Justice Alito’s Disturbing Statement in Wisconsin Voter ID Case

[Bumping to the top with a brief update.]

Last week the Supreme Court voted 6-3 to stop a horrendous 7th Circuit court order allowing Wisconsin to immediately put its voter id law into effect. Regardless of where you stand on the desirability of voter id laws (I oppose these tough state laws but support a national voter id program coupled with universal voter registration done by the federal government with the government picking up all costs of verifying identity), the Supreme Court made the right call. Wisconsin had an 8 month plan to implement ID which was going to have to be done within 8 weeks; the state conceded that up to 10 percent of eligible voters might not be able to get ID in time for the election; and the parties agreed that some WI voters born out of state who had to get out of state birth certificates were going to have a very difficult time getting their documentation in time.  On top of that, there were absentee voters who had already voted before the ID law was in effect, and they were going to be disenfranchised unless they followed up with getting additional documentation to WI election officials in time.

Faced with all of this, the majority put WI’s voter id law on hold for this election, so that it may be rolled out in a smoother way over time.  But Justice Alito, joined by Justices Scalia and Thomas, dissented. They seemed to acknowledge the disenfranchising risks and the “Purcell principle” that courts should not change election rules just before an election, but they saw a bigger principle at stake:

There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted. But this Court “may not vacate a stay entered by a court of appeals unless that court clearly and‘demonstrably’ erred in its application of ‘accepted standards.’” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U. S. ___, ___ (2013) (slip op., at 1) (SCALIA, J., concurring in denial of application to vacate stay) (quoting Western Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O’Connor, J., in chambers);some internal quotation marks omitted). Under that test, the application in this case should be denied.

The bigger principle Justice Alito recognizes is deference to the Court of Appeals. Of course, the Supreme Court showed no deference in Purcell itself, when the Ninth Circuit issued a stay stopping use of Arizona’s law. No deference to the Courts of Appeal in the Ohio or North Carolina cases either, both cases in which Courts expanded voting rights. So why deference here? Because the 7th Circuit was clearly right? Well that’s belied by the 7th Circuit’s 5-5 split over whether to rehear the Wisconsin case en banc.

Further, why should a principle of deference which is applied as a matter of equity trump the actuality, and not merely the risk, of voter disenfranchisement in Wisconsin? Simply put, Justices Alito, Scalia and Thomas do not value the right to vote as strongly as the other members of the Court (which is also shown in their separate opinion in the 2008 Crawford Indiana voter id case, where Justice Scalia wrote for these Justices that so long as most people would not be disenfranchised by a voter id law, then no one could challenge that law—even those people who would have special difficulty getting an ID.)

UPDATE: If the Texas case ends up at the Supreme Court, it seems pretty clear from the Wisconsin case that there are at least three votes to allow Texas to use its ID law in this election.

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