[EL] Provisional Ballots and Purcell in the Texas ID case?

[Foley, Edward]

I’m curious whether anyone on this list can illuminate an aspect of the emergency motions now pending before SCOTUS in the Texas voter ID case:

I would have thought that one factor relevant to the Purcell-based balancing of the equities (not necessarily dispositive, but nonetheless a relevant factor) would be the potential role that provisional ballots could play to prevent disenfranchisement of voters without a form of ID required by the new stricter ID law, now ruled intentionally discriminatory by the district court.  On the assumption that the law is indeed intentional racial discrimination, clearly it would have been best to permanently enjoin the law well in advance of this November’s election, so no Purcell-based considerations would be relevant, and all potentially affected voters could cast a regular rather than a provisional ballot even if they did not have the form of ID required by the new stricter law.  But given that the district court’s calendaring of the trial in the case did not enable that “best case scenario” outcome, it would seem that the relevant Purcell-based inquiry would be, what now for this current election?  And here’s where I was wondering what role provisional ballots might play.  I would have thought that (at least for voters casting ballots on Election Day itself) even if the Fifth Circuit stay is in effect, a voter without the required ID would be entitled under HAVA to cast a provisional ballot, and it would be a serious violation of federal law not to provide this voter with a provisional ballot.  Then, given the district court’s ruling that the new Texas ID law violates the Voting Rights Act and is unconstitutional, it would seem to me that under the Supremacy Clause, that the provisional ballot is entitled to be counted, and it would violate federal law to disqualify it for the sole reason that the voter did not comply with the new ID law now adjudicated to be contrary to federal law.  If so, then the voter lacking the required ID would be protected from outright disenfranchisement.  (Again, it would have been preferable to have an earlier injunction that would have given this voter a regular ballot in the first place, but given the unavailability of that option, is it better under Purcell to let the invalid voter ID law to be enforced on Election Day with the safety net of provisional ballots available, or is it better to let the district court’s October injunction stand?)

But then I read this sentence in the SG’s emergency motion to vacate the Fifth Circuit stay (page 38-39):  “the voters most affected by the law inevitably will be turned away from their local polling places when they attempt to vote in coming weeks, just as several individual plaintiffs were in this case when they tried to vote in recent elections.”

This sentence implies that voters will not receive a provisional ballot, but will be “turned away” instead.   If so, in my mind that would affect the balancing of the equities considerably, but I was confused about why that would be so given HAVA.  One possible thought, but this is a conjecture, is that the SG’s statement is intended to apply only to early voting, not Election Day voting.  But given a factual uncertainty over the role that provisional ballots potentially could play, I thought it a point worthy of clarification.

Thanks, Ned


[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<mailto:levittj at lls.edu>>
Date: Thursday, October 16, 2014 at 5:26 AM
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] ELB News and Commentary 10/16/14

New Hampshire Supreme Court Finds Push-Polling Law Preempted<http://electionlawblog.org/?p=66976>
Posted on October 16, 2014 2:25 am<http://electionlawblog.org/?p=66976> by Justin Levitt<http://electionlawblog.org/?author=4>

A New Hampshire state law requires disclosure of the candidate supported or opposed by a “push poll.”  Today, the New Hampshire Supreme Court held<http://www.nashuatelegraph.com/csp/cms/sites/Telegraph/dt.common.streams.StreamServer.cls?STREAMOID=szVRRulhARTzltonYqDc9oe2GzjtRcJecdWQQGgf_fe6NVP1tpFnob$kndF19Ps$4Aw$6wU9GSUcqtd9hs3TFeZCn0vq69IZViKeqDZhqNLziaXiKG0K_ms4C2keQo54&CONTENTTYPE=application/pdf&CONTENTDISPOSITION=push%20poll%20ruling.pdf> that to the extent this law applies to federal candidates, it is preempted by federal campaign finance laws, which provide the exclusive provisions for disclosure with respect to federal election activities.

The Nashua Telegraph has more<http://www.nashuatelegraph.com/news/1049000-469/state-supreme-court-says-push-polls-for.html>.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66976&title=New%20Hampshire%20Supreme%20Court%20Finds%20Push-Polling%20Law%20Preempted&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Supreme Court Leaves Its Mark on the Midterms”<http://electionlawblog.org/?p=66974>
Posted on October 16, 2014 2:24 am<http://electionlawblog.org/?p=66974> by Justin Levitt<http://electionlawblog.org/?author=4>

Josh Gerstein<http://www.politico.com/story/2014/10/supreme-court-leaves-its-mark-on-the-midterms-111894.html> rounds up the recent action at SCOTUS for Politico.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66974&title=%E2%80%9CSupreme%20Court%20Leaves%20Its%20Mark%20on%20the%20Midterms%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>
“Santa Clara County: Print Shop Flub Compounds Ballot Error in Two School Board Races”<http://electionlawblog.org/?p=66972>
Posted on October 16, 2014 2:24 am<http://electionlawblog.org/?p=66972> by Justin Levitt<http://electionlawblog.org/?author=4>

If at first you don’t succeed, maybe third time’s the charm.  A printing error on sample ballots<http://www.mercurynews.com/education/ci_26728346/santa-clara-county-print-shop-flub-compounds-ballot> was reproduced on real absentee ballots in Santa Clara County, CA.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66972&title=%E2%80%9CSanta%20Clara%20County%3A%20Print%20Shop%20Flub%20Compounds%20Ballot%20Error%20in%20Two%20School%20Board%20Races%E2%80%9D&description=>
Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election administration<http://electionlawblog.org/?cat=18>
News Roundup on the Arkansas ID Decision<http://electionlawblog.org/?p=66970>
Posted on October 16, 2014 2:23 am<http://electionlawblog.org/?p=66970> by Justin Levitt<http://electionlawblog.org/?author=4>

>From the AP<http://abcnews.go.com/Politics/wireStory/arkansas-high-court-strikes-voter-id-law-26224698>, Arkansas News<http://arkansasnews.com/news/arkansas/state-supreme-court-strikes-down-voter-id-law>, LA Times<http://www.latimes.com/nation/nationnow/la-na-nn-arkansas-voter-id-20141015-story.html>, MSNBC<http://www.msnbc.com/msnbc/arkansas-supreme-court-strikes-down-voter-id-law>, NY Times<http://www.nytimes.com/2014/10/16/us/arkansas-supreme-court-strikes-down-voter-id-law-saying-it-exceeds-state-constitution.html>, Reuters<http://www.chicagotribune.com/news/nationworld/chi-arkansas-voter-id-20141015-story.html>, USA Today<http://www.usatoday.com/story/news/nation/2014/10/15/arkansas-voter-identification-ruled-unconstitutional/17325659/>, and the WaPo<http://www.washingtonpost.com/politics/arkansas-photo-id-requirement-for-voting-is-struck-down-by-states-highest-court/2014/10/15/70b3812e-54ab-11e4-809b-8cc0a295c773_story.html>.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66970&title=News%20Roundup%20on%20the%20Arkansas%20ID%20Decision&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>
Not All Democrats Love Maryland’s Maps<http://electionlawblog.org/?p=66968>
Posted on October 16, 2014 2:23 am<http://electionlawblog.org/?p=66968> by Justin Levitt<http://electionlawblog.org/?author=4>

Disgruntled legislators protest<http://somd.com/news/headlines/2014/18687.shtml> the dilution of minority populations.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66968&title=Not%20All%20Democrats%20Love%20Maryland%E2%80%99s%20Maps&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6>
“Opening a Pandora’s Box on Campaign Coordination”<http://electionlawblog.org/?p=66966>
Posted on October 16, 2014 2:23 am<http://electionlawblog.org/?p=66966> by Justin Levitt<http://electionlawblog.org/?author=4>

MSNBC reviews<http://www.msnbc.com/rachel-maddow-show/opening-pandoras-box-campaign-coordination> the latest Randa ruling<http://electionlawblog.org/?p=66874>.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66966&title=%E2%80%9COpening%20a%20Pandora%E2%80%99s%20Box%20on%20Campaign%20Coordination%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Defending Political Free Speech”<http://electionlawblog.org/?p=66964>
Posted on October 16, 2014 2:22 am<http://electionlawblog.org/?p=66964> by Justin Levitt<http://electionlawblog.org/?author=4>

The Washington Times has a slightly different take<http://www.washingtontimes.com/news/2014/oct/15/editorial-defending-free-speech> on the Randa coordination ruling<http://electionlawblog.org/?p=66874> – and ties it to the Citizens United ruling on disclosure<http://electionlawblog.org/?p=66911>.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66964&title=%E2%80%9CDefending%20Political%20Free%20Speech%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Senate Races: Where Outside Groups Spend Their Money”<http://electionlawblog.org/?p=66962>
Posted on October 16, 2014 2:22 am<http://electionlawblog.org/?p=66962> by Justin Levitt<http://electionlawblog.org/?author=4>

The Upshot at the Times breaks down<http://www.nytimes.com/2014/10/16/upshot/senate-races-where-outside-groups-spend-their-money.html?abt=0002&abg=1> the allocations of independent spending to various media in this year’s Senate races.  At least, the spending we know about<http://electionlawblog.org/?p=61795> (particularly in non-broadcast venues, there may be spending not reported to the FEC).

Sunlight’s also got a new summary<http://sunlightfoundation.com/blog/2014/10/15/outside-spending-nears-500-million-in-election-2014-sunlights-new-overview-pages-break-it-down/> of the FEC data on independent spending, for Senate races and beyond.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66962&title=%E2%80%9CSenate%20Races%3A%20Where%20Outside%20Groups%20Spend%20Their%20Money%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
New Poll on Restoration of Voting Rights for Nonviolent Individuals with Convictions<http://electionlawblog.org/?p=66960>
Posted on October 16, 2014 2:21 am<http://electionlawblog.org/?p=66960> by Justin Levitt<http://electionlawblog.org/?author=4>

The new poll from libertarian Reason magazine<http://reason.com/blog/2014/10/15/73-percent-of-americans-favor-restoring> says that “73 percent of Americans favor restoring voting rights to nonviolent drug offenders who have served their sentences, with strong majorities among Democrats, Independents, and Republicans.”  And yes, they polled beyond the Rand Paul campaign.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66960&title=New%20Poll%20on%20Restoration%20of%20Voting%20Rights%20for%20Nonviolent%20Individuals%20with%20Convictions&description=>
Posted in felon voting<http://electionlawblog.org/?cat=66>
“A Program in Legislation”<http://electionlawblog.org/?p=66958>
Posted on October 16, 2014 2:21 am<http://electionlawblog.org/?p=66958> by Justin Levitt<http://electionlawblog.org/?author=4>

Dakota S. Rudesill, Christopher J. Walker, and Daniel P. Tokaji have posted this paper<http://ssrn.com/abstract=2509477> on SSRN:

This Essay urges that Legislation be conceived of not just as a single course, but as a set of curricular and extracurricular offerings that collectively constitute an integrated program of instruction. The three of us teach at The Ohio State University’s Moritz College of Law, which may serve as a model of such a program. Since 1995, Moritz has required Legislation as a part of the first-year curriculum. We also have a variety of upper-level offerings and extracurricular activities that help students develop a practical understanding of the legislative process. This Essay makes the case for an integrated program of instruction, including both an introductory course in the first year and experiential learning opportunities in the second and third years.

I look forward to reading this.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66958&title=%E2%80%9CA%20Program%20in%20Legislation%E2%80%9D&description=>
Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, pedagogy<http://electionlawblog.org/?cat=23>
Ifill v. von Spakovsky<http://electionlawblog.org/?p=66956>
Posted on October 16, 2014 2:20 am<http://electionlawblog.org/?p=66956> by Justin Levitt<http://electionlawblog.org/?author=4>

National Press Club event<http://www.press.org/news-multimedia/news/changes-laws-threat-or-boost-voter-turnout-mid-term-elections> / rumble at 10am on Thursday, on recent legal changes and the midterm elections.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66956&title=Ifill%20v.%20von%20Spakovsky&description=>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>, The Voting Wars<http://electionlawblog.org/?cat=60>
DOJ Files #SCOTUS Brief in Texas Voter ID Case<http://electionlawblog.org/?p=66954>
Posted on October 16, 2014 1:02 am<http://electionlawblog.org/?p=66954> by Rick Hasen<http://electionlawblog.org/?author=3>

Lyle<http://www.scotusblog.com/2014/10/u-s-others-seek-to-block-texas-voter-id-law/> at SCOTUSBlog:

Saying that the spread across the country of new laws to restrict voting rights will create new tests of constitutionality for the Supreme Court, the Obama administration on Wednesday evening asked the Justices in the meantime to bar Texas from using its strict new voter ID law.  The government’s application<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A404-US-stay-applic-Tx-voter-ID-10-15-14.pdf> was one of three (the others are here<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/TexasvoterIDVeaseystayapplic10-15-14.zip> and here<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14A402TexasNAACPstayapplic.10-15-14.pdf>) seeking delay of the new law — a delay that clearly would last through this year’s election, including early voting that starts Monday in Texas.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66954&title=DOJ%20Files%20%23SCOTUS%20Brief%20in%20Texas%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>
Breaking: Arkansas Supreme Court Strikes State Voter ID Law<http://electionlawblog.org/?p=66951>
Posted on October 15, 2014 2:48 pm<http://electionlawblog.org/?p=66951> by Rick Hasen<http://electionlawblog.org/?author=3>

The opinion is here<http://posting.arktimes.com/media/pdf/voter_id_opinion.pdf>. The rulings are only on state law grounds. The majority found that the ID requirement added a new voter “qualification” in violation of the state constitution. The concurrence found that the measure was not properly passed by the state legislature.

There are no obvious federal constitutional issues in this case, so the chances of U.S. Supreme Court review of this case are quite small.

Big win for opponents of voter id.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66951&title=Breaking%3A%20Arkansas%20Supreme%20Court%20Strikes%20State%20Voter%20ID%20Law&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>
Justice Scalia Requests Texas Response in Voter ID Case to SCOTUS<http://electionlawblog.org/?p=66949>
Posted on October 15, 2014 2:22 pm<http://electionlawblog.org/?p=66949> by Rick Hasen<http://electionlawblog.org/?author=3>

Due 5 pm Eastern Thursday, according to Tim Eaton<https://twitter.com/TimEaton30/status/522495659438772224>.

[Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D66949&title=Justice%20Scalia%20Requests%20Texas%20Response%20in%20Voter%20ID%20Case%20to%20SCOTUS&description=>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>, 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
213-736-7417
justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>
ssrn.com/author=698321
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141016/41602bb6/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: 6FCDA4F3-7ECC-4564-8F0C-C8DBFE389194[10].png
Type: image/png
Size: 5675 bytes
Desc: 6FCDA4F3-7ECC-4564-8F0C-C8DBFE389194[10].png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141016/41602bb6/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: share_save_171_16.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20141016/41602bb6/attachment-0001.png>