Brakebill v. Jaeger

Cite as: 586 U. S. ____ (2018) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
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No. 18A335
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RICHARD BRAKEBILL, ET AL. v. ALVIN JAEGER,
NORTH DAKOTA SECRETARY OF STATE
ON APPLICATION TO VACATE STAY
[October 9, 2018]
The application to vacate the stay entered by the United
States Court of Appeals for the Eighth Circuit on Septem-
ber 24, 2018, presented to JUSTICE GORSUCH and by him
referred to the Court, is denied. JUSTICE KAVANAUGH took
no part in the consideration or decision of this application.
JUSTICE GINSBURG, with whom JUSTICE KAGAN joins,
dissenting from denial of the application to vacate stay.
I would grant the application to vacate the Eighth Cir-
cuit’s stay because last-minute “[c]ourt orders affecting
elections, especially conflicting orders, can themselves
result in voter confusion and consequent incentive to
remain away from the polls.” Purcell v. Gonzalez, 549
U.S. 1, 4–5 (2006) (per curiam). The risk of voter confu-
sion appears severe here because the injunction against
requiring residential-address identification was in force
during the primary election and because the Secretary of
State’s website announced for months the ID require-
ments as they existed under that injunction. Reasonable
voters may well assume that the IDs allowing them to vote
in the primary election would remain valid in the general
election. If the Eighth Circuit’s stay is not vacated, the
risk of disfranchisement is large. The Eighth Circuit
observed that voters have a month to “adapt” to the new
regime. But that observation overlooks specific factfind-
ings by the District Court: (1) 70,000 North Dakota resi-
2 BRAKEBILL v. JAEGER
GINSBURG, J., dissenting
dents—almost 20% of the turnout in a regular quadren-
nial election—lack a qualifying ID; and (2) approximately
18,000 North Dakota residents also lack supplemental
documentation sufficient to permit them to vote without a
qualifying ID. Although the unchallenged portion of the
injunction permitting the use of more informal supple-
mental documents somewhat lessens this concern, that
relief, by itself, scarcely cures the problem given the all too
real risk of grand-scale voter confusion. True, an order by
this Court vacating the stay would be yet another decision
that disrupts the status quo as the election draws ever
closer. But the confusion arising from vacating the stay
would at most lead to voters securing an additional form of
ID. That inconvenience pales in comparison to the confu-
sion caused by the Eighth Circuit’s order, which may lead
to voters finding out at the polling place that they cannot
vote because their formerly valid ID is now insufficient.