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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Free & Fair

The Arizona Voter ID case in the Supreme Court: What's Next?

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October 16, 2006

Justice Kennedy has asked the plaintiffs to respond, by 4pm today (Monday, October 16), to the State of Arizona's application for a stay of the Ninth Circuit's preliminary injunction in this case. After receiving this response, he could grant or deny the stay, give the State the opportunity to reply to the plaintiffs' response, or turn the matter over to the full Supreme Court.

After Bush v. Gore, it is hazardous to predict what the Supreme Court, or individual Justices, will do with respect to emergency stay applications in election cases. In 2000, most observers predicted that the Court would not grant then-Governor Bush's application to stop the Florida recount over the weekend, before the Court heard oral argument on Bush's constitutional challenges to recount (which occurred Monday, December 11). But on Saturday, December 9, by a 5-4 vote, the Court did grant a stay, which prevented any recounting to occur while the Court considered the merits of the constitutional claims.

Having now looked at Arizona's stay application in the voter ID case, without yet having the benefit of plaintiff's response, one fact jumps out as potentially relevant: Arizona does not require ID to vote "early" at home using a mail-in ballot, and it permits any registered voter to choose this form of voting (which is sometimes called "no excuse absentee voting" because the voter need not provide any reason for exercising this option). Quite apart from whether this fact ultimately affects the merits of the plaintiffs' challenge to the lawfulness of the state's ID requirement (limited to polling place voting on Election Day), it would seem to affect the urgency of the State's interest in overturning the Ninth Circuit's order. How horrible would it be to have polling place voting occur on November 7 without enforcement of the new ID requirement, if voters can already vote in this very same election without complying with the ID requirement as long as they do so from the convenience of their kitchen or living room?

In other words, even if the State's new ID law is valid, it seems that the State can wait one more election before being able to enforce the law, since so many voters will already vote this year without presenting ID simply by exercising the at-home early voting option. This is not to say that the Ninth Circuit was correct to block enforcement of the new ID law, especially after the district court refused to do so. But it is a reason to think that Justice Kennedy, or the full Supreme Court, might consider it unnecessary to overturn the Ninth Circuit's order.