Meanwhile back at the ranch (in Corpus Christi, TX) …
Update re Rick Hasen’s position appended below. 10/11 at 11:18 a.m. (and edited for clarity and a typo correction on 10/11 at 6:27 p.m.).
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Addendum on Purcell v. Gonzalez added below. 10/10 at 3:20 p.m.
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At about the same time last night that the Supreme Court issued its one-page stay-of-the-stay in Frank v. Walker, the Wisconsin voter ID case, Corpus Christi-based U.S. District Judge Nelva Gonzales Ramos, and Obama appointee, issued a 147-page opinion in Veasey v. Perry, the Texas voter ID case that alleges violations under a still-standing section of the Voting Rights Act as well as violations under the Constitution. Notably, Judge Ramos began her opinion with this paragraph:
The right to vote: It defines our nation as a democracy. It is the key to what Abraham Lincoln so famously extolled as a “government of the people, by the people, [and] for the people.”1 The Supreme Court of the United States, placing the power of the right to vote in context, explained: “Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”2
The first footnoted reference is to the Gettysburg Address. The second footnote is to Reynolds v. Sims. Election Law guru Rick Hasen, a professor at UC-Irvine Law School and prolific blogger and article writer, blogged last night about rulings. Since the Seventh Circuit panel issued its emergency order in the Wisconsin voter ID case on Sept. 12 dissolving the trial judge’s stay of the Wisconsin statute, Hasen has written extensively about a 2004 Supreme Court opinion, Purcell v. Gonzalez, which holds that states are not entitled to make significant changes to voter-registration or poll access so close to an election that the changes will cause confusion and disruption of access. Or, as Hasen put it in a blog post on Oct. 2 blog post about the Wisconsin plaintiffs’ petition filed hours earlier asking the Supreme Court to issue the emergency order that it did issue yesterday:
C’mon folks. This should be a no brainer. You don’t impose new requirements in the weeks before an election without adequate preparation which runs the serious risk of disenfranchising voters. If the Supreme Court doesn’t recognize that, we are in even worse shape than I thought.
But in his post last night about the Supreme Court’s order in the Wisconsin case and Ramos’s opinion in the Texas case, he says this about the Ramos opinion:
This order too [like the Seventh Circuit panel’s order in the Wisconsin case] creates a huge Purcell problem, as I’ve blogged, changing the rules so close to the election. If the district court orders an immediate stop to Texas’s ID law, I expect the 5th Circuit (if not the Supreme Court) to reverse that on Purcell grounds.
I don’t understand the basis for that claim and I disagree with the statement. The Ramos ruling requires nothing at all of voters and nothing of election officials and poll workers other than that they not require that voters produce an ID. There’s no chance at all that this change would disenfranchise voters. Hasen is an Election Law expert and I certainly am not, but unless Purcell creates a categorical bar to any change, irrespective of the nature, purpose and effect, shortly before an election—and doubt that it does—why would Purcell be a stumbling block to an order barring enforcement of a voter ID law?* I have no idea. I discussed Purcell in the context of the Texas case, Frank v. Walker, extensively in my post yesterday. I also discussed the relation of Citizens United and McCutcheon v. FEC to all the voter ID litigation. That post is still very relevant to all the legal challenges to the voter ID laws, and I hope a few people read it!
*Sentence corrected for two minor typos, 10/12 at 12:54 p.m. Sighhhhhh.
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ADDENDUM: As an elaboration on the Purcell v. Gonzalez issue, I want to highlight an exchange between reader JimH and me in the Comments thread:
JimH/October 10, 2014 1:28 pm
I am not a lawyer but I claim to read English. This case seems to have decided by the various courts in 2006.
At first blush, Purcell v Gonzales might seem to speak out against court decisions made close to an election.
But in that case on 20 October 2006 the US Supreme Court wrote of the Court of Appeals “by failing to provide any factual findings or indeed any reasoning of its own the Court of Appeals left this Court in the position of evaluating the Court of Appeals’ bare order in light of the District Court’s ultimate findings.”
Thus the injunction seems to have been vacated based on the reasoning of the District Court on 12 October 2006. See the very brief summary below.
From: caselaw.lp.findlaw.com/data2/circs/us/06a375.pdf
11 September 2006 the District Court denied the request for a preliminary injunction but did NOT issue its finding of facts and conclusions of law.
5 October 2006 the Court of Appeals issued its four sentence order enjoining Arizona from enforcing Proposition 200′s provisions.
12 October 2006 the District Court issued its finding of facts and conclusions of law. It decided in favor of denying the injunction.
20 October 2006 the US Supreme Court vacated the Court of Appeals injunction.
ME/October 10, 2014 3:10 pm
Jim, yeah, the Purcell opinion seems to me based almost entirely on the fact that the district court—that is, the trial judge who actually heard and weighed the evidence—had (finally) written a detailed opinion that discussed the evidence and that said that there were two critical safeguards against disenfranchisement (the provisional-vote option on election day, and the right to vote early without any ID requirement), and therefore the statute was okay. The Supreme Court said that that conclusion did not appear clearly erroneous—which is the standard of “deferential” appellate review of a district court’s ruling—and the appellate court did not state why it thought the district court ruling was erroneous (i.e., that the statute WOULD disenfranchise some voters), and therefore, in light of the nearness of the election, the Supreme Court vacated the appellate court’s stay of the district court’s order allowing enforcement of the statute.
That’s actually the opposite of what happened in both the Wisconsin case and the Texas one. In both cases, the district judge heard and weighed evidence and found that enforcement of the statute WOULD disenfranchise a substantial number of voters. So why would Purcell require the Fifth Circuit Court of Appeals to reverse the district court’s order that was based upon a detailed evidentiary finding of significant disenfranchisement if the statute is enforced—when the stay of enforcement requires nothing more than that poll workers not require IDs of voters? I don’t get Hasen’s claim.
One important thing about Purcell is its emphasis on voter fears of dilution of their vote because of voter-impersonation fraud—and how important voters’ faith in the integrity of the electoral process is—as justification for enactment and upholding of these statutes. I deconstructed that claim in my post yesterday about “the Confidence Fairy.” But what’s so striking about Purcell is that it absolutely cries out for acknowledgement by the courts that the disenfranchisement of substantial numbers of otherwise-eligible voters dilutes the political power of voters who share the disenfranchised voters’ candidate preferences. And those voters know it. A failure by the Supreme Court to do that once it hears these cases in full and rules on the constitutionality of these statutes would be glaringly partisan.
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UPDATE: Hasen has an article on Slate, published yesterday about 15 minutes after I posted this post, in which he largely but not entirely backtracks on his position of the night before that Purcell creates a huge problem for the Texas plaintiffs and that the Fifth Circuit Court of Appeals likely will dissolve the district court’s stay. (Apparently I’m not the only one who was dumbfounded by his Thursday-night blog post, and most likely by yesterday morning his email inbox was flooded with comments about it.) He writes:
This is not the first time an emergency election case has reached the Supreme Court. In the 2006 Purcell case, the Supreme Court reversed an order of the U.S. Court of Appeals for the 9th Circuit that put Arizona’s new voter ID law on hold. The justices seemed especially perturbed that the 9th Circuit did not explain its reasons for acting, but the Supreme Court focused on the risk of last-minute changes on voters and the election:
“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.”
We can understand Ohio, North Carolina, and Wisconsin as cases all applying this Purcell principle. But the Texas case shows that the Purcell principle may not be that clear. Is the principle that one should not change election rules before the election because doing so can cause voter confusion and/or electoral chaos? Or is it that courts must weigh such risks? How should such risks be weighed against the risks of voter disenfranchisement? Or is it that courts must give good reasons for blocking a law before an election?
There probably has to be some weighing here. If there is a serious risk of voter disenfranchisement, as there was in Wisconsin, where the state conceded that up to 10 percent of eligible voters might not be able to get the right ID in time for November’s elections, that’s a good reason to side with the law’s challengers.
But what about Texas? On the one hand, the law is likely to have broad disenfranchising effects, especially on poor and minority voters. On the other hand, if the court orders Texas not to use the ID rules in this election, it risks some voter confusion and messes up the plans of election administrators.
Perhaps that’s not a big cost, because the worst that happens is that voters bring identification to the polls they don’t really need, and election officials just shelve the plans they had to check IDs for the election.
Okay, look: Only in the Mad Hatter’s rabbit hole does voter participation increase by turning away people who show up at their polling place without a government-issued photo ID. If the objective of Purcell truly is to not tamp down on voter participation—to not cause people to refrain from exercising their right to vote—than Purcell cannot serve as a basis for an appellate court or Supreme Court order dissolving Judge Ramos’s stay.
I mean … seriously?
Adding requirements and removing requirements are two very different things. The imposition on voters are two very different things. To equate them is laziness.
Rick Hasen is generally pretty awesome, so I was really surprised to read that comment of his.
I am not a lawyer but I claim to read English. This case seems to have decided by the various courts in 2006.
At first blush, Purcell v Gonzales might seem to speak out against court decisions made close to an election.
But in that case on 20 October 2006 the US Supreme Court wrote of the Court of Appeals “by failing to provide any factual findings or indeed any reasoning of its own the Court of Appeals left this Court in the position of evaluating the Court of Appeals’ bare order in light of the District Court’s ultimate findings.”
Thus the injunction seems to have been vacated based on the reasoning of the District Court on 12 October 2006. See the very brief summary below.
From: caselaw.lp.findlaw.com/data2/circs/us/06a375.pdf
11 September 2006 the District Court denied the request for a preliminary injunction but did NOT issue its finding of facts and conclusions of law.
5 October 2006 the Court of Appeals issued its four sentence order enjoining Arizona from enforcing Proposition 200’s provisions.
12 October 2006 the District Court issued its finding of facts and conclusions of law. It decided in favor of denying the injunction.
20 October 2006 the US Supreme Court vacated the Court of Appeals injunction.
Jim:
Lawyers do not speak English, much less write in English, and neither do they say what is meant.
Jim, yeah, the Purcell opinion seems to me based almost entirely on the fact that the district court—that is, the trial judge who actually heard and weighed the evidence—had (finally) written a detailed opinion that discussed the evidence and that said that there were two critical safeguards against disenfranchisement (the provisional-vote option on election day, and the right to vote early without any ID requirement), and therefore the statute was okay. The Supreme Court said that that conclusion did not appear clearly erroneous—which is the standard of “deferential” appellate review of a district court’s ruling—and the appellate court did not state why it thought the district court ruling was erroneous (i.e., that the statute WOULD disenfranchise some voters), and therefore, in light of the nearness of the election, the Supreme Court vacated the appellate court’s stay of the district court’s order allowing enforcement of the statute.
That’s actually the opposite of what happened in both the Wisconsin case and the Texas one. In both cases, the district judge heard and weighed evidence and found that enforcement of the statute WOULD disenfranchise as substantial number of voters. So why would Purcell require the Fifth Circuit Court of Appeals to reverse the district court’s order that was based upon a detailed evidentiary finding of significant disenfranchisement if the statute is enforced—when the stay of enforcement requires nothing more than that poll workers not require IDs of voters? I don’t get Hasen’s claim.
One important thing about Purcell is its emphasis on voter fears of dilution of their vote because of voter-impersonation fraud—and how important voters’ faith in the integrity of the electoral process is—as justification for enactment and upholding of these statutes. I deconstructed that claim in my post yesterday about “the Confidence Fairy.” But what’s so striking about Purcell is that it absolutely cries out for acknowledgement by the courts that the disenfranchisement of substantial numbers of otherwise-eligible voters dilutes the political power of voters who share the disenfranchised voters’ candidate preferences. And those voters know it. A failure by the Supreme Court to do that once it hears these cases in full and rules on the constitutionality of these statutes would be glaringly partisan.
It appears that part of the problem was that after the District Court denied a preliminary injunction, that was immediately appealed to the Court of Appeals. The Court of Appeals did not wait for the District Court’s finding of facts and conclusions of law, but instead issued an injunction and that was immediately appealed to the Supreme Court. In the interim the District Court issued its finding of facts and conclusions of law and decided in favor of denying a injunction.
So the Supreme Court was faced with a decision by the Court of Appeals which has been rendered obsolete because of the District Court’s finding of facts and conclusions of law.
But in the final paragraph of the Per Curiam of the Supreme Court wrote “We underscore that we express no opinion here on the correct disposition, after full briefing and argument, of the appeals from the District Court’s September 11 order or on the ultimate resolution of these cases. As we have noted, the facts in these cases are hotly contested, and “[n]o bright line separates permissible election-related regula- tion from unconstitutional infringements.” Timmons v. Twin Cities Area New Party, 520 U. S. 351, 359 (1997). Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an in- junction suspending the voter identification rules.”
Some seem to be reading this paragraph as a warning against court rulings made immediately before an election.
Instead, perhaps it is a warning that in cases where ” [n]o bright line separates permissible election-related regula- tion from unconstitutional infringements” courts should be reluctant to issue injunctions against state laws.
Oops!
This:
But in the final paragraph of the Per Curiam of the Supreme Court
Should be:
But in the penultimate paragraph of the Per Curiam of the Supreme Court
run75441 wrote: “Lawyers do not speak English, much less write in English, and neither do they say what is meant.”
LOL. Thanks I needed that.
Bev and I go back a long way.
Yeah, Jim, the Supreme Court did express dismay that the district court had waited a month after issuing its denial order—until three weeks before the election—to issue its opinion stating its grounds. But the Court also said that the plaintiffs waited longer than they should have after the statute’s enactment to file the lawsuit, so they were partly at fault for the time squeeze.
The way the 19th Amendment and other post-Bill of Rights amendments are phrased is to assume the existence of “the right to vote” as an a priori right, not as one granted by the Constitution. Except for the right to a speedy trial, to be informed or charges, etc., which are affirmatively identified as right the accused “shall enjoy,” the other rights in the Bill of Rights are identified exactly the same way — as rights that are assumed to exist rather than as rights “granted” by the Constitution. That, of course, is only phrasing that would be consistent with the concept that all “men” have been “endowed by their creator with certain inalienable rights.”
It is hard, therefore, to see reserving the right to vote as one that needs to be granted by a holding of the Supreme Court as an argument made in good faith. That strict scrutiny must be required to deny any person the right to vote should be a given. That vague accusations with virtually no proof and imagined impact on voters’ confidence in the process could meet such a standard is laughable — but then, since when has that stopped the Republican Justices from any ruling that will help the Republican Party?
We need ” The People” to get as mad as Lewis Black:
http://www.huffingtonpost.com/2014/10/10/lewis-black-voting-rights_n_5963498.html
on the subject of the judge who believes that as poor minorities are too stupid ignorant and poor to obtain an identification card is offensive and racist. The fact that she believes that we are unable to obtain identification cards whether it is to vote in roller children in school rent a home or buy a home pick up prescriptions etc. etc. is truly offensive and disgusting and I cannot believe that people support this idea because it is right
Sonia:
Just so you know, we believe as you. It is not right to discriminate.