[EL] thoughts on Texas

Tue Oct 14 18:11:02 PDT 2014

FWIW, I think Justin and Rick under-appreciate the value of equality in the context of the Purcell-based balancing of the equities in the Fifth Circuit case.  (Unlike Justin, I don’t think it’s a “foolish consistency” to insist that all comply with a contestable ID law pending resolution of the litigation, rather than endorsing a situation in which some are required to comply while other similarly situated voters are not).

This issue arises in the extension-of-polling-hours context.  While  sometimes it might be desirable to extend the polling hours for everyone by an extra hour or two, the worst option would be to extend the polling hours for only some, but not others, of similarly situated voters. Better to force all similarly situated voters to abide by the shorter hours, even if it’s draconian, then to selectively extent the hours for just some of those similarly affected.

I take Rick’s point to be that there is a risk of unequal treatment either way in the context of the confusion potentially arising from poll workers not knowing whether the rule in effect is the Texas law, or the district court’s injunction, or the Fifth Circuit’s stay of the injunction (thereby reverting to the Texas law).  I agree that assessment of the risk of unequal treatment either way—magnitude, likelihood, etc.—should be part of the Purcell-based balancing of the equities.  But I’m not sure I see why there is as much risk of unequal treatment (in terms of differential enforcement of the statute) if the district court’s injunction is stayed  as if it is not stayed. It seems plausible to say that a last-minute injunction is more potentially confusing to poll workers, thereby more likely leading to unequal enforcement of the law, than a last-minute reinstatement of an enacted law that has been enjoined only for a very brief period (before the stay application was able to be acted upon).

For these reasons, I think the Texas case, as evidenced by the concurrence as well as the majority, presents a fairly straightforward application of Purcell, regardless of the ultimate decision on the merits.  The whole point of Purcell is that even ultimately winning voting rights cases shouldn’t get the benefit of interim relief when that interim relief comes too close to the next upcoming election (and this seems especially true when there was no obstacle to awarding interim relief much more ahead of time, in order to avoid disruption).

[The Ohio State University]
Edward B. Foley
Director, Election Law @ Moritz
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law
Moritz College of Law
614-292-4288

From: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: Tuesday, October 14, 2014 at 5:52 PM
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] thoughts on Texas

Analysis: Texas Voter ID Decision: To #SCOTUS or Not?<http://electionlawblog.org/?p=66869>
Posted on October 14, 2014 2:51 pm<http://electionlawblog.org/?p=66869> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fifth 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. Although this 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). Justin makes 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 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>

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Rick Hasen
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UC Irvine School of Law
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