Late on Thursday, the Supreme Court reversed a decision of the 7th Circuit Court of Appeals from September and issued a stay barring Wisconsin’s Voter ID law from going into effect until the matter is fully resolved on appeal, meaning that the law will not be enforced during the 2014 midterm elections:
The Supreme Court Thursday night blocked Wisconsin from implementing a controversial voter ID law in next month’s election.
The justices vacated a decision by a panel of the appeals court in Chicago that ruled the law could go ahead. Three justices — Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented.
(…)
The Wisconsin voter ID law has been the subject of controversy and court challenges since it was first passed in 2011. Federal and state courts had enjoined its use until this year.
But challengers said that nearly 10 percent of Wisconsin voters did not have the photo ID the law required. The appeals court panel said it was still possible for those voters to get the necessary identification in time for the election.The Supreme Court majority gave no reason for its decision. But one cause of concern was that some mail-in ballots had already been cast, and for them to count, the voter would have to show up later to produce the proper identification.
Alito mentioned that in dissenting.
“There is a colorable basis for the court’s decision due to the proximity of the upcoming general election,” he wrote. “It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted.”
But he and the other dissenters said the Supreme Court’s precedents dictated that stays of appeal court decisions not be granted unless the lower court “clearly and demonstrably erred in its application of accepted standards.” The panel of the U.S. Court of Appeals for the 7th Circuit had not done so, he said.
Attorney General Eric H. Holder Jr., whose department intervened on behalf of challengers of the laws, praised both of the courts’ rulings.
This move comes just a few days after the 7th Circuit, in a separate ruling, upheld the Wisconsin law as Constitutional, reversing the ruling of a Federal District Court Judge early this year that had struck the law down based in large part on its allegedly disproportionate impact on minorities and the poor. The Supreme Court’s action, however, is not directed at that ruling, but is instead directed at the more immediately contentious issue of whether or not the law would be allowed to go into effect for the upcoming election even though it remains on appeal and there is some indication that jurisdictions in the state may not be ready for it. After the 7th Circuit panel agreed to lift the stay in September, there was no small degree of contentious pleading by both sides trying to persuade the 7th Circuit as a whole to review the matter en banc, but that effort failed to succeed so the opponents of the law took the matter to the Supreme Court. Obviously, that effort has succeeded.
Rick Hasen comments on the outcome:
That same Purcell principle applies even more strongly to Wisconsin. That is, even if the Supreme Court ultimately would say that Wisconsin’s law is constitutional and does not violate the Voting Rights Act, this is a very strong case under Purcell. (As I explained, the key question is whether Wisconsin has a strong enough state interest in its sovereignty over elections to implement a voter id law very quickly before the election, when there has been no preparation and when the undisputed evidence shows that, by the state’s own account, up to 10 percent of the state’s voters could be disenfranchised (a position the 7th Circuit en banc dissenters called shocking).
The Purcell principle that Hasan refers to comes from a 2006 case called Purcell v. Gonzalez in which the Supreme Court reversed the Ninth Circuit and granted a stay in the enforcement of an Arizona law dealing with Voter ID and other related issue. As in this case, the ruling was released just days before Election Day and the Supreme Court strongly rebuked the Ninth Circuit, and the District Court Judge, and Justice Stevens argued in a brief concurrence that courts should be careful in allowing major changes to election laws to go into effect while appeals were still pending. In this case, opponents of the law contended that allowing the law to go into effect would be chaotic due to the fact that many counties in the state were reporting that they weren’t ready to enforce the law at the polls on Election Day and the fact that more than ten thousand absentee ballots had already been mailed out before the 7th Circuit lifted the say in September. If the law was fully enforced, those absentee ballots likely would have been considered uncountable because the procedures set forth under the Voter ID law were not followed. While the Court doesn’t directly address Purcell in the order that was issued in this case, and indeed doesn’t really go into much detail for the reasoning behind its positioning, the language of the dissent entered by Justice Alito suggests strongly that this was the guiding principle behind what the Court did. At least temporarily, the Court is sending the message in this case that the law should still be subject to the stay until the appeals are resolved, and especially during an election when enforcing it could prove to be both chaotic and disenfranchise voters for reasons that actually have nothing to do with their ability to comply with the identification requirements.
All of this being said, it would be a mistake to assume that the Supreme Court’s actions this week are any indication of how the Supreme Court will ultimately rule on this issue if it comes before them. As I’ve noted before, it wasn’t that long ago that the Court upheld a similar Voter ID law out of Indiana by a 6-3 vote. While the membership of the Court has changed somewhat since that case was decided, it has not changed enough to conclude that there will not be at least a 5-4 majority in favor of the law when it comes time to make a decision. Of the six votes in that case, only one, John Paul Stevens, has left the Court, and it’s unlikely that any of the other five Justices will be persuaded to change their mind on the issue. As Rick Hasen said in a post early this morning, one should not read too much into this stay from the Supreme Court. At most, they are simply seeking to maintain the status quo while the case is still on appeal and to avoid needless chaos on Election Day. When it comes down to a final vote, the Justices are likely to uphold the law and allow it to go forward for future elections.
