April 09, 2007

Crawford, and the Partisan Affiliation of Judges Deciding the Voter Identification/Election Administration Cases, with a Note on Wikipedia

When the Seventh Circuit first decided Crawford v. Marion County Election Board, upholding Indiana's voter identification law against a constitutional challenge on a 2-1 vote, I asked the following question: "In the face of little evidence of either voter fraud or voter burden, does resolution of this case turn on whether the judge is a Democrat or a Republican?" The sad answer looking at the panel vote appeared to be yes. My argument was not that these judges were consciously voting for a position that would benefit their favored political party at the polls. Rather, "I am arguing that in the face of a paucity of evidence, the judges may be swayed by beliefs that seem to correlate with those who are members of their party. Judge Posner's majority opinion, for example, goes out of its way both to minimize the extent to which this law is likely to burden voters and to suggest (without any real evidence) that there's a great deal of impersonation vote fraud going on out there that is not easily detected. Judge Evans, in dissent, is the mirror image. He's greatly bothered by what he sees as the potential for voters to be disenfranchised (pointing to some suggestive anecdotes), while dismissing concerns about vote fraud as unsupported by the evidence."

Unfortunately, as I document here, this pattern persists in a host of post-Bush v. Gore election administration cases.

Now we can see that the pattern holds as well in the decision whether or not to take the Crawford case en banc. According to Wikipedia, of the 11 active judges on the Seventh Circuit, 8 were appointed by Republican presidents and 3 by Democratic president Bill Clinton. The three Democratic appointees all voted to take the case en banc to reconsider the constitutionality of the Indiana voter identification law. Seven of the eight Republican appointees all vote against taking the case en banc. Only Judge Rovner, an appointee of George H.W. Bush, does not fit the pattern. She voted with the three Democratic appointees to take the case.

This trend is troubling but unfortunately not unexpected.

By the way, though I think it is appropriate now and again to cite to Wikipedia on a minor point in a blog post, I thought it quite odd that the judges dissenting from denial of en banc rehearing in Crawford did so three times for propositions that certainly could have been supported by more stable news sources available on Lexis or Westlaw easily found by their clerks: "Recent national election history tells us, to the contrary, that disenfranchising even a tiny percentage of voters can be enough to swing election outcomes. Christine Gregoire captured the gubernatorial race in Washington State in 2004 with a margin of only 129 votes. See http://en.wikipedia.org/wiki/Washington_gubernatorial_election,_2004 (visited March 22, 2007). Representative Vern Buchanan of Florida's 13th Congressional District won by only 329 votes. See http://en.wikipedia. prg/wiki/Florida%27s_13th_congressional_district (visited March 22, 2007). Senator Jon Tester of Montana won his seat by a slightly larger margin--2,847 votes--but hardly a gap that implies that small numbers do not matter. See
http://en.wikipedia.org/wiki/Jon_Tester (visited March 22, 2007)."

Posted by Rick Hasen at April 9, 2007 04:36 PM