[EL] Breaking: Wisconsin voter id case
Justin Levitt
levittj at lls.edu
Mon Mar 23 09:40:51 PDT 2015
It's worth remembering that the Wisconsin ID case changed on its way
through the courts.
The original complaint in /Frank v. Walker/ was a class action, with
several proposed classes narrowly focused on relief for the particular
individuals who would have most difficulty getting the ID in question.
The district court granted an injunction against any enforcement of the
law, period, and so never ruled on the merits of the motion for class
certification (in light of its facial ruling, the court found the motion
to be moot). Likewise, the court of appeals (and presumably SCOTUS)
considered the case as a facial challenge, not as the more narrowly
focused challenge that the plaintiffs originally brought.
There's a second way in which the case changed as well: the state IDs
got somewhat easier to get. In the frenzy of the runup to the 2014
elections, it was easy to overlook the Wisconsin Supreme Court's
decision in the NAACP v. Walker case in the state court system. Aside
from the factual inaccuracies in that opinion (photo ID is not, for
example, actually a requirement to board a commercially operated airline
flight
<http://summaryjudgments.lls.edu/2012/10/company-at-30000-feet-plane-travel-and_2161.html>,
no matter how many times judges claim without citation that it is), the
court found that any voter without the underlying documents to obtain a
state ID card, who would have to pay for those documents to get them,
must be given a photo ID without needing to procure the underlying
documents. That doesn't completely alleviate the hassle of getting a
card for those who don't already have one ... but it does make the
hurdle a bit lower. The progress of the Wisconsin litigation mirrored
litigation-related "clarifications" of the South Carolina ID rule that
also made that state's ID card incrementally easier to get.
--
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
ssrn.com/author=698321
On 3/23/2015 8:20 AM, Rick Hasen wrote:
> North Carolina cert petition does not involve voter id. Texas case
> still being briefed in 5th Circuit.
>
> Rick Hasen
>
> Sent from my iPhone. Please excuse typos.
>
> On Mar 23, 2015, at 8:17 AM, Edward Still <still at votelaw.com
> <mailto:still at votelaw.com>> wrote:
>
>> 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
>> 429 Green Springs Hwy, STE 161-304
>> Birmingham AL 35209
>> 205-320-2882
>> still at votelaw.com <mailto:still at votelaw.com>
>> www.votelaw.com/blog <http://www.votelaw.com/blog>
>> www.edwardstill.com <http://www.edwardstill.com>
>> www.linkedin.com/in/edwardstill <http://www.linkedin.com/edwardstill>
>>
>>
>>
>> On Mon, Mar 23, 2015 at 9:33 AM, Rick Hasen <rhasen at law.uci.edu
>> <mailto: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 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.
>>
>> <share_save_171_16.png>
>> <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 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 <tel:949.824.3072> - office
>> 949.824.0495 <tel:949.824.0495> - fax
>> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>> hhttp://www.law.uci.edu/faculty/full-time/hasen/ <http://www.law.uci.edu/faculty/full-time/hasen/>
>> http://electionlawblog.org
>>
>>
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