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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, October 23
 
The Supreme Court's Arizona Intervention
The U.S. Supreme Court on Friday issued this per curiam opinion in Purcell v. Gonzalez, vacating a Ninth Circuit panel's injunction against enforcement of Proposition 200. Linda Greenhouse of the N.Y. Times has this report and the AP this one. Among those offering some early analysis and commentary are Rick Hasen, Bob Bauer, Alex Keyssar, and my colleague Ned Foley.

My initial reaction to the Court's decision is similar to that articulated by Bauer, who characterizes it as "careless," among other things. At the same time, I don't think that any of the courts involved handled the matter with the care for which we'd hope.

Let's start with the district court, which conducted a hearing on plaintiffs' preliminary injunction motion on August 30 and 31. So far so good ... this ought to have allowed plenty of time for an order to issue and for an orderly appellate process before the election. On September 11, the district court issued this brief order denying plaintiffs motion for a preliminary injunction against Proposition 200's identification requirements. But District Judge Roslyn O. Silver did not issue findings of fact and conclusions of law in support of her order at that time. Those didn't come until a month later -- and with less than a month before the election -- when Judge Silver issued this order on October 11.

By that time, the Ninth Circuit had already ruled on plaintiffs' "emergency" motion for an injunction, filed on September 29. On October 5, a two-judge panel issued this order granting the emergency motion, and enjoining Proposition 200's registration and identification requirements pending the election. Like the district court's original order denying an injunction, the Ninth Circuit's order doesn't explain its reasoning. It would have been preferable for the Ninth Circuit to have issued some explanation of its rationale, at least after the district court finally issued its findings and conclusions on October 11.

Thus, by the time the matter got up to the Supreme Court, the lower courts had already handled the litigation in a less-than-exemplary fashion. That doesn't necessarily mean it was necessary or appropriate for the Supreme Court to intervene. If it did choose to get involved, what the Court might have done is to send the case back to the Ninth Circuit, to either vacate its injunction or provide an explanation for that injunction in light of the district courts findings and conclusions. This would have been a properly restrained response under the circumstances.

Instead, the Court compounded the errors of the lower court, issuing a ruling that does more to confuse than to clarify, despite its invocation of the need for "clear guidance." The Court is certainly right to note that confidence in the integrity of elections is important. It is also right to say that any assessment of the constitutionality of voter ID rules requires consideration of both the state's interests in preventing voter fraud and the voter's interests in not being turned away or having their votes rejected.

Where the Court's reasoning gets sloppy is in saying that "[v]oters who fear that their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised." Is the Court really saying that a "fear" of widespread fraud -- even if unwarranted by the facts -- can justify the adoption of measures that result in the rejection of eligible voters' votes? Or that such fears can justify barriers to voting that aren't tailored to address whatever fraud does exist? It's hard to believe that could really be what the Court means, though those seeking to limit access to the vote are sure to tout this language in future cases.

The Court goes on to compare voting fraud to violations of the "one person, one vote" rule articulated in Reynolds v. Sims. This is a false and ill-considered comparison. In Reynolds, for example, the Court was faced with malapportioned legislative districts that gave some counties' votes a fraction the weight of others, by as much as a 41:1 margin. Contemporary allegations of voting fraud aren't remotely comparable to Reynolds or even to subsequent cases finding "one person, one vote" violations with smaller variances. That's true even if we assume levels of cheating far beyond anything proven. Suppose for example that there were 1000 fraudulent votes in an election consisting of 1,000,000 truly eligible voters. Even assuming this counterfactually high level of voting fraud, the weight of each eligible voter's vote would be "diluted" to a degree that is not just minuscule, but microscopic (1/1,001,000 versus its "proper" value of 1/1,000,000). This is not vote dilution in any real sense.

The Court is undoubtedly right to say that courts of appeal should give deference to the discretion of district courts, when it comes to weighing competing harms, and that there's no evidence that the Ninth Circuit did so. That's surely because there were no findings from the district court to review at the time the Ninth Circuit had to act on the emergency motion before it. Still, it would have been prudent for the Ninth Circuit to have issued an opinion after the district court finally got around to issuing its findings and conclusions.

Viewed in the most favorable light, the lesson from the Court's Arizona intervention is that lower courts should provide an explanation for their intervention in election disputes at the time that they make those decisions. It doesn't provide much useful guidance beyond that to the courts that will have to address the challenge to Arizona's law after the election, much less to other courts considering other ID pending cases. For that reason, there's reason to hope that the Court's opinion won't do much damage to the law in this area. That's about the best one can say of it.

Correction: Doug Johnson notes that the Proposition 200 voter ID rules were in effect for the September 12 primary. I've therefore deleted the reference to the Ninth Circuit's injunction preserving the status quo ante.

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Moritz College of Law The Ohio State University