distortion" in
the balloting process is a virtue no government the world over can (openly)
disavow.

If there's a difference in the wisdom of deferring, perhaps that's it.

(Though I'd want to read more on the topic to say so with certainty).

Steve

On Mon, Oct 13, 2014 at 4:07 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>    Justice Alito’s Disturbing Statement in Wisconsin Voter ID Case
> <http://electionlawblog.org/?p=66784>
> Posted on October 13, 2014 1:06 am <http://electionlawblog.org/?p=66784>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Last week <http://electionlawblog.org/?p=66601> the Supreme Court voted
> 6-3
> <http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A352-Wisconsin-voting-order-10-9-14.pdf>to
> stop a horrendous <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.)
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66784&title=Justice%20Alito%E2%80%99s%20Disturbing%20Statement%20in%20Wisconsin%20Voter%20ID%20Case&description=>
>   Posted in election 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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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-- 
Steve Hoersting
CENTER for COMPETITIVE POLITICS
124 S. West Street
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