[EL] thoughts on Texas
Justin Levitt
levittj at lls.edu
Tue Oct 14 18:33:01 PDT 2014
Equality is valuable. But I think I just differ on _how_ valuable
(particularly when the inequality isn't legally mandated, but is the
result of pragmatic compliance on the ground that is always and
inevitably uneven). And I think the decision on how valuable ultimately
comes back to the merits (which is why I think the /Purcell/ principle
isn't quite as straightforward as "no-last-minute court orders
<http://electionlawblog.org/?p=66613>").
For me, the money word in Ned's post is "contestable." That's already a
recognition that the underlying merits matter. I take it that a
district court _should_ enjoin a law prohibiting all black voters from
voting because of their race (or all voters whose last names begin with
"E"), even if the order comes quite late in the game, despite the
possibility of confusion it may entail to retrain pollworkers. (I hate
that I have to write this, but no, I don't think that the Texas ID law
is the same as a law prohibiting all black voters from voting.) And I
agree that a district court normally _shouldn't_, at the last minute,
extend polling hours by an hour or two, in part because of the
possibility of confusion. The magnitude of the potential harm, the
nature of the potential legal violation, and yes, even the degree of
evidentiary and legal care taken by the judge issuing an order normally
subject to deference in evaluating the facts on the ground in issuing an
equitable injunction should all be weighed in the balance.
I'm not claiming that equality is never the right answer, or that the
possibility of confusion is never sufficient to stop a case. I think the
SCOTUS orders on OH, NC, and WI are probably all right. It's just that
the balance strikes me as different in Texas -- and I didn't hear enough
from the 5th Circuit convincing me that they'd thought about or
explained those differences.
--
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
On 10/14/2014 6:11 PM, Foley, Edward wrote:
> 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 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.
>
> Share
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66869&title=Analysis%3A%20Texas%20Voter%20ID%20Decision%3A%20To%20%23SCOTUS%20or%20Not%3F&description=>
> 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.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
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