Judge Clement, joined by Judges Brown and Costa (in judgment) have put on hold the district court’s order in the Texas Voter ID case. Citing Purcel v. Gonzales, the court aimed to avoid creating uncertainty so close before an election. The court cited the recent appeals to the Court from North Carolina, Ohio, and Wisconsin, as proof of this principle:
The Supreme Court has continued to look askance at changing election laws on the eve of an election. Just this term, the Supreme Court halted three Court of Appeals decisions that would have altered the rules of this fall’s general election shortly before it begins. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014); North Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL 5026111 (U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P., 14A336, 2014 WL 4809069 (U.S. Sept. 29, 2014).
The court discerns a pattern:
While the Supreme Court has not explained its reasons for issuing these stays, the common thread is clearly that the decision of the Court of Appeals would change the rules of the election too soon before the election date. The stayed decisions have both upheld and struck down state statutes and affirmed and reversed district court decisions, so the timing of the decisions rather than their merits seems to be the key.3 Moreover, Justice Alito’s dissent from the stay in Walker casts some light on the Court’s rationale: “There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted.” Frank, 2014 WL 5039671, at *1 (Alito, J., dissenting).
I will draw your attention to the concurring opinion of Judge Costa, who seemed troubled by the law, but felt bound by the Court’s three recent decisions involving North Carolina, Ohio, and Wisconsin, which maintain the status quo before an election:
GREGG COSTA, Circuit Judge, concurring in the judgment:
The district court issued a thorough order finding that the Texas voter ID law is discriminatory. We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory. As always, however, we must follow the dictates of the Supreme Court. In two recent decisions, it stayed injunctions issued based on findings that changes in an election law were discriminatory. See North Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL 5026111 (U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P., 14A336, 2014 WL 4809069 (U.S. Sept. 29, 2014). It also lifted the Seventh Circuit’s stay of a district court’s order in place since the spring that enjoined Wisconsin’s voter ID law. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014). I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court’s recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis. The injunction in this case issued even closer in time to the upcoming election than did the two out of the Fourth and Sixth Circuits that the Supreme Court recently stayed. On that limited basis, I agree a stay should issue.
I think this is effectively the votes of Justices Breyer and Kagan, who voted for a stay, but likely won’t vote for North Carolina on the merits.