January 09, 2008

Still More on Crawford Oral Argument

Chris Elmendorf sent the following thoughts to the Election Law listserv, and he's given me permission to reprint his very important comments here:

    I too attended oral argument this morning. Two aspects of the dialogue were striking. First, Paul Smith told the Justices that the Burdick standard requires them to make careful judgments about the reasonableness of the law, and no Justice seriously challenged him on this. Justice Alito did express some discomfort with the line drawing task, and Justice Souter at one point gestured toward the idea of a quantitative standard (based on the total number of voters adversely affected), but there was no discussion of (1) whether heightened scrutiny applies only if the burden is “severe” (a question that has divided the lower courts); and/or (2) how to conceptualize burden severity in cases about administrative barriers to voting. If the constitutional test is whether the law is all-things-considered reasonable (without a strong presumption one way or the other, as under the traditional rational basis and strict scrutiny tests), I don't think anyone should be surprised if the partisan divide in the legislative arena is replicated on the Court.

    I was also struck by the response to Paul Clement's argument for rejecting the facial-challenge model in favor of as-applied claims by particular voters or classes of voters for whom compliance with the ID requirement poses a significant hardship. The conservatives welcomed this approach. Souter and Ginsburg worried that it would prevent pre-election litigation, but Clement answered that pre-implementation as-applied challenges would be fine. Paul Smith said it would be messy, with different classes of voters each seeking narrow remedies or exemptions from the ID requirement. No Justice seemed bothered by that. Completely unaddressed, however, were the implications of the as-applied model for other voter-participation claims. Perhaps I am mistaken about this, but the apparent premise of the as-applied model--that a voting requirement is presumptively unconstitutional vis-a--vis any voter for whom the requirement, in conjunction with the voter’s life circumstances, results in a "cost of voting" for that voter well in excess of the cost of voting faced by average voters--would seem a recipe for radically expanded judicial intervention in the nuts and bolts of election administration. The voter ID issue is an easy one for the as-applied model, because of the existence of a simple remedy (an injunction ordering that provisional ballots be counted). But what about challenges to in-person voting requirements by people who work long hours or have extraordinary child care responsibilities; or to ballots printed in English by members of a tiny language minority group (not protected under the VRA); or to precinct-voting requirements by voters who face unusually long lines? (For more on this question, see my recently posted and very preliminary draft, "Undue Burdens on Voter Participation (Is the Right to Vote Like the Right to an Abortion?)," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1080256.)

Justin Levitt also had some pre-argument commentary here and here.

Posted by Rick Hasen at January 9, 2008 12:18 PM