Decision means Constitutionality of 'discriminatory' voting laws unlikely to be determined by Supremes before 2016 Presidential elections...
By Brad Friedman on 3/23/2015, 2:36pm PT  

A few weeks ago, our legal analyst Ernie Canning warned how the U.S. Supreme Court's pending decision on whether or not to hear the ACLU's challenge to the Wisconsin GOP Photo ID voting law might be the last chance before the 2016 Presidential elections to determine the Constitutionality of such laws.

On Monday, the Supreme Court decided not to grant cert in the WI challenge in the Frank v. Walker case. The decision is not a ruling on the merits of the case or the Constitutionality of the law. It simply means that, for now, there were not four votes on the Court to hear the ACLU's challenge at this time.

It also means that, barring further court action or a quick decision on a similar law out of another state, polling place Photo ID restrictions on voters will be allowed in the Badger State in 2016. That, despite the fact that the federal trial court found, when striking down the law as unconstitutional and a violation of Section 2 of the Voting Rights Act last year, that the new Republican-enacted law may serve to bar some 300,000 disproportionately Democratic-leaning and already lawfully registered voters from casting a ballot in the state's Presidential election.

There is also more than a bit of irony in this matter, in that, after U.S. District Court Judge Lynn Adelman soundly rejected the law in 2014 --- finding that "evidence adduced at trial demonstrates" WI's Act 23 "disproportionately impacts Black and Latino voters" and that the law would "prevent more legitimate votes from being cast than fraudulent votes" --- the 7th Circuit Court of Appeals deadlocked (disingenously) 5 to 5 on whether to stay the original ruling. That deadlock meant the stay would be granted and the WI law would be allowed, barring further court challenges, despite the fact that 6 federal judges had voted to strike down the law, while just 5 had voted in its favor. To make matters worse, Act 23 had also been struck down previously in state court as a violation of the state constitution as well. Nonetheless, in this matter, a minority of judges successfully ruled against the majority.

All of that, despite a blistering dissent filed in last year's 7th Circuit Court WI decision by against the law (and all such laws) from revered conservative 7th Court of Appeals Judge Richard Posner. Posner's original ruling in favor of a Photo ID restriction law in Crawford v. Marion County, Indiana, was the basis of the first such case to be heard by the U.S. Supreme Court, upholding Indiana's Photo ID law in 2008. So his unambiguous reversal on the issue, now that we know much more about such laws, was noteworthy and, opponents of the law had hoped, convincing to the Supremes who have, for many years, favorably cited the legal scholar's opinions.

Though the 7th Circuit's decision to temporarily stay the original ruling striking down the law was later vacated by the U.S. Supreme Court last year --- on the basis that the stay was made too close to the election --- the discriminatory law is now back in place in the state. The refusal by the Court to grant cert this weeks means that it will likely remain in place as the next Presidential election begins.

Some watching these matters closely, however, believe that Monday's decision by SCOTUS to not hear the Wisconsin case may ultimately be a good thing, perhaps "a blessing in disguise"...

Writing at his Election Law Blog, UC Irvine election law professor Rick Hasen noted that the ACLU's attempt to have the matter heard before the U.S. Supreme Court had "divided the civil rights community":

As I noted last week, 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 is thin indeed.) 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.

"Rick could well be right about the reasons the four liberal justices did not insist on granting cert," Canning told us on Monday, "but if he is, they've gambled with the outcome of the 2016 election."

It should also be noted here that WI Gov. Scott Walker, one of the current front-runners for the 2016 GOP nomination, has been an ardent supporter of the state's attempt to institute polling place Photo ID restrictions from day one. This change to voting laws in the Badger State will likely be good for both him and the Republican Party in general. President Obama carried Wisconsin, a swing state, in 2012 by slightly more than 200,000 votes. The disproportionate disenfranchisement of 300,000 otherwise lawfully registered voters could well serve to shift Wisconsin and its 10 electoral votes to the GOP column in 2016.

In the meantime, Hasen notes that the DoJ has done little to support the WI challenge, focusing instead on similar laws enacted by Republicans in North Carolina and, in particular, Texas, where a federal trial court also struck down the law. But, in the Texas case, in addition to finding the law unconstitutional and a violation of the Voting Rights Act, the U.S. District Court judge there also found that state's law to have been purposely discriminatory:

The DoJ, writes Hasen, is "hoping those cases will be better vehicles for getting voter id laws struck down."

But relying on Texas to ultimately help Wisconsin is risky. In 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 to stay out of the Supreme Court 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 in not voting to grant cert in this case.

As Canning explained earlier this month when describing why Wisconsin's Frank v. Walker case might be the last chance for the Supremes to find all such laws unconstitutional before they might skew the results of the 2016 elections by barring hundreds of thousands of legal voters from the polls, the federal cases in both Texas and North Carolina are unlikely to work their way up to the high court in time to be stopped before votes are cast in 2016.

"In order for there to be clear resolution on these types of laws prior to the beginning of the 2016 primary and general election cycle, the Court would need to look at Wisconsin's case now, rather than wait for similar laws in other states to make their way up through the lower courts," Canning noted in his recent article.

As the ACLU wrote in its (now rejected) brief to the Supreme Court: "Wisconsin admits that this case is 'procedurally far ahead of the cases from Texas and North Carolina'...In Texas, Fifth Circuit briefing will continue through mid-March, followed by oral argument, a panel decision, and possibly a petition for rehearing...North Carolina is even farther behind; trial is not scheduled to begin until July...There is no guarantee that this Court could consider either case before the end of the October 2015 Term."

That's important, given that, as we learned in 2014, the Supremes are now regularly invoking what law professor Hasen describes as the Purcell Principle. That is, they won't allow election laws to be changed just prior to elections --- even where lower courts have found that the law in question might discriminate against hundreds of thousands of voters. That is why the Court blocked WI's GOP Photo ID restriction from taking effect in 2014, but also allowed the TX GOP Photo ID law to be implemented despite the trial court determining that 600,000 legally registered voters could be disenfranchised by it. In the case of the former, allowing the law to be implemented in WI would have amounted to what the Court regarded as a last minute change. In the case of the latter, stopping implementation of the law in TX would have presented a last minute change.

Therefore, as Republicans in both Texas and North Carolina do their best to slow-walk the pending challenges to their Photo ID law, as Canning explained last December, the chances that neither case makes it to the Supreme Court in time to be struck down before 2016 --- even if the lower courts find the laws unconstitutionally discriminatory --- continue to increase.

That's good news for Republican candidates, but its very bad news for American voters and elections.

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