The Challenging #SCOTUS Argument of Voting Rights Advocates on Last-Minute Election Changes

If, as expected, challengers to WI voter id law go to the Supreme Court seeking to stop the immediate use of Wisconsin’s new voting law for the election coming up in a few weeks, I expect their main argument to be not about the merits of the voting rights challenge but instead about the danger of changing election rules midstream. But that argument may come back to bite the challengers in the North Carolina and Texas cases should it come to that.

As I explained, in In Purcell v. Gonzalez, a 2006 case, the Supreme Court said:

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.

For reasons I’ve flagged here, implementing voter id in Wisconsin at the last minute is likely to cause electoral chaos—a point which should be compelling  regardless of where you stand on the actual merits of WI implementing its voter id law in an organized way.

But that same principle about not changing election rules close to the election hurts those who support today’s 4th Circuit ruling, a ruling which puts some of North Carolina’s voting rules on hold just weeks before the election. This was the key argument of the dissenting (Democratic-appointed) judge in the case. And then there’s this statement from a key North Carolina election official : “We are concerned that changes so close to the election may contribute to voter confusion,” said N.C. State Board of Elections Executive Director Kim Westbrook Strach. “More than 4 million voter guides have gone to the public with information contrary to today’s decision.”

Further, if, as expected, a federal judge bars Texas’s voter id law for use in this election, this will be a big change. The law was used in the primary, and everyone has been proceeding with the law in effect.

So how to argue that changing the rules midstream is a wrong in Wisconsin, but is okay in NC (and possibly Texas)? Here is one potentially winning argument.

In the Wisconsin case, the new id law threatens to disenfranchise voters. Indeed, there is undisputed evidence in the court below that rolling out  the election changes in the last few weeks will cause actual disenfranchisement. This is not the case in NC (or Texas), where presumably making voting easier does not threaten disenfranchisement. (This is what the 4th Circuit majority referred to as the rules establishing a “safety net.”)  If we value voting rights highly enough, the risk of disenfranchisement should matter the most in applying the Purcell rule.

Further, the potential for voter confusion and keeping voters away from the polls is greater in cases where new rules are implemented haphazardly than when new rules are put on hold and older rules restored.

A counterargument to the claim that disenfranchisement is all that matters is that all changes in election rules can confuse voters, and the new rule change in NC threatens to upset procedures which have been put in place and interfere with the orderly conduct of elections by North Carolina election officials.

It will be interesting to watch how these arguments develop.

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