April 05, 2007

Is Crawford, the Indiana Voter Identification Case, Likely to Be Heard by the Supreme Court?

As I suspected, the long delay in the 7th Circuit's decision whether or not to take the case en banc was due to the preparation of an opinion by a minority of the circuit's judges dissenting from the court's denial of rehearing en banc (information via How Appealing). The original opinion is here. I have posted the dissent by Judge Wood, joined by Judges Rovner, Evans, and Williams here.

As I've written, I'm not sure this is the best case for voter identification opponents to try to take to the Supreme Court. If the plaintiffs petition for certiorari to the U.S. Supreme Court, however, the Court could well take the case, for a few reasons.

First, the dissent from denial of rehearing en banc raises an important, difficult question in election law that extends beyond voter id issues: the appropriate level of scrutiny to use to apply to garden variety election laws. The majority's interpretation of the Burdick standard is troublesome, for reasons the dissent points out. Chris Elmendorf and others are doing some interesting work on this question.

Second, as I've argued in The Untimely Death of Bush v. Gore (now forthcoming, volume 60 of the Stanford Law Review), Judge Posner's majority opinion is very troubling, and will have negative ramifications beyond the area of voter identification laws. He really belittles the right to vote in an unprecedented way.

Third, as I argue in the same piece, the Supreme Court has already made a mess of voter identification law in its recent Purcell v. Gonzales case. This would provide an opportunity for the Court to fix some of the problems it created with that opinion.

Finally, there is a great deal of actual and anticipated litigation over the constitutionality of voter identification laws. The Court could provide much-needed guidance in this area.

So I think the Court is likely to take the case if the plaintiffs decide to petition for cert.

Posted by Rick Hasen at April 5, 2007 11:54 AM