April 06, 2007

Follow-up on Crawford: Should Opponents of Voter Identification Laws Want Plaintiffs to Petition for Cert. in the Supreme Court?

Yesterday I wrote that I thought the Supreme Court would be likely to take Crawford, the Indiana Voter identification decision if the plaintiffs petitioned for cert. Marcia Oddi thinks plaintiffs are likely to do so. I also suggested in my post yesterday that this may not be the best case for voter i.d. opponents to take to the Supreme Court.

Why not? I've suggested that the Court should take the case to correct its own errors in Purcell v. Gonzales, as well as to mitigate the influence of Judge Posner's troubling majority opinion in Crawford. But there are two dangers, one general and one specific to Indiana. The general point is the one made by Dan Tokaji: "I hope that this case won't wind up before the Supreme Court, as I'm concerned that this could do greater damage to the equal protection law in this area." I too have been pessimistic about the new Roberts' Court protection of voting rights, but it is not clear that things would be worse than they already are with an affirmance in Crawford. And it is possible a Justice such as Justice Kennedy could be concerned enough about the Judge Posner opinion to put some limits on it, and on the use of voter id without any proof of voter fraud.

The specific issue is whether the record in the Indiana case is sufficiently strong. First, Indiana has an indigency exemption (though not a generous one, as I have written). A stronger case might challenge a state whose law lacks such an exemption. Second, there is a question whether the plaintiffs presented a strong enough case on the evidence that the Indiana law would actually burden many voters. The district court and 7th Circuit opinions make it seem as though there is very little evidence. I plan to look into this more, by examining some of the district court documents.

Aside from the interest of opponents of voter id laws, would it be good as a matter of election administration for the Court to take Crawford? Chris Elmendorf thinks not, as he'd rather let the issues percolate in the lower courts for a while first.

Ordinarily, I agree with such a sentiment; indeed, I devoted a chapter of my book to the idea that the Court should initially leave election law standards murky, allowing for lower courts to explore various ways of structuring equal protection rights in the election law area. But I've come to believe that in the area of election administration, where the stakes are so high and the results immediately obvious, there is not time for such percolation. The Court needs to provide clarity, especially after its very bad opinion in Purcell.

There is one other possibility in terms of a cert grant. It might be that the Burdick/standard of scrutiny issues get clarified in the Washington state party primary case being heard by the Court next term. So Crawford might end up a case granted, vacated and remanded in light of that case under the Burdick standard.

Posted by Rick Hasen at April 6, 2007 12:26 PM