In my last post, I wrote about the massive opinion in the Texas voter id case that “there is no discussion of whether the actual order will apply to this election and the injunction will stop its use in this election.” Justin now says that the opinion “does, indeed, enter a permanent injunction against the ID law – on pp. 142-143 of the opinion.” I fully agree with that, but that does not tell us what is to happen (or what should happen) in this election.
Here is the operative language from page 143 of the opinion: “Under the injunction to be entered barring enforcement of SB 14’s voter identification provisions, Texas shall return to enforcing the voter identification requirements for in-person voting in effect immediately prior to the enactment and implementation of SB 14.”
This contemplates a separate injunction from the opinion, and it is not clear that this order will have an immediate effect for this election. I am not saying that the judge won’t block the id law for this election—only that this opinion itself does not have the force of law to do so, and that there will be a separate order.
The first question this raises is whether there is an order to be appealed from, or whether Texas needs to wait. (I don’t have access to PACER, and there could be a separate order already sitting there.)
But let’s assume that the court issues such an order blocking ID for this election. In last night’s post I said that this would create a huge Purcell problem, changing the rules just before the election. Justin disagrees, saying that not all Purcell problems are alike, and that in Texas case, blocking the id would be easy-peasy and not violate Purcell:
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.
He goes on to note that although Purcell involved a very similar fact pattern—the 9th Circuit at the last minute blocking implementation of AZ’s id law, the 9th Circuit case is different because the court gave no reason for its order reversing a trial court decision to allow the id law to go forward. And here we have 145 pages of reasons.
This raises two questions.
1. What is the Purcell Principle? (I’m going to write this idea up for a symposium–dibs.) Is it that one should not change election rules before the election because doing so can cause voter confusion and/or electoral chaos? Or is it that courts must weigh such risks? How should such risks be weighed against the risks of voter disenfranchisement? Or is it that courts must give good reasons for blocking a law before an election? I don’t find the last of these very persuasive, but I think the key difference between my view and Justin’s is about how much weighing courts are to do here. I think Justin must be right that there has to be some weighing. And if there is a serious risk of voter disenfranchisement, as in Wisconsin (and perhaps Texas—I still need to read the full opinion), that counsels to give courts more leeway to block things. So normatively this is a difficult question.
2. What will the 5th Circuit or the Supreme Court do if the judge blocks the Texas voter id law this election? My prediction is that the 5th Circuit will reverse the trial court, whether or not it should do so under the Purcell principle. This is based upon my view of the ideology of the judges/Justices likely to decide the case, and how I think they will read the Purcell principle.