Will the Photo ID Mess Be Repeated in 2016 or Resolved by Supreme Court?

As we find ourselves smack dab on the 50th anniversary of the Bloody Sunday march for voting rights in Selma, Alabama, there are some key decisions from the U.S. Supreme Court, coming very soon, which may well determine whether millions of otherwise lawfully registered and disproportionately Democratic-leaning African-American and Hispanic voters will be prevented from voting in the 2016 elections.

The decision that emerges from the Supreme Court’s March 20, 2015 Conference in the Wisconsin polling place photo ID case, Frank v. Walker, could well be dispositive in that regard. It also may be the last chance to avoid the legal chaos that plagued the 2014 elections, during which similar voting restrictions, in state-after-state, were implemented, struck down, restored, or, with respect to Wisconsin, blocked again. Where, last year, the Court’s eleventh hour decisions preserved the right to vote in Wisconsin, that same Supreme Court, on the eve of the 2014 mid-term, eliminated the right to vote for hundreds of thousands of predominantly African-American and Hispanic voters in Texas and North Carolina. The failure of the Supreme Court to take up the issue now could produce an even darker cloud of doubt over the integrity and legitimacy of the 2016 Presidential Election.

The immediate issue now before the Court is not whether SCOTUS agrees with a U.S. District Court judge and half the judges on the 7th Circuit Court of Appeal that WI’s law (aka Act 23) is both unconstitutional and violative of Section 2 of the Voting Rights Act. As those judge found, Act 23, if implemented in the Badger State, could disenfranchise more than 300,000 lawfully registered Wisconsin voters.

Rather, the immediate issue at the March 20 Conference is whether the Supremes will grant an ACLU petition for a writ of certiorari (aka “cert petition”) and schedule oral arguments on the Constitutionality of the Republican-enacted law. Or whether, as urged by the attorneys representing WI’s Republican Governor Scott Walker, the Court will defer its decision until similar legal challenges to strict photo ID laws in other states, such as North Carolina and Texas, wind their way through the trial and appellate courts.

In other words, do they hear the Wisconsin case now, as urged by the ACLU and other voting rights advocates? Or do they wait to combine the matter with several other challenges to substantively identical voting restrictions implemented by Republicans in other states, as urged by one of the men who stands to benefit from delaying such a decision as long as possible?

That decision whether to hear the case now, rather than later, may well have a huge impact on who will serve as the next President of the United States…

2016 starts now

While the concurrence of only four (4) of the Court’s nine (9) Justices will result in the granting of a cert petition, a grant of cert at this stage is by no means assured. Because there are only so many cases the Supreme Court can handle each year, the right to have a case heard by the Supreme Court is reserved for those cases that involve compelling issues that are of national significance or cases where there is a disagreement amongst the various courts of appeal. Between June 30, 2011 and July 2, 2012, for example, less than one percent of the cert petitions (63 out of 7,654) were disposed of by way of a grant of cert, followed by oral arguments.

In order for there to be clear resolution on these types of laws prior to the beginning of the 2016 primary and general election cycle, the Court would need to look at Wisconsin’s case now, rather than wait for similar laws in other states to make their way up through the lower courts.

That is why the upcoming March 20 Conference represents a monumental moment for the preservation of the right of all eligible citizens to weigh in on vital political questions on their 2016 ballots, including who will serve as the next President.

In a Reply Brief that U.C. Irvine Law Professor Rick Hasen praised as offering “a good and important timing point,” the ACLU forcefully argues that the Court should grant its cert petition because the Frank v. Walker “case is the only vehicle that guarantees the Court an opportunity to address the constitutional and statutory questions surrounding restrictive voter ID laws before the 2016 presidential election.”

The ACLU’s brief explains the urgency this way…

Wisconsin admits that this case is “procedurally far ahead of the cases from Texas and North Carolina”…In Texas, Fifth Circuit briefing will continue through mid-March, followed by oral argument, a panel decision, and possibly a petition for rehearing…North Carolina is even farther behind; trial is not scheduled to begin until July…There is no guarantee that this Court could consider either case before the end of the October 2015 Term.

Postponing consideration of these issues…would tangibly harm hundreds of thousands of Wisconsinites and millions of other Americans. On issues of profound national importance affecting large numbers of citizens in multiple states, this Court need not wait for issues to percolate, especially when, as here, lower court decisions already reflect significant disagreement. Wisconsin is wrong that the Texas case – which is still being briefed in the Fifth Circuit – is a “superior candidate for review”…It is irrelevant that Texas has enforced its law “since November 2013″…Whenever possible, courts should resolve challenges to discriminatory election laws before states enforce those laws in elections. Moreover, the record already reflects Act 23’s “impact, if any, on voter turnout”…Wisconsin’s own expert agreed at trial that Act 23 “is likely to suppress voter turnout in the State of Wisconsin”…This conclusion is confirmed by Plaintiffs’ expert, numerous studies concerning other states’ voter ID laws, and a recent report by the Government Accountability Office…[Emphasis added].”

Relying heavily upon the scathing dissent authored by the conservative and revered 7th Circuit Court of Appeals Judge Richard A. Posner, and bolstered by the filing ofnine (9) separate amicus curiae (friend of the court) briefs submitted by civil rights organizations, the ACLU, in its Petition for a Writ of Certiorari [PDF] presented factual and legal reasons why the Court should do more than simply uphold the District Court’s decision striking down Wisconsin’s photo ID law.

Both the ACLU and Posner, a Reagan appointee and author of the 7th Circuit photo ID decision that was upheld by the Supreme Court in Crawford v. Marion County Election Board (2008), argue that all strict polling place photo ID laws should be struck down because they unconstitutionally abridge the right to vote.

In his landmark dissent in the Wisconsin case, you may recall, Posner meticulously dismantled GOP claims that photo ID restrictions are needed to combat “voter fraud.” He wrote that “voter fraud” claims served as “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”

Posner then added:

There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.

The effort by Walker, now a leading GOP candidate for President, to fight to delay a SCOTUS decision on his state’s law, is especially ironic. Last year, the Court prevented Wisconsin’s incumbent governor from gaining unfair advantage when, on Oct. 9, 2014, by way of a 6-3 decision (Justices Alito, Scalia and Thomas dissenting), the U.S. Supreme Court issued an Order [PDF] that vacated a 7th Circuit stay on the lower District Court’s decision to block enforcement of Wisconsin’s “unconstitutional” photo ID law.

By contrast, in what we described as “a dark day for democracy,” that same Supreme Court, without pointing to any legal errors on the part of the District Court, lifted a permanent injunction of the very similar Texas statute – a stay which risked disenfranchised more than 600,000 Texas voters during the 2014 election. In a 147-page ruling, U.S. District Court Judge Nelva Gonzales Ramos had expressly found that the TX law “creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose” – racially motivated, voter suppression.

After blocking the WI law from being implemented last year, the Supremes allowed an almost identical voting restriction to be used in the 2014 election in TX.

Both of those seemingly conflicting decisions were issued by SCOTUS simply because the stay of the injunction in the Wisconsin case, and the imposition of an injunction in the Texas case, were issued within weeks of the 2014 election. In the Court majority’s view, those eleventh hour changes in state election laws created a risk of confusion and chaos at the polls in each state.

That point underscores the importance of ensuring that the Court address these monumental questions as soon as legally feasible to prevent similar last-minute confusion, chaos and, not incidentally, a hollowing out of democracy that would come with the unnecessary disenfranchisement of millions of otherwise eligible voters in the many states where strict GOP photo ID laws have now been enacted.

If the nation is to avoid another Photo ID law roller coaster similar – and worse – than the one we all rode during the lead up to the 2014 election, the Supreme Court needs get this done now, rather than later. The Wisconsin case offers the opportunity to do exactly that.

The Court’s decision to grant cert, or not, will likely come before the end of this month.