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Since 2008 – Progress Through Politics

Supreme Court Watch: Voting Rights, UPDATE: North Carolina voters lose; WI voters win; Texas next?

This week we are watching for news out of the Supreme Court.

UPDATE 2: Emergency Stay Granted to Stop Implementation of Wisconsin Voter ID

… the basis was the Purcell objection, the proximity to the upcoming election and the risk of electoral chaos.

PDF of order (“Justices” Alito, Scalia, and Thomas dissented) is here:

the Seventh Circuit’s stay of the district court’s permanent injunction is vacated

Texas: A federal district court struck down the Texas Voter Id Law. The ruling issued an injunction, Texas said that they will appeal, so now we watch again.

UPDATE: 4th Circuit overturned by SCOTUS, extended registration in NC cancelled

… the full slate of changes passed by North Carolina this year, increasing restrictions on the voting process, is now back in effect for the election.

Justices Ginsberg and Sotomayor dissented (PDF) noting that the courts removal of pre-clearance in the VRA led directly to this outcome:

These measures likely would not have survived federal pre-clearance. The Court of Appeals determined that at least two of the measures – elimination of same-day registration and termination of out-of-precinct voting – risked significantly reducing opportunities for black voters to exercise the franchise in violation of ยง2 of the Voting Rights Act.

There are two important election related emergency requests that are pending. One is for North Carolina and is in the hands of Chief Justice Roberts. The other is for Wisconsin and is in the hands of Justice Kagan. Both matters have been fully briefed. Court watchers expect the North Carolina ruling to go in favor of the state and the Wisconsin ruling to go in favor of the voters. But tea leaf readers are really just guessing because as they say, the law is an ass, and the Supreme Court does whatever the heck it wants.

More below …

Rick Hasen at wonders why the North Carolina ruling was not issued since Roberts had asked for briefs to be filed by Sunday at 5pm, suggesting some urgency:

So why the delay?

There is no way to know from the outside, but here are some possibilities, beginning with the most likely.

1. Someone is dissenting, or at least writing something to explain the decision.  In the Ohio case, issued last week, the vote was 5-4 but there was no explanation from either the (conservative) majority or the (liberal) dissenters. Someone may want to say something here, either objecting to or explaining what the Court is doing.

2. The Court decided it wants more information and decided to wait. Today the trial court held a status hearing in the case and, according to a just-filed letter from NC challengers, the state said it would be easy to implement the 4th Circuit’s order. The challengers promise a transcript and no doubt NC will object to this characterization.

3. The Court wants to decide the North Carolina and Wisconsin case together, or perhaps a dissenter wants to reference a potential inconsistent treatment of the Purcell delay issue in the two cases. That would mean waiting until the further briefing came in in the Wisconsin case.


When we last left the North Carolina ruling, the 4th Circuit had stopped two parts of the North Carolina law from going into effect: the elimination of a week of early voting and how ballots that are cast in the wrong precincts are to be handled. The state wanted to eliminate the early voting week because it also, because of existing election law, allowed people to register at the same time; it was called the Golden Week because it required only one visit to the polling place where you could register and vote. The second part that the appeals court stopped was the handling of ballots accidentally cast in the wrong precinct. The new law threw those out … the old law allowed them to be treated as provisional ballots and counted as long as the voter did not vote anywhere else.

In Wisconsin, we are waiting for a ruling on the voter id law which was put in place on September 12th based on new rules for obtaining ids that were rushed into place by the state on September 11th. There is no question that the lifting of the stay that had been in place on this law since 2012 – with such short notice – will disenfranchise voters. District Judge Adelman, in his initial ruling, estimated that 9% of Wisconsin voters lacked the proper id and wherewithal to get the proper id: about 300,000 voters. With the relaxation of the documentation needed to obtain a voter id, the number is estimated now to be somewhat less BUT – and this is a big BUT – 20% of Wisconsin voters do not realize that they need an id to vote. Note: the last governors election in 2010 was decided by about 60,000 votes and this years election is expected to be closer.

The Purcell test, in simple terms says that you cannot change rules for an election when it is so close to the date that it causes chaos and confusion. The only exception is if the state can show true harm (not just rightwing butthurtery) if the law is delayed.

In the case of Wisconsin, there have been no (as in ZERO) cases of voter fraud that an id would have stopped from occurring so delaying the voter id requirement until the Spring 2015 election causes no harm to the state*. And having to obtain a special voter id that can only be issued by the state’s Department of Motor Vehicles during normal business hours will cause some voters to be unable to cast a ballot. Period.

*Wisconsin Attorney General J.B. Van Hollen plays Bad Analogy Theater when he says, in his response: “Wisconsin does not have to be robbed before it can lock its doors.”. No, but before you take away the most basic right of democracy, the right to vote, you have to base it on more than fear that something that has never happened COULD happen. Republicans are famous for saying that we should enforce the laws on the books before we make new laws; there are Wisconsin laws that make voter fraud a felony and that should be enough to keep the people from voting illegally … and robbers out of AG Van Hollen’s living room.

I hope that Justice Kagan rolls her eyes at this flimsy construct.


Editor’s Note: Feel free to share other news stories in the comments.


  1. Virginia’s redistricting was tossed out as unconstitutional.

    One of the most aggressive gerrymanders in the country is unconstitutional, according to a divided three-judge panel in Virginia. In 2012, President Barack Obama defeated Republican Mitt Romney by three points in the state of Virginia. Nevertheless, Republicans control eight of the state’s eleven congressional districts. Yet, according to an opinion by Judge Allyson Duncan, a George W. Bush appointee, the maps that produced this result are unconstitutional and the legislature must “act within the next legislative session to draw a new congressional district plan.” […]

    The Voting Rights Act, Judge Duncan explained, “does not ‘give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of nonretrogression.'” Scott’s new district has “an odd shape” made up of “a composition of a disparate chain of communities, predominantly African-American, loosely connected by the James River.” Moreover, while the new black voters increased the black voter population within the district from 53.1 percent to 56.3 percent, such packing was completely unnecessary to maintain black voter strength in Virginia. “In 2010,” Duncan explained, “Congressman Scott won 70% of the vote, while in 2012-under the redistricting plan at issue here-he won by an even larger margin, receiving 81.3% of the vote.”

  2. NC says it’s making plans to comply with voter law

    The board’s website contains inaccurate information, including that “voters who appear at the wrong precinct won’t have their votes counted,” said Allison Riggs, a staff attorney for the Southern Coalition for Social Justice.

    She said that will cause “confusion among voters.”

    “These are things that can be easily changed and should be changed by this afternoon,” she said.

    Senior Deputy Attorney General Alexander Peters said the state would update the website Wednesday with new information about same-day registration.

  3. This time it was to stay implementation of the voter id law based on the 7th Circuit ruling last week that overturned the district court ruling that the voter id law is unconstitutional because of Voting Rights Act violations. That ruling was the horrendous hackery of Judge Frank Easterbrook that mocked people who don’t have ID and was wrong about the facts and the law. Other than that, it was great!!

    It is not clear whether they needed to file a new stay but Rick Hasen thinks it was a good idea to make sure to touch all the bases.

    Here is the PDF:

    Applicants respectfully request an emergency order staying the October 6, 2014 judgment of the United States Court of Appeals for the Seventh Circuit pending the timely filing and disposition of a petition for a writ of certiorari. The judgment below reversed the district court’s permanent injunction of Wisconsin’s new voter ID law, allowing the State to enforce the law in next month’s election despite insufficient time to fairly and responsibly implement the law to prevent the disenfranchisement of hundreds of thousands of registered Wisconsin voters.

  4. ACLU Asks U.S. Supreme Court to Stay Appeals Panel Ruling on Wisconsin Voter ID Law

    The motion filed today also notes factual inaccuracies in the appeals panel’s ruling, including:

       “The Seventh Circuit also could not fathom that so many registered Wisconsin voters lack a photo ID ‘in a world in which photo ID is essential to board an airplane, . . . pick up a prescription at a pharmacy, open a bank account or cash a check at a currency exchange, buy a gun, or enter a courthouse to serve as a juror or watch the argument of this appeal.’ Wrong, wrong, wrong, wrong, and wrong again. Wisconsin fliers, patients, bank customers, gun owners, and court watchers do not need photo IDs. Only Wisconsin voters.”

       “The panel inexplicably stated that key voter witnesses ‘did not testify that they had tried to get [a copy of their birth certificate], let alone that they had tried but failed.’ But numerous witnesses testified that they tried and failed to get a birth certificate so they could get a voter ID.”

  5. Court allows North Carolina voting limits

    The Supreme Court, with two Justices noting dissents, on Wednesday afternoon allowed North Carolina to bar voters from registering and casting their ballots on the same day, and to refuse to count votes that were cast in the wrong polling places.  Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.  The majority did not explain its action.

    The order gives the state time to file an appeal from lower-court rulings striking down those two provisions, which were part of a larger, sweeping change in voting rights in the state.  If the Court grants review of the state’s appeal, the postponement will remain in effect until there is a decision.[…]

    The U.S. Court of Appeals for the Fourth Circuit found that the two provisions permitted by Wednesday’s Supreme Court order would risk a significant reduction in voting opportunities for black voters in North Carolina, in violation of a part of the Voting Rights Act still intact.

  6. Diana in NoVa

    Sorry for the bad language but I feel outraged by this.

    Words can’t describe what I’d like to do to the conservacreeps on the Supreme Court!

    They are definitely bowing and praying to their corporate overlords.

  7. Why Breyer and Kagan Did Not Dissent in NC Voting Case, and What That Tells Us About WI Voter ID Case

    … this was not a 5-4 decision; it was a 7-2 decision. Why did Justices Breyer and Kagan not join with Justices Ginsburg and Sotomayor in dissent? … Substantively, Justices Breyer and Kagan could well agree with me that ultimately North Carolina’s law, which I’ve dubbed the strict set of voting restrictions we’ve seen enacted as a package since the passage of the 1965 Voting Rights Act, should be found unconstitutional. But even so, under the Purcell v. Gonzalez principle, it was wrong for the 4th Circuit to make this change in the rules so close to the election (particularly where plaintiffs waited a while to bring their initial suit). […]

    The Purcell issue looms very large in the Wisconsin voter id case. 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).

    He thinks it may mean that Justices Breyer and Kagan are boxing in the conservative majority by making it about a strict Purcell issue … and if they fail to see that, exposing them as partisan hacks who will only rule in favor of Republican laws.

    I hope he is right on the boxing in. I don’t care to win any Pyrrhic victories, I want to win on November 4th when every citizen is allowed to vote.  

  8. Links to articles about what is going on in Texas.

    First, from the Brennan Center, the plaintiffs, their well-deserved victory lap:

    Texas voters scored a clear victory today when a federal court blocked the state’s restrictive photo ID law, ruling it violates Section 2 of the Voting Rights Act and the U.S. Constitution by effectively denying African Americans and Latinos the same opportunity as white voters to cast a ballot. […]

    U.S. District Judge Nelva Gonzales Ramos found that Texas’s law creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Latinos and African Americans, and was imposed with an unconstitutional discriminatory purpose.

    Texas cannot enforce its photo ID law for the 2014 election in November. The Court ordered Texas to immediately return to enforcing the voter identification requirements for in-person voting in effect immediately prior to the enactment and implementation of the photo ID law.

    The Texas attorney general, who by the way will benefit greatly from voter suppression since he is running for governor, indicated that he will appeal.

    Experts Rick Hasen and Justin Levitt from, weigh in:

    BREAKING: Federal Court Strikes TX ID Law

    A federal court has struck down Texas’s voter ID law.  It violates the Voting Rights Act, it violates the constitutional prohibition on poll taxes, it violates the constitutional prohibition of unjustified burdens, it violates the constitutional prohibition on intentional racial discrimination: indeed, in 147 pages of opinion, there’s little that the ID law doesn’t violate.

    Also extremely important: the court expressly finds intentional discrimination relevant to bail-in under the Voting Rights Act, and says it will consider a bail-in order in the days to come.  If the court indeed follows up with a bail-in order, Texas could become the first state brought back under a preclearance regime since Shelby County.

    The Biggest Aspect of the Texas Case: Texas To Be Covered Again by Section 5 (If Case Stands)

    Getting Texas and North Carolina covered again under the Bail In provisions of the Voting Rights Act has been a key strategy of the U.S. Justice Department. These are test cases, and it is an extremely high hurdle. Not only does DOJ have to prove the state engaged in intentional racial discrimination in voting, but the court upon so finding still has discretion as to whether to require the state to be subject again to preclearance and to fashion the scope of the order (in terms of time and types of changes subject to preclearance). At the end of the TX order, the judge says there will be a status conference to determine the scope of the preclearance.

    If this works, it will be very important because it would mean that a variety of changes, such as voter id laws, registration laws, and redistricting, would again be subject to federal approval (either DOJ or a three judge court in DC).  Preclearance is a big stick for the federal government.

    Maybe all is not lost for voters rights in America.

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