Breaking: Challengers to WI Voter ID Law Seek Emergency SCOTUS Order: Analysis

The challengers to Wisconsin’s voter identification law have filed a very strong and persuasive 26 page brief in the Supreme Court asking the judges to put Wisconsin’s voter id law back on hold for this election, regardless of what ultimately happens in the case on the merits. Despite the fact that this is a conservative Supreme Court, I think there is a fairly good chance the challengers will get their emergency relief—and they certainly should get their emergency relief.

Why do I think the challengers have a decent chance before the conservative Supreme Court, a Court which just this week voted 5-4 (along ideological lines) to reverse an order restoring an extra week of early voting in Ohio?

The key question before the Court is not whether the challengers can ultimately convince the Supreme Court that Wisconsin’s voter id law violates the Constitution or Section 2 of the Voting Rights Act. On that question, as I indicated in my Slate column this week, there is a good chance the Court divided 5-4 on the scope of both of these provisions.

Instead, 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).

The brief filed with Justice Kagan today does a good job showing that this issue about not changing the rules just before the election comes not just from the Supreme Court’s Purcell v. Gonzalez case, but also from the practice in South Carolina, where Judge Kavanaugh (himself no liberal) would not allow South Carolina’s voter id law to quickly go into effect without an orderly rollout, and in Pennsylvania, where the Pennsylvania Supreme Court would not allow an id law to go into effect without a chance for everyone who wants to get an id to be able to do so.  In the South Carolina case, the id law (as modified to make it less drastic) was allowed to go into effect by a three-judge court. In Pennsylvania, the state could never get its act together on actually getting the IDss out and the state abandoned its appeal.

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.

[This post has been updated.]


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