October 20, 2006

Breaking News: U.S. Supreme Court Reverses Ninth Circuit Order Barring Arizona Voter ID Law

The opinion is here. The state asked for a stay from Justice Kennedy, but he referred it to the entire Court, which treated the motion as a petition for cert. The Court unanimously reversed the Ninth Circuit, which had barred the use of Arizona's new voter i.d. law.

The Court's order says it expresses no opinion on the ultimate merits of the case, and Justice Stevens' concurring opinion notes that allowing the voter i.d. law to be put in place will allow the courts to evaluate issues related to possible fraud prevented by the law and possible disenfranchisement caused by the law in light of actual historical experience, rather than speculation.

But the opinion may be more important for two general principles set forth here rather than the details of this particular case:

1. The court notes important voter interests on both sides of the voter i.d. debate (echoing what Judge Posner said in 7th Circuit oral arguments on the Indiana voter i.d. law earlier this week). The Supreme Court said: "Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised....Countering the State's compelling interest in preventing voter fraud is the plaintiffs' strong interest in exercising the 'fundamental political right' to vote. Dunn v. Blumstein, 405 U. S. 330, 336 (1972) (internal quotation marks omitted). Although the likely effects of Proposition 200 are much debated, the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs' challenges."

2. The Court seems to be signaling an argument against last minute court interventions in the machinery of running elections unless really necessary: "Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures. Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase. So the Court of Appeals may have deemed this consideration to be grounds for prompt action. Furthermore, it might have given some weight to the possibility that the nonprevailing parties would want to seek en banc review. In the Ninth Circuit that procedure, involving voting by all active judges and an en banc hearing by a court of 15, can consume further valuable time. These considerations, however, cannot be controlling here. It 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."
UPDATE: An early AP story is here. Ned Foley offers this preliminary analysis.

Posted by Rick Hasen at October 20, 2006 01:22 PM