It is easy to think of the Supreme Court's surprise decision last week, allowing Arizona to implement its new voter-identification law temporarily, as just another smackdown of the 9th Circuit Court of Appeals. The real significance of Purcell v. Gonzalez, however, lies not in the Supreme Court's rebuke of the 9th Circuit, but in the signals it sends courts about how to handle election-law cases, especially those filed close to an election. And from that perspective, this small case is a potential disaster that may undo some of the unintended good consequences resulting from Bush v. Gore, the 2000 decision ending the presidential election controversy.
Arizona voters adopted a new voter-identification law in 2004 as part of Proposition 200—a measure aimed at the problem of illegal immigration. Among other provisions, the law requires those who vote in person to produce either a photo identification, or two other pieces of identification, showing the voter's name and address. A coalition of voting-rights organizations filed a complaint alleging that the law violated federal election laws and the U.S. Constitution. A federal district court, without providing any reasoning, denied their request to delay implementing the law pending a full trial on the issues in the case. The 9th Circuit, also without providing any reasoning, reversed that decision, temporarily halting the voter-identification requirements (as well as its voter-registration requirements). The trial court then belatedly issued its statement of reasons for denying the order.
The state of Arizona then asked Justice Kennedy, who has jurisdiction over emergency appeals from the 9th Circuit, to stay the 9th Circuit's decision. The entire Supreme Court, in the legal equivalent of a lightning bolt, treated this as a request to hear the whole case on its merits, granted it, and then reversed the 9th Circuit in a surprise six-page per curiam (unsigned) opinion late Friday afternoon.
The court acknowledged big constitutional issues on both sides of the voter-identification question:
Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. ... Countering the State's compelling interest in preventing voter fraud is the plaintiffs' strong interest in exercising the 'fundamental political right' to vote. … Although the likely effects of Proposition 200 are much debated, the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs' challenges.
The court also signaled its disfavor with last-minute court interventions in the electoral process: "Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase." The court seemed especially concerned that the 9th Circuit gave no reasons for its decision to reverse the district court and stay implementation of Arizona's voter-identification law. The court did not stop to consider that its own eleventh-hour reversal of the 9th Circuit order "could confuse both poll workers and voters on Election Day."
At first glance, the Purcell opinion seems reasonable enough. Here was the closely divided Supreme Court issuing a unanimous decision in its first election-administration case since the 5-4 ruling in Bush v. Gore. The court in Purcell was careful to note that nothing had been decided yet in the lower courts with finality, and that courts of appeal should not lightly overturn district-court election-law orders just before an election because such conduct runs the risk of voter confusion. Moreover, the 9th Circuit's actions are hard to defend absent some indication from that court as to its reasoning.
Had Justice Kennedy simply issued a short order reversing the 9th Circuit, therefore, Purcell would have been no big deal. But it is the opinion of the court that is so troubling, both for future courts examining voter-identification laws and for future election-related litigation generally.
First, the Supreme Court in Purcell is guilty of sloppy empiricism that could unfairly derail other cases challenging state voter-identification laws. Across the country, voter-identification laws have become a partisan mess: Republican-dominated legislatures have been enacting voter-identification laws in the name of fraud prevention, and Democrats have opposed such laws in the name of protecting potentially disenfranchised voters. Courts have thrown out voter-identification laws in Georgia and Missouri, and the 7th Circuit is currently considering a decision upholding Indiana's voter-identification law.
There are two basic empirical questions for the courts to sort out in these cases. First, is there enough evidence of impersonation fraud (where someone shows up at the polls and falsely claims to be a voter registered to vote there) to justify such laws, which no doubt place some burden on the right to vote? Second, how onerous are such laws? On the fraud question, there is no good empirical evidence of systematic fraud in the casting of votes that a state voter-identification card would do much to prevent. Most instances of fraud have involved voting by absentee ballots, and these laws have exempted precisely such absentee ballots from voter-identification requirements.
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Too bad it’s almost certainly unconstitutional.