From the Court this afternoon:
14A336 HUSTED, OH SEC. OF STATE, ET AL. V. NAACP, ET AL.
The application for stay presented to Justice Kagan and by her referred to the Court is granted, and the district court’s September 4, 2014 order granting a preliminary injunction is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application for stay.
Coverage from Lyle Denniston can be
found here.
Professor Hasen's analysis can be found here.
Front page coverage from Laura Clawson is here.
The district court's opinion in this case came to what I thought was one fairly uncontroversial conclusion: Section 2 of the Voting Rights Act is violated when a state or locality adopts a law or practice has "a discriminatory effect on members of a protected group." (emphasis mine) That is, it is not necessary to prove a discriminatory intent if the results or effects are discriminatory. Thus, while there is no right to early or absentee balloting, or early or absentee balloting in any particular form, in Ohio or elsewhere, once that right is extended, it cannot be taken away if taking it away would have a discriminatory impact.
Applying that law to the facts of this case, it found that the combination of revoking "Golden Week," (registration and casting ballots at the same time) and limiting the extended and Sunday early-voting hours would have a discriminatory impact on African-Americans. The factual review was painstaking. Given this law and these factual findings, the District Court enjoined the law. Given this level of detail, overturning this kind of nuanced decisionmaking on appeal should be almost impossible.
[Caveat: I'm not as convinced of the viability of the judge's equal protection constitutional analysis, but only one successful viable theory was needed].
The Sixth Circuit agreed and last Wednesday, upheld the district court's injunction, on both the Section 2 and Constitutional grounds.
Today, the Supreme Court, failing to heed its own recent and unanimous admonition that it should not change the 'rules' of an election so close to when it begins, has stayed the District Court's ruling.
The vote was 5-4, dividing along traditional ideological lines. All four of the Court's conservatives and one of the five moderates voted for the stay. The remaining four moderates voted against the stay. Specifically, the lineup was:
Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Alito, voting to issue the stay.
In dissent, against the stay, were Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan.