January 09, 2008

The Indiana Voter ID Case: Bush v. Gore All Over Again?

I have now had a chance to review the transcript in Crawford, the Voter ID case argued in the Supreme Court today, as well as a number of reports from oral argument. We are likely looking at another conservative-liberal split on the Court, with Justice Kennedy again holding the balance of power on the question. From his brief remarks at oral argument, my best guess is that Justice Kennedy will join with the more conservative wing of the Court in upholding the law, though I imagine he will write an opinion leaving open the possibility, and even stressing the likelihood of success, of narrow, as-applied challenges to the law based upon a showing that the law is likely going to be onerous to a particular group of voters. The most vulnerable provision of Indiana law in this regard is the requirement that indigent voters without identification make a second trip to the county seat to file a second affidavit for their provisional ballot to count.

This approach may have appeared desirable at oral argument, but upon closer examination, it raises a number of legal issues---issues that could cause Justice Kennedy to rethink the "as applied" approach. First, as Chris Elmendorf has suggested, the as applied approach is likely to lead to a great increase in the amount of litigation over nuts and bolts election law disputes. Paul Smith made this point in his rebuttal at oral argument as well (page 65 of the transcript ["The whole thing would be a complete and utter morass."].). My view is that the Court does not want to encourage more election law litigation, but the as applied approach would do exactly that.

More importantly, the rule would create more litigation at exactly the wrong time, just before or just after an election. I have written extensively about the dangers of post-election litigation, which can cause the public to lose confidence in both the fairness of the election process and the fairness of the courts (which, as I've noted, have divided along party lines in considering hotly charged election issues such as voter id.) In addition, the Court in its recent Purcell v. Gonzalez case tried to discourage litigation brought just before an election, because it can create great confusion about the electoral process. (The Court has a point, but as I've argued, pre-election litigation is at least better than post-election litigation when there is a choice between the two, for purposes of public confidence.) A rule encouraging pre-election challenges to the nuts-and-bolts of elections just before election time is likely to push courts even further into the political thicket.

Finally, if the Court punts in the Indiana case, putting the issue off to a future as applied case, it is not going to give the very needed guidance on how to resolve the difficult balancing in these cases. The operative Burdick standard has been applied inconsistently by lower courts, and the lack of clarity will lead to disparate decisions in different cases, which will in turn lead to charges (often unfair) that judges are deciding these issues on the basis of political considerations rather than the law. For this reason, the main legal argument in my amicus brief concerns how to refine the Burdick standard to get more consistent results in the courts below.

If Justice Kennedy is indeed troubled by certain aspects of the Indiana law (such as the two-trip requirement for indigent voters), the best result from the point of view of discouraging election litigation is to strike down the law, pointing out the flaws with the law, and telling the Indiana legislature to pass a revised law without the objectionable portions. This is what happened, to some extent, with the Georgia voter id law. A court struck it down, pointing to its most vulnerable sections, and the Georgia legislature rewrote the law, making it somewhat less severe.

Some have called this case Bush v. Gore II because of the possible 5-4 split on the Court, with a 5 justice majority seen issuing an opinion that helps Republicans and harms Democrats. I see a different parallel: Just as Bush v. Gore has spawned a great deal of election law litigation (statistics in my earlier cited articles), Crawford too has that potential. It is not a result that would be good for the country.

Posted by Rick Hasen at January 9, 2008 01:21 PM