Along with my co-counsel, Alan Glickman and Kristie Blase of Schulte Roth & Zabel, I’ve written this amicus brief (pro bono, on my own behalf) in Crawford v. Marion County Election Board, the Indiana Voter ID case. I’ve posted the top side briefs on the merits here and you can find even more documents on this Brennan Center page.
To read the Introduction to my brief, click on the link below.

INTRODUCTION AND SUMMARY OF ARGUMENT
The 2000 Florida election controversy has had profound effects across the United States both in greatly increasing the amount of election law litigation and in undermining the confidence of some groups of voters in the fairness of the electoral process. Although this Court expressed the hope in Bush v. Gore that “[a]fter the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting[,]” 531 U.S. 98, 104 (2000), many recent efforts at election administration reform have become mired in partisan controversy. Generally speaking, Republican state legislators have proposed laws, such as strict voter identification laws, that they say will prevent voter fraud, and Democratic legislators have proposed laws they say will prevent voter intimidation and remove barriers to voting, such as Election Day registration.
The greatest controversy has occurred in the realm of voter identification laws. Every state legislature that has passed a voter identification law since 2000 has done so along party lines. Some Democrats believe Republicans have enacted such laws not to prevent fraud but to make it harder for poor and minority voters, who are more likely to vote for Democratic candidates, to vote. Some Republicans believe Democrats oppose such laws because they want to make it easier for ineligible voters supporting the Democratic Party to vote, or for eligible voters to vote more than once. Even courts that have considered recent constitutional challenges to voter identification laws have split along party lines, with Republican-elected (or -nominated) judges tending to uphold voter identification laws against constitutional challenge and Democratic-elected (or -nominated) judges voting to strike down such laws. This does not mean, and amicus does not suggest, that judges are attempting to benefit their political parties. Rather, judges simply appear to bring to these cases the same perspectives that others with their political affiliations have about the credibility of voter fraud and vote suppression claims. Nonetheless, decisions rendered along party lines can engender a public perception of partisanship.
In this atmosphere, it is important for this Court to articulate clear and fair rules to resolve election administration disputes that transcend partisan politics and restore voters’ faith in the integrity of the electoral process. Most lower courts considering such disputes turn to this Court’s opinion in Burdick v. Takushi, 504 U.S 428 (1992), or other cases in this line, which articulate a flexible balancing approach to judging the constitutionality of state election laws. But the Burdick standard has not been correctly applied by some lower courts to cabin judicial discretion. Those courts have focused on the first part of the test: pegging the level of scrutiny to the character and magnitude of the burden the law places on some voters. It is an uncertain endeavor, see Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 208 (1999) (Thomas, J., concurring) (“I am not at all sure that a coherent distinction between severe and lesser burdens can be culled from” the Burdick line of cases), and one that has led to strongly divergent results in similar cases. Finding a severe burden, some courts strike down voter identification laws. Finding a lesser burden, some apply an exceedingly low level of scrutiny that does not require the state to provide any evidence its law is reasonably calculated to serve its interest, and uphold such laws. That approach misreads Burdick and this Court’s other relevant precedents and ignores a basic principle of those cases that applies even where there are no severe burdens on voters: a state’s election law must be at least reasonably tailored to the interests the law purports to further.

In passing judgment [on the constitutionality of challenged election laws], the Court must not only determine the legitimacy and strength of each of [the state’s asserted] interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff ’s rights. Only after weighing all these factors is the reviewing
court in a position to decide whether the challenged provision is unconstitutional. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (emphasis added). As this Court indicated in Rosario v. Rockefeller, the provision in question should be “tied to [the] particularized legitimate purpose” articulated by the state. 410 U.S. 752, 762 (1973) (emphasis added).

This aspect of the test is crucial and should not be ignored by lower courts, especially given the post-2000 partisan atmosphere in which there is the danger that election administration rules are being chosen for partisan advantage. See Clingman v. Beaver, 544 U.S. 581, 603 (2005) (O’Connor, J., joined by Breyer, J., concurring); Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the judgment).
The misapplication of Burdick and related authorities can lead to arbitrary results in similar cases, and arbitrariness can look like political favoritism to voters already concerned about the fairness of the electoral process. This Court should hold that lower courts, in “consider[ing] the extent to which [state] interests make it necessary to burden the plaintiff’’s rights,” Anderson, 460 U.S. at 789, must require states not only to articulate an important state interest–such as preventing election fraud–to justify its challenged election law, but also to provide some credible support for the proposition that its law will further that important interest. Only if the state demonstrates a reasonable fit between its law and the state interests that are implicated is it appropriate to balance those interests with the potential disenfranchisement of voters or other voter burdens.
Enforcing this Court’s requirement that the state show that its law is at least reasonably tailored to further important state interests and nondiscriminatory will invalidate the most partisan of election administration laws that are passed with only the pretext of being motivated to serve an important state interest. The reasonable tailoring requirement is not as strict as the “narrow tailoring” of strict scrutiny and will not undermine the results in this Court’s Burdick cases–such as those in involving ballot access or the question of who gets to vote in a party primary–which have recognized that “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 729 (1974); see also id. at 730 (“It is very unlikely that all or even a large portion of the state election laws would fail to pass muster under [this Court’s] cases”).
Under the appropriate application of the Burdick standard, the lower court decision cannot stand. Though preventing election fraud is indeed a compelling interest that justifies any number of state election laws, it cannot justify Indiana’s strict photographic identification requirements.
First, the law does impose a severe burden on some voters. Even assuming election fraud prevention justifies a fairly applied voter identification requirement, it cannot justify Indiana’s requirement, the strictest approach in the nation, which would require an indigent voter lacking identification to make two trips to government offices (some as far as 30 minutes or more away from the voter’s residence) within 10 days at the voter’s own expense to cast a ballot that would count.
Second, there was no credible evidence in or outside of the record that impersonation voter fraud is a serious problem today in this country. Indiana itself conceded it had never prosecuted a case of impersonation voter fraud that a voter identification law would be likely to prevent. If the state were really concerned about voter fraud, it would have taken steps to make absentee voter fraud more difficult, given the documented history of that type of voter fraud.
Because Indiana failed to present any evidence that the provision at issue is reasonably tied to the purpose of addressing election fraud, the law should be struck down as a violation of the Equal Protection Clause and the First Amendment right of association whether or not the court concludes the burden the law imposes on voters is “severe.”
Finally, this Court should clarify the confusion with Burdick balancing that has emerged from dicta in this Court’s recent opinion in Purcell v. Gonzalez, 127 S. Ct. 5 (2006) (per curiam). The lower court read Purcell as requiring a court to balance the actual disenfranchisement costs of voter identification laws with feelings of disenfranchisement that could come from voter perception of voter fraud. This Court should clarify that lower courts should engage in such balancing only if the state can come forward with evidence that voter turnout is in fact being depressed by real or imagined voter fraud.