DOJ’s Silence on the Wisconsin Voter ID Case Before SCOTUS

Linda Greenhouse joins the chorus of people calling for the Supreme Court to agree to hear Frank v. Walker, the Wisconsin voter id case, up for a Supreme Court conference vote on Friday. (I think it is very unlikely we will hear anything Monday, when the Court next issues orders.  If the court is seriously considering the case, it has been taking two conferences to vet the cases to make sure they are appropriate vehicles to hear issues. If there is a cert. denial, I would expect a dissent from that decision, given Justice Ginsburg’s earlier strong dissent in the Texas case).

But conspicuously absent from the set of filings from amici calling for the Supreme Court to hear the case is the United States Department of Justice. DOJ’s failure to support the cert. petition stands in sharp contrast to the Texas voter id case and the challenge to North Carolina’s strict voting case, where DOJ is an active participant beginning at he level of the trial court. It is also in contrast with DOJ filing an amicus brief in the 7th Circuit in the Wisconsin case, urging the 7th Circuit to affirm a lower court holding that Wisconsin’s law violated both Section 2 of the Voting Rights Act and the Constitution’s equal protection clause.

What explains DOJ’s silence? Within the voting rights community, the decision to seek cert. in the Wisconsin case is controversial. To win, it requires the Court to either expand the scope of the Voting Rights Act section 2 in the vote denial cases or to reinvigorate the equal protection clause in the context of voting rights beyond that which the Court did in the Crawford v. Marion County case.

Crawford, like Frank, came up from the 7th Circuit as a horrible opinion from a Seventh Circuit judge. I wrote an oped in the Washington Post urging the Supreme Court to take the case. It did, and the Supreme Court made things worse. Crawford was essentially a green light for ever more restrictive voter id laws.

Why should now be different? The Frank decision is also horrible. But the judge who wrote the horrible Crawford opinion in the Seventh Circuit, Judge Posner, had a revelation that voter id laws were about voter suppression rather than fraud prevention. Judge Posner wrote a fiery dissent in the Wisconsin case now, and the 7th circuit [corrrected] divided 5-5 on whether to rehear the Wisconsin case en banc. Those supporting the cert. petition in the Wisconsin case, like Linda Greenhouse, are betting that Justice Kennedy and/or Chief Justice Roberts will have a similar revelation on voter id. That’s a big, big bet.

Compare that to Texas. In the Texas voter id case, now pending before the 5th Circuit, we have a holding that Texas’s passage of the voter id law was the product of intentional racial discrimination. That’s a finding which should be very hard to reverse on appeal. it provides an easier constitutional path for the Supreme Court to strike down Texas’s voter id law. The upside of that would be a Supreme Court decision striking down a voter id law on constitutional grounds. The downside is that other cases, like Wisconsin, do not involve intentional discrimination and so a Texas holding might not help very much outside of Texas. It would be an outer bound of what’s allowed and forbidden.

But before this Supreme Court, DOJ may have calculated it will take what it can get.

UPDATE: Sasha Samberg-Champion writes:

I am formerly of the DOJ’s Civil Rights Division and a great fan of your site.  I think you are a little off in your tea leaf reading with respect to the Wisconsin Voter ID case.  As a matter of policy, the SG’s office virtually never files in support of someone else’s cert petition (as opposed to filing its own petition).  That is true even where the DOJ has weighed in as amicus below.  Rather, the SG’s office will weigh in regarding the cert petition only in response to a CVSG (call for the views of the SG).  My understanding is that this policy is precisely to avoid this sort of speculation.  There are thousands of cert petitions filed each year and the DOJ does not want its failure to file in support in any one of them to be read as having any meaning (nor, for that matter, does it want to be lobbied incessantly, and have to make a difficult decision, with respect to each petition).  So the “failure” to file in this case is unsurprising; it would have been surprising for the DOJ to weigh in before being asked by the Court.

Interesting. Though my sense is that this case is of such importance that DOJ would have weighed in if the government thought this case was likely winnable.

 

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