Not All “Purcell Problems” Are Alike

Rick says that tonight’s TX ID case (which does, indeed, enter a permanent injunction against the ID law – on pp. 142-143 of the opinion) creates a huge Purcell problem.  I’m not so sure.

To be clear, I can understand a Purcell problem with decisions changing early voting or same-day registration requirements (as in OH or NC) this close to the election; setting up that infrastructure is no small matter, with significant logistical challenges on a statewide scale, and very little time to implement.  And I can really understand a Purcell problem with a requirement to implement a strict ID requirement, both in person and by absentee, when none of the state’s infrastructure is prepared to issue IDs to those who don’t have them, and absentee voters have already received (and perhaps returned) their ballots under different legal instructions (as in WI).

But Texas seems to me another matter entirely.  The only required logistics involve maintaining the status quo ante on election day itself, which involves a bit of pollworker training — the pollworker training used for years before — about what ID is acceptable.  There may well be a bit of confusion.  But weighing a small amount of confusion against the implementation of a law found to be the product of intentional discrimination with what a court found (after a full trial) to be a substantial amount of likely disenfranchisement is nothing the Court has yet encountered.

It’s also worth remembering that though the original Purcell case did involve the Court overturning a 9th Circuit stay of an identification requirement, the court of appeals offered no written analysis on the merits, and issued its decision before the trial court had issued findings or legal conclusions.  I’ll say that again: in 2006, the 9th Circuit panel stayed implementation of the law without explaining why the trial court had erred, in part because the trial court hadn’t yet explained what it had done either.  (Here’s the 9th Circuit order — see for yourself.)  That made it substantially easier for the Court to decide that the status quo was worth preserving.  Indeed, the legal basis for the Court’s holding was that “[i]t was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court. We find no indication that it did so, and we conclude this was error.”

To me, a decision to stay that 9th Circuit order seems a far cry from deciding to stay a 147-page opinion following an extensive trial, concluding that a legal change premised on intentional racial discrimination will disenfranchise eligible citizens, and requiring instead the continued use of an identification system that Texas has used for years.  Is Purcell implicated?  Sure.  Does the Texas opinion raise the same problems raised by the orders in OH, NC, and WI … or the original Purcell opinion itself?  I don’t think so.


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