[EL] Breaking: Wisconsin voter id case

Mon Mar 23 08:15:21 PDT 2015

Rick,

The Court could have held the Wisconsin case to await the NC and TX cases,
couldn't it? If so, what does the denial of cert today tell us how the
latter cases will fare?

Ed

Edward Still
Edward Still Law Firm LLC
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still at votelaw.com
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On Mon, Mar 23, 2015 at 9:33 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>     Blessing in Disguise? The Supreme Court’s Refusal to Hear Wisconsin
> Voter ID Case <http://electionlawblog.org/?p=71186>
> Posted on March 23, 2015 7:32 am <http://electionlawblog.org/?p=71186> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> This morning the Supreme Court without comment refused 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 noted last 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 is
>  thin 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 has done
> 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 to stay 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 the Purcell 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.
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71186&title=A%20Blessing%20in%20Disguise%3F%20The%20Supreme%20Court%E2%80%99s%20Refusal%20to%20Hear%20Wisconsin%20Voter%20ID%20Case&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>, 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.edu
> hhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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