I know one of the attorneys representing the good guys in the Texas voter id case which is scheduled for oral arguments on April 28. The attorneys representing Texas plaintiffs did not want the ACLU to seek cert. in the Wisconsin case. The Texas case is a stronger case. The DOJ is a party in the Texas case and there are express findings of fact as to intentional discrimination in the Texas case.
Here are Prof. Hasen's observations http://electionlawblog.org/?p=71186
This morning the Supreme Court without comment refused to take up Frank v. Walker, the Wisconsin voter id case. Taking the case to the Supreme Court divided the civil rights community. As I noted last week, those who hoped the Supreme Court would hear the case were betting that Chief Justice Roberts or Justice Kennedy were going to have the same kind of epiphany that Judge Posner of the 7th Circuit had. Judge Posner had voted to uphold Indiana’s voter id law back in the mid-2000s when it was challenged. Judge Posner saw the requirement as no big deal. But by last year, Judge Posner was writing that such laws have now been generally recognized as a means of suppressing likely Democratic votes than as a means of fraud prevention. (The evidence that such laws deter any significant amount of impersonation voter fraud is thin indeed.) But it is not clear that Kennedy and Roberts, the conservative Justices likely in the middle of the Court on this issue have had a similar religious conversion on the issue. The four liberals could have forced a hearing in this case (by voting to grant cert) but they must not have been confident of the religious conversion either. Similarly, DOJ has done very little to support this case. They are betting on Texas (and to some extent North Carolina), hoping those cases will be better vehicles for getting voter id laws struck down. But relying on Texas to ultimately help Wisconsin is risky. CIn the Texas voter id case, now pending before the 5th Circuit, we have a holding that Texas’s passage of the voter id law was the product of intentional racial discrimination. That’s a finding which should be very hard to reverse on appeal. it provides an easier constitutional path for the Supreme Court to strike down Texas’s voter id law. The upside of that would be a Supreme Court decision striking down a voter id law on constitutional grounds. The downside is that other cases, like Wisconsin, do not involve intentional discrimination and so a Texas holding might not help very much outside of Texas. It would be an outer bound of what’s allowed and forbidden.
Had the Court agreed to hear the Wisconsin case, it is possible it would have read Section 2 of the Voting Rights Act even more narrowly in cases of vote denial, as well as make bad law on the scope of the equal protection clause. In this way, the Court’s refusal to hear Wisconsin’s voter id case may be a blessing in disguise. As I’ve long argued, the best way for liberals to cut their losses is to stay out of the Supreme Court when possible. Things could have been worse if the Court took Wisconsin than if they didn’t. And if you trust Justice Ginsburg, trust her her in not voting to grant cert in this case.
I think that the Texas case is the stronger case and would be a better case to reach SCOTUS
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