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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

The Voting Rights Act & Judicial Equity

A tentative thought, building on Rick Hasen's and Justin Levitt's analysis of how the equitable powers of the federal judiciary apply in the context of the new Texas voter ID ruling, in comparison to the recent equitably trilogy in SCOTUS (OH, NC & WI):
The Voting Rights Act as a statute specifically designed to alter the equitable powers of the federal judiciary in voting cases, potentially calls for a somewhat different inquiry than Purcell applied solely to Equal Protection claims.  Preclearance under the VRA is, arguably, Purcell-like presumption-against-change-in-voting-rules on steroids (and, to be sure, it applies not just to “last-minute” changes).  Thus, a judicial order that a state needs to be “bailed in” to preclearance raises, to my mind, additional equitable considerations under Purcell (along the lines of what Justin writes, but with a bit more emphasis on the VRA’s statutory structure). 
 One thing I haven’t thought through is a “last-minute” decision to “bail in” a state, which is arguably what yesterday’s Texas ruling is.  (I haven’t had a chance to study the decision.)  One might be able to make the argument—I don’t know—that a federal judge has a window of opportunity to make a bail-in ruling before a November general election (when was the bail-in request filed, etc?), but by mid-October the time for federal judicial alteration of the electoral status quo has passed.  From SCOTUS’s perspective, a kind of laches doctrine might apply to the exercise of a federal district judge’s discretionary exercise of equitable powers: don’t wait until Oct. 9 to write a 100+ opinion on what you’re doing for this November’s election; instead, any federal order affecting the state’s rules for this election should come earlier, even at the expense of reasoning in an opinion.  (look at SCOTUS’s own preference for speed over writing in OH, NC & WI).  
Finally, Justin wrote that he’s unaware of SCOTUS precedents dealing with last-minute equitable considerations in the context of intentional race discrimination in voting.  So am I, but I’d want to look back at the Warren Court’s handling of these sorts of cases in the 1960s, etc.   My impression from Reynolds v. Sims is that the Warren Court was sensitive about implementing new judicial rulings on the eve of an election, even when those rulings were designed to eradicate systemic biases in the electoral system.  (Obviously, Reynolds was a Equal Protection case, not a Fifteenth Amendment case.)  But it wouldn’t surprise me if in some circumstances the Warren Court delayed enforcement of an injunction to bar even a Fifteenth Amendment violation, depending on the timing and particular circumstances.  I’m certainly willing to stand corrected on what the Warren Court did (assuming it confronted this situation); I just think it’s worth investigating before determining how Purcell ought to apply to the Texas case.  And, again, the relevance of those Warren Court precedents would depend on whether they were pre- or post -VRA enactment, and thus the extent to which the VRA itself should be understood as a congressional adjustment in the structuring of the federal judiciary’s equitable powers.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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