May 16, 2007

Breaking News: Plaintiffs to File Cert Petition in Crawford, the Indiana Voter ID Case; Why the Supreme Court Should Take the Case

Via email comes news that the ACLU-represented plaintiffs, and the Indiana Democratic Party, will be filing separate but complementary cert petitions in the litigation challenging 7th Circuit opinion in the Indiana photo ID law. I recently posted on the election law listserv some thoughts on why this case is certworthy. Here are my thoughts:

    ...I think there are a few reasons why the Supreme Court should grant cert in Crawford, should plaintiffs decide to petition for it:

    1. Error correction. Judge Posner's opinion is at best sloppy, and at worst pernicious, in its treatment of empirical evidence and how it bears on this controversy (even under a relatively low standard of review). Given Judge Posner's reputation, this opinion is likely to have ill effects far beyond the Seventh Circuit. Taking the case will also give the Court a chance to correct its own errors as to the proper balancing in voter id cases that it set forth in Purcell v. Gonzalez. (I make both of these arguments in great detail here so I won't rehash them now.) Though error correction is not a usual reason for the Court to take a case, voter id controversies are going to continue to attract great attention and controversy as they are passed by legislatures and decided by the courts. The Court can correct error and give guidance on the proper balancing in these cases.

    2. Reexamination of the Burdick standard. Chris's excellent article shows that what the Court says Burdick sliding scale review does and what the Court actually does in these balancing cases are different.  Chris urges lower courts to follow what the Supreme Court has done, and not what it says. This is a hard course for lower courts to take. To the extent the Court can shed light on how lower courts should apply the Burdick standard, especially in light of Bush v. Gore (I've argued (in "After the Storm: The Uses, Normative Implications, and Unintended Consequences of Voting Reform Research in Post-Bush v. Gore Equal Protection Challenges," in Rethinking the Vote (Oxford University Press, Ann Crigler, Marion Just, and Edward McCaffery eds., 2004)) that Bush v. Gore may have changed the Burdick standard), that would be helpful. Chris also sets forth a test in his article that raises the level of strict scrutiny based on a showing improper legislative motivation. That''s not a test I would advocate, but plaintiffs might ask the Court to consider it in this case. (I'd argue, contrary to Chris, that Burdick should be replaced with a test that calls for more rigorous scrutiny the empirical evidence, which goes back to my first point as to why this case should be taken.The evidence of voter fraud presented in Crawford, as I've argued, simply does not provide any support for a voter id law under anything more than a rational basis review.)

    Indeed, if the plaintiffs ask for cert. on grounds of clarifying/changing the Burdick test, they might suggest and grant and hold until the Lopez Torres and Washington Primary cases are decided next term.

    3. Implied conflict in the circuits.There is not a direct conflict in the circuits between Crawford and other voter id cases, but there is at least an implicit tension on the poll tax issue. Judge Posner assumes in Crawford that the indigency exemption takes care of any poll tax issues. (Chris and I also disagree on the poll tax question, though Chris notes below that the Indiana procedure likely flunks any rational basis plus review.) Here's an excerpt from the latest version of my draft discussing Crawford (this version is not yet on ssrn, footnotes omitted):

      In Indiana, contrast, poor voters are allowed to cast a provisional ballot without producing photo identification, if they later appear before an elections official to sign an indigency affidavit. It is unclear how much this alternative requirement would deter voting by indigents.Even putting aside the stigmatic effect of seeking a declaration of indigency,the indigent voter must cast a provisional ballot and then at a later time present to a circuit court clerk or ounty election board an affidavit affirming under penalty of perjury that the applicant is indigent and is unable to obtain an identification without the payment of a fee (or has a religious objection to being photographed). For example, an indigent voter in Gary Indiana who does not drive and cannot afford a car would have to travel by taxi
      or private car (because there is no public transportation) from Gary to the County seat of Crown Point, at least 30 minutes away.

      Indiana law provides for a way for indigents to vote without producing a photo identification. Though such an approach in theory should obviate a poll tax argument against voter identification requirements as accepted in the Georgia case, see supra note 143, it is not so clear upon closer inspection that the Indiana law removes the poll tax problem.To take advantage of the indigency exception, a voter must cast a provisional ballot at the polling place and then show up at another time and place to fill out an affidavit of indigency. Tese affidavits are not available at the polling place; instead, the indigent person must make a separate trip to appear before a clerk or election board to sign an affidavit under penalty of perjury that one does not possess a photo identification and that indigency prevents getting one (or that there are religious reasons for not having one's picture taken).This procedure seems to be a pretty onerous burden on the poor, especially those who have to travel back a second time to see an elections official. A less onerous requirement would allow the affidavit to be filled out at the polling place, or
      a single time with a voter's registration form.

    There's also a conflict over how to balance any "feelings of disnenfranchisement" with actual disenfranchisement. (Compare Crawford, picking up on this unfortunate language from Purcell, and the Missouri Supreme Court's treatment of the issue in Weinschenk v. State, 203 S.W. 3d 301 (Mo. 2006).)
    There may be strategic reasons (voiced by Dan Tokaji and others) for plaintiffs not to bring this suit to the Supreme Court. But if the plaintiffs do petition for cert, I very much hope the Court will grant it.

I'd add now that the case is also noteworthy because of the troubling partisan split among both the 7th Circuit panel and the vote on whether or not to take the case en banc.

UPDATE: Bob Bauer worries about what the Court would do if it took the case. Dan Tokaji has expressed similar concerns.

Posted by Rick Hasen at May 16, 2007 03:26 PM