I’ve explained why I think the Supreme Court was correct to block Wisconsin’s voter id law for use in this election. There was too much of a risk that the law could not be implemented fairly in time for this election, leaving many voters disenfranchised (a point WI basically conceded and then said “so what”).
But, judged by Justice Alito’s dissent in yesterday’s Supreme Court order, the Court acted pursuant to this Purcell principle and not because it believes Wisconsin is likely to succeed on the merits. All of these cases OH, NC, and WI (and soon Texas?) raise different issues when considered on an emergency basis compared to when the Court, on the merits, will (if it agrees to hear these case) decide whether new restrictions in voting violate the Constitution’s Equal Protection Clause and/or section 2 of the Voting Rights Act. On that point, I recently wrote in Slate:
But it’s no good betting that the Supreme Court will read either the Constitution or the Voting Rights Act so expansively. Indeed, many of us were apoplectic when the Supreme Court in Shelby County struck down the preclearance provisions of the Voting Rights Act in 2013 precisely because we knew that these other tools for policing cutbacks in early voting were unlikely to be successful given how the courts had already interpreted the scope of these provisions. For the most part, it has been Democratic and more liberal judges who have issued opinions reading voting rights protection broadly, and it has been Republican and more conservative judges who have issued opinions reading the protections narrowly. There is every reason to expect the same pattern at the Supreme Court, with a 5–4 conservative-liberal split on these questions.
So we should celebrate that the Supreme Court did the right thing now in the Wisconsin case. But don’t expect them to continue doing the right thing. The Chief and Justice Kennedy will very likely be with today’s Wisconsin dissenters on the merits down the line.