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.).
Addendum on Purcell v. Gonzalez added below. 10/10 at 3:20 p.m.
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.
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.
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.
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?