[EL] Breaking: Wisconsin voter id case
Rick Hasen
rhasen at law.uci.edu
Mon Mar 23 07:33:16 PDT 2015
Blessing in Disguise? The Supreme Court’s Refusal to Hear Wisconsin
Voter ID Case <http://electionlawblog.org/?p=71186>
Posted onMarch 23, 2015 7:32 am
<http://electionlawblog.org/?p=71186>byRick Hasen
<http://electionlawblog.org/?author=3>
This morning the Supreme Court without commentrefused to take up
<http://www.supremecourt.gov/orders/courtorders/032315zor_b97d.pdf> Frank v.
Walker, the Wisconsin voter id case. Taking the case to the Supreme
Court divided the civil rights community. As I notedlast week
<http://electionlawblog.org/?p=71116>, those who hoped the Supreme Court
would hear the case were betting that Chief Justice Roberts or Justice
Kennedy were going to have the same kind of epiphany that Judge Posner
of the 7th Circuit had. Judge Posner had voted to uphold Indiana’s voter
id law back in the mid-2000s when it was challenged. Judge Posner saw
the requirement as no big deal. But by last year, Judge Posner was
writing that such laws have now been generally recognized as a means of
suppressing likely Democratic votes than as a means of fraud prevention.
(The evidence that such laws deter any significant amount of
impersonation voter fraud isthin indeed
<http://www.amazon.com/The-Voting-Wars-Election-Meltdown/dp/0300198248>.) But
it is not clear that Kennedy and Roberts, the conservative Justices
likely in the middle of the Court on this issue have had a similar
religious conversion on the issue. The four liberals could have forced a
hearing in this case (by voting to grant cert) but they must not have
been confident of the religious conversion either. Similarly, DOJ
hasdone very littl <http://electionlawblog.org/?p=71116>e to support
this case. They are betting on Texas (and to some extent North
Carolina), hoping those cases will be better vehicles for getting voter
id laws struck down. But relying on Texas to ultimately help Wisconsin
is risky. CIn the Texas voter id case, now pending before the 5th
Circuit, we have a holding that Texas’s passage of the voter id law was
the product of intentional racial discrimination. That’s a finding which
should be very hard to reverse on appeal. it provides an easier
constitutional path for the Supreme Court to strike down Texas’s voter
id law. The upside of that would be a Supreme Court decision striking
down a voter id law on constitutional grounds. The downside is that
other cases, like Wisconsin, do not involve intentional discrimination
and so a Texas holding might not help very much outside of Texas. It
would be an outer bound of what’s allowed and forbidden.
Had the Court agreed to hear the Wisconsin case, it is possible it would
have read Section 2 of the Voting Rights Act even more narrowly in cases
of vote denial, as well as make bad law on the scope of the equal
protection clause. In this way, the Court’s refusal to hear Wisconsin’s
voter id case may be a blessing in disguise. As I’ve long argued, the
best way for liberals to cut their losses is tostay out of the Supreme
Court<http://www.slate.com/articles/news_and_politics/jurisprudence/2009/09/how_liberals_can_win_by_losing_at_the_roberts_court.html>when
possible. Things could have been worse if the Court took Wisconsin than
if they didn’t. And if you trust Justice Ginsburg, trust her her in not
voting to grant cert in this case.
There’s an immediate question: what about the use of voter ID in
Wisconsin in the April 7 election? ACLU is already
moving<http://electionlawblog.org/%20https://www.aclu.org/voting-rights/aclu-moves-block-wisconsin-voter-id-law-following-supreme-court-action>to
block its use so close to the election. That seems like a motion likely
to succeed. Remember the Supreme Court blocked Wisconsin’s voter id law
in the fall from going into immediate effect, likely because there was
not enough time for a rollout of the law. The Court apparently applied
what I’ve been calling thePurcell principle
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>: the idea
that you don’t change election rules in the period just before the
election. So while we likely won’t see the id in place in an election
where early voting is already underway. It’s coming before the 2016
elections.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,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>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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