[EL] 5th Cir panel

[Josh Douglas]

Having clerked on the 5th Cir., I was waiting anxiously to learn which
judges would be on the emergency panel. Given that Judge Clement is the
senior judge here, this result is not surprising at all. Judge Clement is
one of the most conservative judges on the 5th Circuit. She was on the
short list for Supreme Court when Alito was nominated.

Judge Haynes is a moderate conservative, appointed by George W. Bush. Judge
Costa, who wrote a separate concurrence, has only been on the court since
June.

Especially given that the one Democratic-appointee on the panel concurred,
and given the make-up of the rest of the court, I highly doubt the en banc
5th Cir will hear this appeal. And the unanimity of the panel, along with
the Supreme Court's prior stays this election cycle, suggests that the
Court will likely affirm under the Purcell principle--even though the
district court here found that allowing the state to use its voter ID law
would violate the constitutional right to vote for many voters, on a
discriminatory basis.

On Tuesday, October 14, 2014, Justin Levitt <levittj at lls.edu
<javascript:_e(%7B%7D,'cvml','levittj at lls.edu');>> wrote:

>     BREAKING: 5th Circuit Stays Voter ID Order
> <http://electionlawblog.org/?p=66865>
> Posted on October 14, 2014 2:15 pm <http://electionlawblog.org/?p=66865>
> by Justin Levitt <http://electionlawblog.org/?author=4>
>
> And the wait is over, for now.  The 5th Circuit just stayed the district
> court’s order
> <http://electionlawblog.org/wp-content/uploads/20141014-5th.pdf> blocking
> ID — which means at the moment, the ID law is back in place in Texas.  Stay
> tuned for an application to SCOTUS.  More analysis coming.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66865&title=BREAKING%3A%205th%20Circuit%20Stays%20Voter%20ID%20Order&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>
>      U. Edinburgh Study Suggests Lowering Voting Age to 16
> <http://electionlawblog.org/?p=66862>
> Posted on October 14, 2014 2:04 pm <http://electionlawblog.org/?p=66862>
> by Justin Levitt <http://electionlawblog.org/?author=4>
>
> The Times of India reports
> <http://timesofindia.indiatimes.com/world/uk/Voting-age-should-be-lowered-to-16-Study/articleshow/44804856.cms>
>  on a University of Edinburgh study reviewing voting in the recent
> referendum on Scottish independence, in which 16 and 17-year-old citizens
> were allowed to vote.  The study also found that active discussion of the
> referendum in schools had more influence on the students’ vote than did
> parents.  No word on the comparative influence of One Direction
> <http://www.onedirectionmusic.com/us/home/>.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66862&title=U.%20Edinburgh%20Study%20Suggests%20Lowering%20Voting%20Age%20to%2016&description=>
>   Posted in voting <http://electionlawblog.org/?cat=31>
>      (Some of) the FEC On (Some of) the Road
> <http://electionlawblog.org/?p=66860>
> Posted on October 14, 2014 2:03 pm <http://electionlawblog.org/?p=66860>
> by Justin Levitt <http://electionlawblog.org/?author=4>
>
> In just a few hours
> <https://www.eventbrite.com/e/the-price-of-democracy-federal-election-commission-vice-chair-ann-ravel-registration-13163058061>,
> Prof. Nick Stephanopoulos, at Chicago, talks to FEC Vice Chair Ann Ravel,
> who’s apparently on a “listening tour” across (some of) the country.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66860&title=%28Some%20of%29%20the%20FEC%20On%20%28Some%20of%29%20the%20Road&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
> election commission <http://electionlawblog.org/?cat=24>
>      “This Ruling Could Put Texas Back In The Doghouse On Voting Law
> Changes” <http://electionlawblog.org/?p=66858>
> Posted on October 14, 2014 2:01 pm <http://electionlawblog.org/?p=66858>
> by Justin Levitt <http://electionlawblog.org/?author=4>
>
> TPM covers <http://talkingpointsmemo.com/dc/texas-voter-id-preclearance> the
> potential for bailing Texas back into federal preclearance
> <http://electionlawblog.org/?p=66595> under the Voting Rights Act, after
> a finding of intentional discrimination by the federal court reviewing the
> state’s new ID rule.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66858&title=%E2%80%9CThis%20Ruling%20Could%20Put%20Texas%20Back%20In%20The%20Doghouse%20On%20Voting%20Law%20Changes%E2%80%9D&description=>
>   Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
> <http://electionlawblog.org/?cat=9>, Voting Rights Act
> <http://electionlawblog.org/?cat=15>
>      “Supreme Court Was Right to Put Voter ID On Hold”
> <http://electionlawblog.org/?p=66856>
> Posted on October 14, 2014 2:00 pm <http://electionlawblog.org/?p=66856>
> by Justin Levitt <http://electionlawblog.org/?author=4>
>
> From the editorial board
> <http://www.greenbaypressgazette.com/story/opinion/editorials/2014/10/13/supreme-court-right-put-voter-hold/17225795/>
>  of the Green Bay Press-Gazette.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66856&title=%E2%80%9CSupreme%20Court%20Was%20Right%20to%20Put%20Voter%20ID%20On%20Hold%E2%80%9D&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, election
> law and constitutional law <http://electionlawblog.org/?cat=55>, Supreme
> Court <http://electionlawblog.org/?cat=29>, voter id
> <http://electionlawblog.org/?cat=9>
>      November Conference on Judicial Recusal
> <http://electionlawblog.org/?p=66854>
> Posted on October 14, 2014 1:59 pm <http://electionlawblog.org/?p=66854>
> by Justin Levitt <http://electionlawblog.org/?author=4>
>
> The NYU Journal of Legislation and Public Policy, the Brennan Center, and
> the ABA’s Center for Professional Responsibility are one month out from a great-looking
> symposium <http://www.nyujlpp.org/symposia/> on judicial recusal after
> *Caperton*.  Looks like a wonderful lineup, including academics,
> advocates, and a significant number of judges and justices.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66854&title=November%20Conference%20on%20Judicial%20Recusal&description=>
>   Posted in judicial elections <http://electionlawblog.org/?cat=19>
>      Convincing Virginia State Senator Puckett to Stick Around
> <http://electionlawblog.org/?p=66852>
> Posted on October 14, 2014 1:59 pm <http://electionlawblog.org/?p=66852>
> by Justin Levitt <http://electionlawblog.org/?author=4>
>
> The fallout continues
> <http://www.washingtonpost.com/local/virginia-politics/mark-warner-denies-offering-job-to-senators-daughter/2014/10/13/7d5fff5a-5303-11e4-809b-8cc0a295c773_story.html?hpid=z2>
>  for Virginia officials allegedly involved in discussions about
> persuading State Senator Puckett to put off resigning; when Puckett
> resigned, Republicans gained control of the Senate.  Now, Sen. Mark Warner
> has explained his conversations about potential jobs for Puckett’s daughter.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66852&title=Convincing%20Virginia%20State%20Senator%20Puckett%20to%20Stick%20Around&description=>
>   Posted in chicanery <http://electionlawblog.org/?cat=12>
>      Great New New York Election Resources
> <http://electionlawblog.org/?p=66850>
> Posted on October 14, 2014 1:57 pm <http://electionlawblog.org/?p=66850>
> by Justin Levitt <http://electionlawblog.org/?author=4>
>
> From Jim Gardner, Michael Halberstam, and Jeff Wice, and the Jaeckle
> Center for Law, Democracy and Governance at Buffalo Law School, two great
> new resources <http://www.buffalo.edu/news/releases/2014/10/017.html> for
> New York elections.  The first is New York Elections News
> <http://nyelectionsnews.wordpress.com/2014/10/09/todd-breitbart-analyzes-the-citizens-union-redistricting-report-calls-it-pure-fantasy/>,
> a blog covering what it sounds like.  It’s been spending a fair amount of
> time on New York’s proposed state constitutional amendment changing the
> redistricting process, including strong commentary by Todd Breitbart
> <http://nyelectionsnews.wordpress.com/2014/10/09/todd-breitbart-analyzes-the-citizens-union-redistricting-report-calls-it-pure-fantasy/>,
> a former NY Senate staff member and expert on the issue.
>
> The second is the New York State Democracy Clearinghouse, a collection of
> local redistricting maps, materials, and election data from New York
> state.  As someone who knows a little something about collecting
> redistricting information <http://redistricting.lls.edu/>, I can promise
> that this sort of endeavor is sorely needed.  I decided early on that I had
> to focus on state legislative and congressional redistricting; local
> redistricting is at least as important, but the volume of information made
> it not feasible for me to try to track nationwide. The Jaeckle Center’s
> clearinghouse promises to be a vital and exceedingly welcome resource for
> practitioners, researchers, and engaged New Yorkers.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66850&title=Great%20New%20New%20York%20Election%20Resources&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, election
> law biz <http://electionlawblog.org/?cat=51>, redistricting
> <http://electionlawblog.org/?cat=6>
>      Justice Alito’s Disturbing Statement in Wisconsin Voter ID Case
> <http://electionlawblog.org/?p=66784>
> Posted on October 14, 2014 9:00 am <http://electionlawblog.org/?p=66784>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> [Bumping to the top with a brief update.]
>
> 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.)
>
> UPDATE: If the Texas case ends up at the Supreme Court, it seems pretty
> clear from the Wisconsin case that there are at least three votes to allow
> Texas to use its ID law in this election.
>  [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>
>
> --
> Justin Levitt
> Professor of Law
> Loyola Law School | Los Angeles
> 919 Albany St.
> Los Angeles, CA  90015
> 213-736-7417justin.levitt at lls.edussrn.com/author=698321
>
>

-- 
Joshua A. Douglas
Robert G. Lawson & William H. Fortune Associate Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935
joshuadouglas at uky.edu
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