The Fifth Circuit’s order in the Texas voter id case relies on “the Purcell principle” that courts should not change election rules in advance of the election. Although this outcome was expected, this ruling also shows, as I laid out in Slate, the difficulty of applying the Purcell principle in the case where voters face disenfranchisement.
Both the majority and the concurrence recognize the real risk that voters will be disenfranchised by the ruling of the Court. The majority flatly states: “The individual voter plaintiffs may be harmed by the issuance of this stay.4 But we find that this harm does not outweigh the other three factors.” The concurrence is more ambivalent but feels bound by the Purcell principle from the Supreme Court’s recent OH, WI ,and TX cases:
The district court issued a thorough order finding that the Texas voter
ID law is discriminatory. We should be extremely reluctant to have an election
take place under a law that a district court has found, and that our court may
find, is discriminatory. As always, however, we must follow the dictates of the
Supreme Court. In two recent decisions, it stayed injunctions issued based on
findings that changes in an election law were discriminatory. See North
Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL 5026111
(U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P., 14A336,
2014 WL 4809069 (U.S. Sept. 29, 2014). It also lifted the Seventh Circuit’s stay
of a district court’s order in place since the spring that enjoined Wisconsin’s
voter ID law. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9,
2014). I agree with Judge Clement that the only constant principle that can
be discerned from the Supreme Court’s recent decisions in this area is that its
concern about confusion resulting from court changes to election laws close in
time to the election should carry the day in the stay analysis. The injunction
in this case issued even closer in time to the upcoming election than did the
two out of the Fourth and Sixth Circuits that the Supreme Court recently
stayed. On that limited basis, I agree a stay should issue.
Yet there are two potential differences here, which could suggest applying the Purcell principle differently (as I suggested at Slate). First, the risk of changing the rules close to the election should perhaps be balanced with the risk of disenfranchisement. Second, there is less of a problem of turning OFF a voter ID law than turning it ON. Here, there may be some people who are asked for ID who should not be if the ID law is put on hold. But that’s a lower risk of disenfranchisement than if the law, if discriminatory, remains in place. The majority’s response on this point was exceptionally weak. The court wrote that the plaintiffs “fail to recognize that inconsistent treatment of voters, even in just ‘some isolated precincts,’ raises a significant constitutional concern, particularly when this disparate treatment is virtually guaranteed by the late issuance of the injunction.” This is weak because there will be inconsistent treatment of voters either way (including the disenfranchisement of voters who are eligible to vote but who won’t be because of an arguably discriminatory voter id law). Justin makes this point further.
So if you are the DOJ or the private plaintiffs, do you go to the Supreme Court for emergency relief on this basis? There’s not much of a downside at this point. The Court is almost certainly going to address the merits of the equal protection and section 2 issues in either this case, or the WI, NC or OH cases (or all of them). So there’s no keeping this issue out of the Court. Further, there are the reasons I’ve given above for distinguishing these cases under the Purcell principle. It is a longshot that they will be acceptable to the conservative 5 Justice majority of the Court, but there’s little harm in trying. But in this one, there’s a greater chance of a 5-4 split than in these other cases.