Friday, October 26, 2012
The TN court of appeals has issued
a ruling in the Memphis voter ID case.
This opinion upholds the voter ID
statute against a state constitutional challenge, but is better written and corrects
several of the errors in the trial court opinion.
The TN AG has already stated he will appeal. The ruling allowed Memphis library cards to be used as photo IDs
for voting purposes, which is a reasonable construction of the statute, based on
the plain meaning, case law, and public policy. Plaintiffs have not said if
they will appeal.
The opinion at least purports to apply strict scrutiny. It
considers challenges based on free and equal elections, and qualifications
clauses, poll taxes, and undue burden, but rejects each.
The opinion borrows from voter ID cases in AZ, IN, MI, and
MO, although there is no mention of the WI, TX, PA, or SC cases. It erroneously
relies on these cases even when they were reached under a more permissive
standard of review, or a different set of facts.
The court concludes, correctly, that plaintiffs had
standing. However in note 17 it finds that they did not have standing to reach
the issue of student IDs, since plaintiffs are not students. This is an error.
The harm contemplated in a free and equal elections case is not just whether
plaintiffs get to vote, but whether everyone (entitled to do so) gets to vote,
so that plaintiffs are not deprived of a free and equal election, and their
votes are not diluted.
It is to be hoped that plaintiffs will promptly appeal, and
request a stay of the statute.
Appropriate preliminary relief would be for those without ID
to cast provisional votes, but have those votes counted in the absence of
specific evidence of fraud. The TN Supreme Court may not want to do anything this close to the election, but it doesn't hurt to ask.
Of the appellate court's decision, Barrett said on Thursday, "We won half of it, and we lost
half of it."
He called the ruling a victory for the city of Memphis, but also said "we are considering our options now."
He too may take his cause to the state Supreme Court. "We've got 30 days to decide that. We haven't given up the fight on the unconstitutionality of the statute," he said.
Anyone interested in helping with an amicus?
Of the appellate court's decision, Barrett said on Thursday, "We won half of it, and we lost
half of it."He called the ruling a victory for the city of Memphis, but also said "we are considering our options now."
He too may take his cause to the state Supreme Court. "We've got 30 days to decide that. We haven't given up the fight on the unconstitutionality of the statute," he said.
Anyone interested in helping with an amicus?
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