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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

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Supreme Court ID Opinion: Preliminary Analysis

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October 20, 2006

The U.S. Supreme Court’s brief per curiam opinion in the Arizona voter ID case is significant and will bear considerable refection and analysis for a long time to come.  Some brief preliminary thoughts in the meantime:

First, the Court was evidently disheartened that the Ninth Circuit gave so little deference to the district court’s decision on the question whether or not to grant a preliminary injunction.  The Court talks about the lack of reasoning in the Ninth Circuit’s order:  “The Court of Appeals offered no explanation or justification for its order.”  (p3).  The Court also said that the only findings and analysis that it could rely on were those of the district court.

Second, the Court weighed in to some extent on the topic of voter fraud, saying that it “drives honest citizens out of the democratic process and breeds distrust of our government.” (p.3)  It even used the term “disenfranchisement” in explaining the significance of voter fraud:  “Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.”  (Ibid.)  While explicitly recognizing that this concern must be weighed against the possibility that a voter ID requirement would keep qualified voters away from the polls, the Court clearly put the avoidance of voter fraud into the constitutional calculus to be balanced alongside the potentially disenfranchising effect of a voter ID rule.

Third, it seemed important to the Court that the available evidence indicated that Arizona’s version of an ID requirement wouldn’t necessarily act as a barrier to qualified voters.  The Court pointed to the possibility of casting a conditional provisional ballot, supplemented afterward with ID.  “In addition any voter who knows he or she cannot secure identification within five business days of the election has the option to vote before election day during the early voting period.” (p.2)

Fourth, the Court also made clear that, by this particular order, it was not ruling on the ultimate merits of the validity of Arizona’s new voter ID law.   Indeed, as I read the order, the Court was also saying that was not even passing a definitive judgment on the correctness of the district court’s decision denying a preliminary injunction.  Rather, its only ruling was to say that the way in which the Ninth Circuit granted its own preliminary injunction, superseding the district court’s decision without any findings or reasoning of its own, was improper.  Indeed, the “error” that the Court explicitly identified was the Ninth Circuit’s lack of “deference to the discretion of the district court.” (p.4).

Finally, and likely most significant in the long term, was general language in the Court’s opinion about judicial intervention in a pre-election context.  “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.” (p.4)  This language is likely to have future ramifications in all varieties of pre-election lawsuits, not just those involving voter ID issues.