[EL] thoughts on Texas

Rick Hasen rhasen at law.uci.edu
Tue Oct 14 14:52:49 PDT 2014 

    Analysis: Texas Voter ID Decision: To #SCOTUS or Not?
    <http://electionlawblog.org/?p=66869>

Posted onOctober 14, 2014 2:51 pm 
<http://electionlawblog.org/?p=66869>byRick Hasen 
<http://electionlawblog.org/?author=3>

TheFifth Circuit's order 
<http://electionlawblog.org/wp-content/uploads/20141014-5th.pdf> in the 
Texas voter id case relies on "the Purcell principle" that courts should 
not change election rules in advance of the election. Althoughthis 
outcome was expected <http://electionlawblog.org/?p=66643>, this ruling 
also shows,as I laid out in/Slate/, 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/supreme_court_voting_rights_decisions_contradictions_in_wisconsin_ohio_north.html> the 
difficulty of applying the Purcell principle in the case where voters 
face disenfranchisement.

Both the majority and the concurrence recognize the real risk that 
voters will be disenfranchised by the ruling of the Court. The majority 
flatly states: "The individual voter plaintiffs may be harmed by the 
issuance of this stay.4 But we find that this harm does not outweigh the 
other three factors." The concurrence is more ambivalent but feels bound 
by the Purcell principle from the Supreme Court's recent OH, WI ,and TX 
cases:

    The district court issued a thorough order finding that the Texas voter
    ID law is discriminatory. We should be extremely reluctant to have
    an election
    take place under a law that a district court has found, and that our
    court may
    find, is discriminatory. As always, however, we must follow the
    dictates of the
    Supreme Court. In two recent decisions, it stayed injunctions issued
    based on
    findings that changes in an election law were discriminatory. See North
    Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL
    5026111
    (U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P.,
    14A336,
    2014 WL 4809069 (U.S. Sept. 29, 2014). It also lifted the Seventh
    Circuit's stay
    of a district court's order in place since the spring that enjoined
    Wisconsin's
    voter ID law. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9,
    2014). I agree with Judge Clement that the only constant principle
    that can
    be discerned from the Supreme Court's recent decisions in this area
    is that its
    concern about confusion resulting from court changes to election
    laws close in
    time to the election should carry the day in the stay analysis. The
    injunction
    in this case issued even closer in time to the upcoming election
    than did the
    two out of the Fourth and Sixth Circuits that the Supreme Court recently
    stayed. On that limited basis, I agree a stay should issue.

Yet there are two potential differences here, which could suggest 
applying the Purcell principle differently (as I suggested at /Slate/). 
  First, the risk of changing the rules close to the election should 
perhaps be balanced with the risk of disenfranchisement. Second, there 
is less of a problem of turning OFF a voter ID law than turning it ON. 
  Here, there may be some people who are asked for ID who should not be 
if the ID law is put on hold. But that's a lower risk of 
disenfranchisement than if the law, if discriminatory, remains in place. 
  The majority's response on this point was exceptionally weak. The 
court wrote that the plaintiffs "fail to recognize that inconsistent 
treatment of voters, even in just 'some isolated precincts,' raises a 
significant constitutional concern, particularly when this disparate 
treatment is virtually guaranteed by the late issuance of the 
injunction." This is weak because there will be inconsistent treatment 
of voters either way (including the disenfranchisement of voters who are 
eligible to vote but who won't be because of an arguably discriminatory 
voter id law). Justinmakes this point further 
<http://electionlawblog.org/?p=66868>.

So if you are the DOJ or the private plaintiffs, do you go to the 
Supreme Court for emergency relief on this basis?  There's not much of a 
downside at this point. The Court is almost certainly going to address 
the merits of the equal protection and section 2 issues in either this 
case, or the WI, NC or OH cases (or all of them).  So there's no keeping 
this issue out of the Court. Further, there are the reasons I've given 
above for distinguishing these cases under the Purcell principle. It is 
a longshot that they will be acceptable to the conservative 5 Justice 
majority of the Court, but there's little harm in trying. But in this 
one, there's a greater chance of a 5-4 split than in these other cases.

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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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