Andrew Delaney has posted this timely NYU Law Review note on SSRN. Here is the abstract:
- As the public increasingly focuses attention on problems of election fraud, courts have struggled to deal with the constitutionality of anti-fraud measures. Reflecting this, the Supreme Court has agreed to hear a case on the constitutionality of a law that requires voters to present photo identification to vote in-person. Critics say that the law puts an unconstitutional burden on the right to vote while advocates argue the state’s interest in preventing voter fraud is strong enough to justify this burden.
Drawing an analogy to campaign finance law, this piece argues that the state has an interest in preventing not only election fraud, but also in preventing the appearance of election fraud, an interest not previously recognized by federal courts. The state has this interest in election law for the same reason it does in campaign finance law, namely because it has an interest in preventing voters from losing faith in the democratic process and thus dropping out of that process. Borrowing from the standard of proof courts have used to prove the appearance of corruption exists in financing, this paper analyzes popular opinion, media reports, and legislators statements to determine that the appearance of voting fraud exists – and therefore the state can act on its interests in combating that appearance. Due to its current relevance, this paper analyzes photo identification requirements as an example of the type of anti-fraud law which might not be constitutional if the state’s only interest was in preventing the actual fraud, but might be when factoring in the appearance of corruption interest.
I have written this new piece for Slate. It begins:
- Set aside, for a moment, the Supreme Court’s decision Monday upholding Indiana’s voter-identification law. It’s another little-noticed election law in the state that could come into play during next week’s Clinton-Obama contest for the Democratic presidential nomination. Republicans and independents can vote in Indiana’s Democratic primary. But this quirky state law gives voters the right to challenge other voters at the polls for not being sufficiently loyal to the political party in whose primary they are voting.”
For the election geeks out there (hi Doug!), the relevant code sections are the following two:
- IC 3-10-1-6
Sec. 6. A voter may vote at a primary election:
(1) if the voter, at the last general election, voted for a majority of the regular nominees of the political party holding the primary election; or
(2) if the voter did not vote at the last general election, but intends to vote at the next general election for a majority of the regular nominees of the political party holding the primary election;
as long as the voter was registered as a voter at the last general election or has registered since then.
Sec. 9. A voter in a precinct may challenge a voter or person who offers to vote at a primary election. The challenged person may not vote unless the challenged person:
(1) is registered;
(A) an oral or a written affirmation under IC 3-10-12; or
(B) an affidavit:
(i) that the challenged person is a voter of the precinct; or
(ii) required under IC 3-10-11 if the voter declares that the voter is entitled to vote under IC 3-10-11; and
(A) at the last general election voted for a majority of the regular nominees of the political party for whose candidates the challenged person proposes to vote in the primary election and intends to vote for the regular nominees of the political party at the next general election; or
(B) if the challenged person did not vote at the last general election, intends to vote at the next general election for a majority of the regular nominees of the political party holding the primary election.
As I note in the Slate piece, “Given the way it’s constructed, prosecuting someone under this law looks quite difficult–unless someone is dumb enough to blog about lying on an affidavit, how would prosecutors prove how the voter voted last time or that he lacks the intention to vote for a majority of Democrats at the next general election? And there are questions about the constitutionality of this provision.” On the constitutional question, at least for voters who voted in the last election, is this not a two year disaffiliation provision, like that struck down by the Supreme Court in Kusper v. Pontikes. I’d certainly advise the Indiana legislature to change this law before the next election, or else face a lawsuit seeking to strike it down.
In any case, we’ll see if challengers materialize at the polls on Tuesday. Thanks so much to a reader for initially bringing the odd Indiana code provisions to my attention.
This Roll Call editorial ($) weighs in on what Congress should do in light of Crawford.
Check out this second NPR report by Nina Totenberg. I was struck by the comments of both Rick Pildes and Pam Karlan. I disagree with both of them, but would want to hear more from them on their points. (As an aside, a double congratulations to Rick!)
I also did this extensive NPR interview on the case with the Bryant Park Project.
David Savage has an interesting piece on the demise of facial challenges in this morning’s LA Times.
Ned Foley and Dan Tokaji have characteristically thoughtful pieces on the case.
Bob Bauer weighs in here and here.
John Fund’s WSJ column is here.
MSNBC offers A Timely Reminder from Justice Stevens.
And Richard Samp has this guest post on SCOTUSblog.
It was very interesting to see the very wide spectrum of views represented at the Kennedy school event yesterday on reforming the presidential primary process. (The conversation was on the record, and a transcript will be posted by the Kennedy school at some point.) I would say I walked away thinking how difficult change is going to be, how intractable the positions of those supporting and opposing a system that allows Iowa and New Hampshire to go first, how different the Democratic and Republican party philosophies are on how flexible rule changes should be, and how little support there was among this very diverse audience for a congressional solution (at least one that is foisted upon the national political parties against their will). There was talk of congressional carrots, and there seemed to be a consensus that fundamental changes to the Democratic rules would take place if Sen. McCain ended up winning in November. There also seemed to be agreement that something had to be done to fix the administration of caucuses in some states, such as Texas. But as for this diverse group reaching a general consensus over (1) what, if anything, is wrong with the current system of nominating the presidential candidates; (2) how, if at all, the system should be changed, and (3) who should implement those changes, forget about it.
See here. Back to speed tomorrow.
Here are some stories and commentaries on today’s decision:
NY Times (Linda Greenhouse),The Times’ Ian Urbina (whose story with Eric Lipton on fraud was cited by the Court) and this NY Times editorial (which cites my earlier blog post)
Washington Post (and Roy Schotland will do this Post discussion)
Wall Street Journal
Indiana Secretary of State Todd Rokita
More to come
Christian Science Monitor
Today’s much anticipated decision in Crawford v. Marion County Election Board is a significant win for those who support stricter voter identification laws, even if they support such laws for partisan purposes. It will encourage further litigation, because it relegates challenges to laws imposing onerous burdens on a small group of voters to “as applied” challenges, but those challenges will be difficult to win. The lack of a majority opinion, moreover, injects some uncertainty into the appropriate standard for reviewing other challenges to onerous election laws. The Court’s specific split in this case will blunt charges that this is a politicized 5-4 decision—and it is significant that the Court, once again, has failed to cite to its opinion in Bush v. Gore. More on each of these points below. [Disclosure: I filed this pro bono amicus brief on my own behalf supporting the challengers to the law in this case.]
1. The Controlling Standard from Justice Stevens’ Opinion. The Court split into three camps on the constitutionality of Indiana’s voter identification law (four camps if you count the nuanced differences between Justice Souter’s and Justice Breyer’s dissenting opinions). The controlling opinion is that of Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy. In a nutshell, the approach boils down to this: under the balancing approach of earlier cases (which the opinion says comes from cases such as Anderson and Burdick), a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong. Indeed, though Justice Stevens says that there is evidence of fraud to justify a voter identification requirement, the actual evidence he cites in the footnotes is incredibly thin—either reaching back to 1868 (footnote 11) or a single case of impersonation voter fraud found in a recent gubernatorial election in Washington state (fn. 12). Moreover, Justice Stevens says an interest in preserving voter confidence can justify such laws as well, ignoring undisputed evidence such laws are not at all likely to instill voter confidence (and could in fact do the opposite). Nor does it matter if the motivation in passing the law is completely partisan. The law is to be upheld unless “such considerations had provided the only justification for a photo identification requirement.” So those with partisan motive need only find a nonpartisan pretext for such laws. Once the state has posited its neutral reasons for such a law, the law is to be upheld if it doesn’t impose serious burdens on most voters. For those voters who do face serious burdens, they must bring an “as applied” challenge where they present specific evidence applied to them as to why the law is onerous. This channelling of election law cases into as applied challenges–part of a recent trend of the Court— is going to make it tough for a lot of plaintiffs who are burdened, and is in sharp contrast with the Court’s approach in earlier cases, such as the Harper case striking down the poll tax for everyone, not just poor voters. The evidence in as-applied challenges must be specific and tested in litigation; as Justice Stevens says responding to Justice Souter’s dissent: “Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication.”
2. The Wide Gap in the Other Opinions. Justice Scalia’s opinion (joined by Justices Alito and Thomas) concurring in the judgment is uncharacteristically brief. It reads the applicable constitutional standard differently, one that simply gives carte blanche to most states to pass laws with any kind of neutral justification offered. It is unclear to me, despite the * footnote, whether Justice Scalia would today uphold a poll tax like that struck down by the Court in Harper. Certainly Justice Scalia seems to think that if a law doesn’t burden most people, it should be upheld unless it imposes a “severe and overall” burden on the right to vote. Justice Souter’s opinion in dissent is the one I would have hoped the Court would have written; rather than accepting the state’s interests at face value, it probed to see if the evidence actually supported it. Because the state failed to do so, the Court should have struck down the law entirely, not relegated future challenges to “as applied” litigation. Justice Breyer, taking a somewhat more moderate approach to the state’s interest, finds fault in the details of the Indiana plan—there is no justification, he says, for the more severe aspects of the plan.
3. The Split on the Court and the Legacy of Bush v. Gore. Certainly the potentially explosive nature of this litigation is blunted by the Court’s interesting split in the case. This is not your typical 5-4 split with Justice Kennedy casting the deciding vote. The controlling opinion features three Justices across the spectrum of the Court; that’s good news for those who worried about the effect of this decision on the Court’s legitimacy in election law cases. Beyond that split, it is amazing to me how allergic all the Justices of the Court are to Bush v. Gore. One of the things I spent considerable time on in my amicus brief and in this recent Stanford Law Review article is the rise in partisan litigation in the courts in the wake of the 2000 Florida debacle and the politicization even of the Judiciary. Nary a word from any Justice on what their own handiwork may have caused in this country. The Stevens opinion response seems to be one of showing by example rather than addressing the issue directly. While that’s to be commended, I am disappointed by how cursory that opinion was in its review of the state’s interest in light of the highly partisan atmosphere of election administration, and I fear that, despite the Stevens-Kennedy-Roberts’ opinion’s best intentions, this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections. It is a real disappointment from that perspective.