[EL] more on WI voter id/7th Circuit
Rick Hasen
rhasen at law.uci.edu
Fri Sep 12 10:06:59 PDT 2014
Very Bad Idea to Implement WI Voter ID Just Before the Election
<http://electionlawblog.org/?p=65382>
Posted onSeptember 12, 2014 10:05 am
<http://electionlawblog.org/?p=65382>byRick Hasen
<http://electionlawblog.org/?author=3>
I've explained why weshouldn't be surprised
<http://electionlawblog.org/?p=65380> if the 7th Circuit reverse the
district court in the Wisconsin voter id case and rejects both the
constitutional and Voting Rights Act section 2 claims brought against it.
But it sounds like the judgesmay be ready to orde
<http://www.jsonline.com/news/appeals-panel-questions-why-voter-id-shouldnt-be-in-place-nov-4-b99350157z1-274904111.html>r
(within days, I'd expect) use of the voter id in this election---which
has been on hold thanks to the district court order and subject to a
stay. WI had asked to lift the stay, and the 7th Circuit put thatruling
on hold<http://electionlawblog.org/?p=64650>pending today's hearing.
Making changes in election rules as voting gets underway (think of
overseas and military voters, for whom the process starts 45 days before
election) is likely to create a great deal of confusion and uncertainty.
It is hard enough to administer an election with set rules---much less
to change the rules midstream.
Here's what the Supreme Court said inPurcell v. Gonzalez
<cid:part7.07070906.04060209 at law.uci.edu>, when the 9th Circuit put
Arizona's voter id law on hold after a district court let it go into
effect pending a trial on the merits:
Faced with an application to enjoin operation of
voter identification procedures just weeks before an election,
the Court of Appeals was required to weigh, in addition to the harms
attendant upon issuance or nonissuance of an injunction,
considerations specific to election cases and its own institutional
procedures. Court orders affecting elections, especially conflicting
orders, can themselves result in voter confusion and consequent
incentive to remain away from the polls. As an election draws
closer, that risk will increase.
That of course was the mirror image of today (district court said the id
law was ok, appellate cour said no at the last minute). But the argument
is more compelling going in this direction, where there will be a flood
of people needing id for this election AND training of personnel and
others for how to implement the new id laws. This is untested and
Iagree with the ACLU
<https://twitter.com/news3jessica/status/510472039514537984>that
implementing it now would be a disaster.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
Don't Be Surprised 7th Circuit Skeptical of Voting Rights Claim in
Wisconsin Voter ID Case <http://electionlawblog.org/?p=65380>
Posted onSeptember 12, 2014 9:26 am
<http://electionlawblog.org/?p=65380>byRick Hasen
<http://electionlawblog.org/?author=3>
Here <http://electionlawblog.org/?p=60972>is my analysis of the district
court order.
3. Both the constitutional law and VRA section 2 claims are
controversial. On the con law point, the judge purports to apply
the "Anderson-Burdick" balancing test that the Supreme Court applied
in upholding Indiana's voter id law in the /Crawford/ case. The
judge purports to apply /Crawford/, but reaches a different result.
It is not clear that this is a fair application of that test--which
seems to suggest at most that the law be upheld as to most voters
but create an "as applied" exemption for a specific class of voters.
The judge said that this was not practical in this case given the
large number of Wisconsin voters who lack id. It is not clear that
the appellate courts will agree.
4. On the VRA issue, this is the first full ruling on how to
adjudicate voter id vote denial cases under section 2. The key test
appears on page 52 of the pdf: "Based on the text, then, I conclude
that Section 2 protects against a voting practice that creates a
barrier to voting that is more likely to appear in the path of a
voter if that voter is a member of a minority group than if he or
she is not. The presence of a barrier that has this kind of
disproportionate impact prevents the political process from being
'equally open' to all and results in members of the minority group
having 'less opportunity' to participate in the political process
and to elect representatives of their choice." The judge also
approaches the causation/results question in a straightforward way.
It is not clear whether the appellate courts will agree or not agree
with this approach, which would seem to put a number of electoral
processes which burden poor and minority voters up for possible VRA
liability.
In sum, this is a huge victory for voter id opponents. But time will
tell if this ruling survives.
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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.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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