[EL] US Supreme Court in past hasn't hesitated to add names to ballots very close to an election

[Richard Winger]

Four times, the US Supreme Court has ordered that names of certain candidates and parties be added to a general election ballot very close to that election.

In Norman v Reed, 502 US 279 (1992), the Court ordered that the Harold Washington Party be added to the November 1990 ballots in Cook County, on October 25, 1990.  That was only 12 days before election day (November 6, 1990).  Cook County had to reprint 3,000,000 ballots.

In Hadnott v Amos, 394 US 358 (1969), the Court ordered several Alabama counties to add the nominees of a predominantly black political party on October 19, 1968.  That was only 17 days before election day of November 5, 1968.  The parties were called the "Lowndes County Freedom Association" (and similar names in different counties).

In McCarthy v Briscoe, 429 US 1317 (1976), the Court ordered Texas to put independent presidential candidate Eugene McCarthy on the ballot, after the 5th circuit had kept him off.  The US Supreme Court order came on September 30, 1976, only 33 days before election day of November 2, 1976.

In Davis v Adams, 400 US 1203 (1970), the Court ordered Florida to print the name of a Democratic candidate on the Democratic primary ballot.  The order came on August 5, 1970, and the primary was September 8, 1970, a duration of only 34 days.  This was a filing fee case and the Florida Supreme Court had earlier kept the candidate off.

The Fifth Circuit itself put Eugene McCarthy on the Florida ballot on October 7, 1976, only 26 days before the election of November 2.  Back then the Eleventh Circuit didn't exist and Florida was in the Fifth Circuit.

A U.S. District Court in Mississippi used the Voting Rights Act to put a candidate on the Mississippi general election ballot only 13 days before the election, and in Allen v State Board of Elections, 393 US 544 (1969), the US Supreme Court said the US District Court had done the right thing.  The Mississippi US District Court order was on October 26, 1966, and the election was November 8, 1966.





Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147


________________________________
 From: Rick Hasen <rhasen at law.uci.edu>
To: "law-election at UCI.edu" <law-election at UCI.edu> 
Sent: Monday, October 13, 2014 1:07 AM
Subject: [EL] Justice Alito’s Disturbing Statement in Wisconsin Voter ID Case
 


Justice Alito’s Disturbing Statement in Wisconsin Voter ID Case
Posted on October 13, 2014 1:06 am by Rick Hasen
Last week the Supreme Court voted 6-3 to stop a horrendous 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” 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.) 
Posted in election administration, The Voting Wars, voter id, Voting Rights Act
-- 
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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