The court looks like it’s fine-tuning the rules for the 2014 election. | John Shinkle/POLITICO SCOTUS leaves mark on midterms

The Supreme Court sure looks like it’s fine-tuning the rules for the 2014 election.

Over the past three weeks, the justices gave Ohio the green light to cut early voting by a week, let North Carolina end same-day voter registration and blocked Wisconsin from implementing a new voter ID law.


And the justices could soon face another request, one that asks them to step in to block a Texas voter ID law from being enforced in next month’s elections.

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Despite the flurry of high court rulings, many legal analysts and some judges say the Supreme Court’s actions are less about broad voting rights principles than telling federal judges to butt out, particularly so close to Election Day. In each of the cases where the justices acted, lower federal courts had issued orders that would have changed the rules for elections just weeks away, potentially causing confusion among voters and election officials.

“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 ,” 5th U.S. Circuit Judge Edith Clement wrote Tuesday as her court voted to allow Texas to enforce its new voter ID law.

“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,” Clement added.

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The high court justices who joined in the court’s actions on such emergency stays don’t typically explain the reasoning behind the moves. Sometimes the justices who disagree share their reasons, but that’s only moderately helpful in figuring out why the other justices came to the opposite conclusion.

“My strong guess is that, given the practicalities, they’re worried about last-minute voter confusion,” said Ohio State University professor Dan Tokaji.

The tightening of election laws in all the states in question was pursued by Republican-led legislatures and objected to by Democratic and civil rights groups, who insisted it would disenfranchise minorities.

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Only the Ohio case produced a clearly partisan split on the Supreme Court, with the five GOP appointees voting to allow the state to cut back early voting by a week and the four Democratic appointees preferring to leave in place an appeals court order barring the change.

The North Carolina case, focusing on same-day registration and out-of-precinct voting, resulted in seven justices overturning an appeals court’s ban on eliminating those accommodations. Two Democratic appointees widely considered the high court’s most liberal, Justices Ruth Bader Ginsburg and Sonia Sotomayor, dissented. They noted that the appeals court found that ending those two voting practices “risked significantly reducing opportunities for black voters to exercise the franchise.”

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On the Wisconsin voter ID case, the high court split 6-3, producing the first result this cycle in which the justices essentially blessed a lower court order barring enforcement of one of the new election laws. Chief Justice John Roberts and Justice Anthony Kennedy, both GOP appointees, joined with the court’s liberals to restore the district court’s ban on enforcement of the new voter ID requirements in the coming election.

“The most plausible explanation is that the 7th Circuit’s action was extremely disruptive and they realized that the 7th Circuit reinstating this voter ID rule so close to an election was inviting disaster and going to result predictably in a lot of people not being able to have their votes counted,” Tokaji said.

Even the three justices who dissented from the high court’s decision to re-block the Wisconsin voter ID law said they were disturbed by the fact that some absentee ballots were mailed without informing recipients that they needed to submit photo ID in order to make their votes count.

“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,” Justice Samuel Alito wrote, on behalf of Justices Clarence Thomas and Antonin Scalia. The trio said, however, that such an indication wasn’t enough of a basis to overturn what the appeals court did on the stay.

The Wisconsin order turned heads in large part because Roberts, the architect of the Supreme Court’s landmark 2013 decision striking down a key part of the Voting Rights Act, agreed to restore the injunction against voter ID.

While Roberts is far from being a swing justice, conservatives have increasingly viewed him as wobbly since he voted to uphold Obamacare’s individual mandate in 2012. He showed a flash of moderation again Tuesday as he joined Kennedy and the court’s liberals in a ruling reinstating a judge’s ban on a Texas law imposing tougher standards on abortion clinics.

Still, election law experts say they doubt Roberts is changing his stripes on voting rights issues.

“I don’t think he’s wobbly,” said University of California at Irvine law professor Rick Hasen. “When we get to the voting rights issue on the merits, I expect him to read [the law] very narrowly not to protect voting rights for minorities in a broad and inclusive way.”

Many lawyers say the Supreme Court’s actions flow from a 2006 ruling, Purcell v. Gonzalez, which greenlighted an Arizona voter ID law that the 9th Circuit had blocked shortly before the election.

“Purcell was a warning to federal courts not to jump in at the last minute,” said Michael Carvin, a top Justice Department official during the Reagan administration.

Lawyers on both sides of the issue said they expect the Supreme Court to take an election procedure case on the merits in the next year or two, perhaps offering greater guidance on what kinds of limits violate the remaining provisions of the Voting Rights Act.

The Supreme Court last considered the voter ID issue in depth in 2008, when the justices voted 6-3 to uphold an Indiana law requiring photo IDs to vote. However, the case focused on whether the practice violated the Constitution and didn’t directly decide whether the statute might run afoul of the Voting Rights Act.

There are also factual differences that make it unclear how to apply the Indiana precedent. Voter ID laws also are not identical from state to state and could result in more people being denied the right to vote when valid IDs are harder or costlier to acquire or when the impact on minorities is particularly acute.

While there’s little indication that Supreme Court justices have changed their basic views on voter ID, recent attention to the subject has led one prominent Republican-appointed judge to do an about-face.

Judge Richard Posner, a Reagan appointee on the 7th Circuit, joined with four of his colleagues who called unsuccessfully for that appeals court’s full bench to rehear the case over the Wisconsin voter ID law.

Posner’s stance was notable because he was on the 7th Circuit panel that voted, 2-1, in 2007 to uphold the same Indiana law the Supreme Court upheld the following year. The judge said in interviews last year that he thought he’d gotten the case “wrong,” but he said it was due to the judges having insufficient information about the impacts of the ID requirements.

In an opinion released Friday, Posner savaged the voter ID effort as driven in significant part by delusional fears of organized voter fraud.

“Some of the ‘evidence’ of voter impersonation fraud is downright goofy, if not paranoid, such as the nonexistent buses that according to the ‘True the Vote’ movement transport foreigners and reservation Indians to polling places,” the judge wrote. “Even Fox News, whose passion for conservative causes has never been questioned, acknowledges that ‘Voter ID Laws Target Rarely Occurring Voter Fraud,” he added, quoting a web headline.

Posner also dismissed arguments that judges should defer to Wisconsin lawmakers’ finding that enhancing ID requirements would promote public confidence in electoral integrity.

“As there is no evidence that voter impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?” he asked.

Carvin said Posner’s reversal on voter ID doesn’t signal that other Republican appointees on the Supreme Court or on the broader federal bench are engaged in some reappraisal of the legal merits of such measures.

“Posner is going to do what Posner does on this issue,” said the former DOJ official, now with law firm Jones Day. “It doesn’t make Posner into a conservative, and it sure doesn’t reflect a conservative rethinking about anything.”