[EL] thoughts on Texas

Tue Oct 14 19:51:25 PDT 2014

When deciding whether to grant an emergency stay, in addition to (1) the
likelihood of success on the merits, the court looks at (2) whether the
applicant will be irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.

In essence, the second, third, and fourth factors ask the court to weigh
the (irreparable) harms on each side, as well as the harm to the public.

In Texas, the harm to the state in not being able to enforce its voter ID
law is...having to wait another election to enforce its new law.  It's
unclear how that qualifies as an "irreparable" injury, at least in a
constitutional sense, especially as the state conducted its prior election
under the old law and no one thinks that election was unconstitutional.  I
take Ned's point to be that the injury comes from unequal treatment due to
poll worker confusion because of the last-minute differing court rulings.
Of course, as Justin points out, unequal treatment will likely occur either
way.  But even assuming last-minute rulings *might* create confusion and
unequal treatment, that is still speculative.  We don't know for sure that
poll workers will not be able to respond adequately and administer the
election under the then-prevailing rule on Election Day.

On the other hand, issuance of the stay here will definitely "irreparably
injure" some voters who will not be able to vote because they lack an ID.
That's a constitutional harm with no remedy after the election (they have
already lost the ability to vote), and one that is not speculative because
we know for a fact that a certain percentage of Texas voters do not have a
qualifying ID and cannot obtain one before Election Day.

So, when a court has ruled (in painstaking detail) that a new election
practice will (definitely) deprive someone of their constitutional right to
vote on an arbitrary or invidious basis, an appellate court reviewing an
emergency stay application will have to balance that definite
constitutional harm to voters with the speculative harm to the state
stemming from unequal application due to poll worker confusion.  I think
the same balance exists with respect to Ned's literacy test example,
meaning that the equities would favor enjoining that law.

This is not to suggest that, for instance, a court must extend the polling
time by an hour or two just to ensure more people can vote when an issue
arises.  In that case, the constitutional harm to individual voters is
speculative (they could have voted earlier or waited in line) while the
inequities for the state's administration of the election is more definite
(unequal opportunities to vote across districts).  But when a court holds
that a law will *actually* deprive people of their constitutional right to
vote, then, in my view, voter access should lead the analysis
<http://talkingpointsmemo.com/cafe/supreme-court-voter-rulings-election>.

On Tue, Oct 14, 2014 at 10:16 PM, Foley, Edward <foley.33 at osu.edu> wrote:

>  Let’s assume that the facts would show that in low-income neighborhoods
> the restrictive ID rule would be enforced, but that in more affluent
> neighborhoods it wouldn’t be.  To my mind, that’s a constitutionally
> problematic situation under *League of Women Voters v. Ohio* and other
> precedents—potentially more constitutionally problematic that the
> restrictive ID rule uniformly enforced (just for one election, pending the
> resolution of the litigation) in low-income and more affluent neighborhoods
> alike.  Given those (assumed) facts, they would support the Fifth Circuit’s
> balance-of-equities reasoning: the risk of confusion may cause greater
> difficulties in poll worker re-training in lower income neighborhoods.
>
>  In response to Justin, I think the more relevant hypothetical to
> consider is this: a new literacy test as a prerequisite for voting, adopted
> in 1961 and taking effect in 1962, and a federal court lawsuit filed in
> 1963 to challenge it on Fifteenth Amendment grounds as motivated by
> intentional racial discrimination.  Then, in October of 1964, the federal
> court rules for the plaintiffs that the literacy test does violate the
> Fifteenth Amendment.  Even if the district court is correct in this ruling,
> I can see the Purcell argument (reflected in the remedial portion of
> Reynolds v. Sims) that, notwithstanding the merits, it’s too late to
> implement an injunction of the literacy test for the November 1964
> election.  The district court either should have managed its docket to be
> enable to issue an injunction earlier in 1964, or it needs to wait until
> after the November 1964 election before enjoining the unconstitutional
> literacy test.  I’m open to arguments that I’m wrong about this
> hypothetical, based on the law of equity as it stood in 1964.  But I think
> this hypothetical is relevant for considering whether the current Texas
> case is really different from the OH, NC & WI trilogy for purposes of
> Purcell.  I also don’t think it helps analyzing this literacy test
> hypothetical to say that one isn’t, or shouldn’t be, very much concerned
> about differential enforcement of the literacy test in the November 1964 as
> a result of poll worker confusion that might occur as a result of an
> October 1964 order enjoining enforcement of the literacy test. Rather, if
> there is indeed a significant risk of uneven enforcement of the literacy
> test (especially the greater likelihood of its enforcement in lower income
> neighborhoods because of poll worker confusion, despite the October 1964
> federal court injunction), that would be a relevant consideration in
> support of waiting until after the November 1964 before blocking
> enforcement of the unconstitutional literacy test.
>
>
>
> [image: 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: Justin Levitt <levittj at lls.edu>
> Date: Tuesday, October 14, 2014 at 9:33 PM
> To: Ned Foley <foley.33 at osu.edu>, Rick Hasen <rhasen at law.uci.edu>, "
> law-election at uci.edu" <law-election at uci.edu>
> Subject: Re: [EL] thoughts on Texas
>
>   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  90015213-736-7417justin.levitt at lls.edussrn.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).
>
>
>
> [image: 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>
> Date: Tuesday, October 14, 2014 at 5:52 PM
> To: "law-election at uci.edu" <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.
>  [image: Share]
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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>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
>
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-- 
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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