Here is the order, and judged by the dissent of Justice Alito, joined by Scalia and Thomas, the basis was the Purcell objection, the proximity to the upcoming election and the risk of electoral chaos.
Not only did the apparent Kagan/Breyer strategy I explained last night to keep the Chief and Kennedy likely work, here’s something odd: I probably agree with the votes on all three of the decisions of the Court in the election cases: OH, NC, and WI. Three in a row for me and the Court—unheard of.
Now there’s an odd procedural wrinkle here. There has also been a ruling on the merits in the WI voter id law, and presumably now Judge Easterbrook & Co could go and reorder implementation of ID for this election. Not that this is likely, but there’s a second pending emergency WI petition to stop immediate implementation of the WI ruling on the merits, and I expect that the Court will follow through with a second order with the same vote.
So how to reconcile the three cases’ votes? In Ohio, the court changed the law close to the election, but more importantly, it imposed an order reestablishing 5 weeks of early voting when the state was still willing to give four. There was no significant burden on plaintiffs and so the lower courts were wrong to order this emergency relief. In North Carolina, North Carolina’s law, which I’ve dubbed the strict set of voting restrictions we’ve seen enacted as a package since the passage of the 1965 Voting Rights Act, should be found unconstitutional. But even so, under the Purcell v. Gonzalez principle, it was wrong for the 4th Circuit to make this change in the rules so close to the election (particularly where plaintiffs waited a while to seek a preliminary injunction [this has been corrected]).
That same Purcell principle applies even more strongly to Wisconsin. That is, even if the Supreme Court ultimately would say that Wisconsin’s law is constitutional and does not violate the Voting Rights Act, this is a very strong case under Purcell. (As I explained, the key question is whether Wisconsin has a strong enough state interest in its sovereignty over elections to implement a voter id law very quickly before the election, when there has been no preparation and when the undisputed evidence shows that, by the state’s own account, up to 10 percent of the state’s voters could be disenfranchised (a position the 7th Circuit en banc dissenters called shocking).
Finally, what happens now with Texas, with the huge win for challengers to Texas’s voter id law which Justin wrote about earlier? It is 4 am where I am and I may have missed it, but in all of the court’s findings—the Texas law violates the Equal Protection clause, is a poll tax, violates the Voting Rights Act, and engaged in enough intentional discrimination to be put back under preclearance–there is no discussion of whether the actual order will apply to this election and the injunction will stop its use in this election.
This order too creates a huge Purcell problem, as I’ve blogged, changing the rules so close to the election. If the district court orders an immediate stop to Texas’s id law, I expect the 5th Circuit (if not the Supreme Court) to reverse that on Purcell grouns.
[This post has been updated.]