Understanding the Supreme Court's Voter ID Decision

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.

Comments

[chrisincalif]

I just hope progressive groups, including the Election Protection project, will join forces to create a new organization ~ dedicated to helping voters in states that require such IDs. Streamline any State bureaucratic process and even fund those voters who are too poor to pay for the ID. This sad, regressive setback can be reversed when better people are appointed to our Court. We needn't accept this backward slide....let's work to help any voter who needs assistance, and start now.

[desertdweller]

In any given election, voter fraud accounts for a few thousand votes, either way, and is most often inconsequential in determining the outcome. The 2000 Supreme Court decision in Bush v. Gore was the largest tehft of votes in the history of the world and look at the consequences.

[Shaddup]

This is a pre-emptive law, passed to stop an unproven crime. There is no record of anyone being convicted for this kind of voter fraud. It's a poll tax to keep the poor and elderly from voting. Many of whom can't get out, or off of work to obtain such an ID even if it were offered for free. This law is the rebublican version of legalizing their own favorite kinds of voter fraud like turning people away from the polls, vote caging, and misinformation--all proven, and still being used. So they can't enforce the laws they already have (or don't) and passed a poll tax for a crime that has yet to be committed. Sucks when one of the parties owns the Department of Justice. Hatch Act, anyone?

[HollywoodBill]

Perhaps no convictions of voter fraud, but there most certainly is evidence of it. And against one of the most loathed and hated Republicans of all times, Bob Dornan of Orange County CA in the infamous 1996 election against Loretta Sanchez. B1 Bob was getting out of touch with his rapidly changing district and had a serious challenger with Sanchez. In the end he lost by 984 votes. Bob cried foul and started making loud noises. An investigation by a Congressional Committee found that 547 illegal aliens had indeed registerd and voted in the disputed election. Dornan claimed that the number was over 2000 but neither the Congressional Committee, an investigation by the LATimes, the Fair Elections Group and an Orange County Grand Jury could only verify the 547 illegal voters.

Only 547? ONLY? The fact that it was documented and proven that 547 illegals had voted in this election is disturbing enough. While Dornan is one of the most loathsome Congressmen ever elected is all the more reason for elections to be more monitored. This law is needed, and that means starting with the absentee voter list too.

About Dornan: http://www.soundpolitics.com/archives/003321.html
Aboiut fraudulent elections: http://www.humanevents.com/article.php?id=23731

Read it and weep.

[flanardiente]

So many of the comments here are of the "what's the big deal?" variety. Here's the big deal: we're AMERICANS. Or some of us are, anyway. These apologists for voter ID are HOMELANDERS, who almost always need permission from the government to do what Americans have always considered a birthright. The biggest instances of voter fraud in recent history are those 19,000 Jewish folk down in Florida who apparently voted for Pat Buchanan in 2000, and the almost total lack of votes Obama got in Harlem this year. Oh, and the caging in Ohio. I'd like to ask a Homelander how a picture ID would prevent this kind of fraud, but he wouldn't know what to say until a government spokesman gave him the party line.

The Supreme Court showed itself in the year 2000 to be not only corrupt, but openly corrupt, with that kind of top-down arrogance common to machine politicians. It's hard to say who's disgraced the Court more, Scalia or Thomas. The rest of them are hacks, pure and simple, with the possible exceptions of Ginzburg and Breyer. By that I mean, they're just not very good at their jobs. They're mediocre dim-bulb jurists appointed by partisan dim-bulb presidents and affirmed by a venal and tainted Congress.

Fortunately, we've survived worse.

[TRUE BLUE AMERICAN]

Hey flatulence, take a look at the resume for Scalia and Thomas. Dim-bulbs? you are a typical liberal, you don't like the way they rule so you label them dim. Ruth Ginzburg, nominated by Clinton was part of the ACLU general counsel, I think that sums up her agenda. Get a clue.

[SingingBird]

While this is a thoughtful analysis by the author (Rick)...given the implications of this decision, I would expect something like this would be screaming across the front page. This has far reaching consequences. People should know about this and how it has the ability to affect the outcome of the primaries and national election.

[kdogg]

I guess I'm unclear. I don't have a problem with some one having to show some type of picture id to verify their identity when they vote but is it true that state issued ids such as drivers licenses would not count? I mean if you can by booze or cigarettes or get government benefits then why not for voting? Am I to understand that people want to have a honor system or something for voting? I find it hard to believe that someone who is interested in voting can't scrounge up the fifteen dollars necessary (at least that is what it costs in my state) to pay for an id every 5 years? give me a break.

[donaldw6]

The Poll Tax gets an update for the 2008 election.

[joekerr]

The problem with getting an id is the cost and the amount of documentation you need to procure one. By requiring a valid government id (btw your drivers licence does not count as valid governent id. Don't believe me? Take a look at the back of your drivers license where it states that this is not valid for voter registration, govenment benefits etc.) Now that you know that, think about the last time you actually ever had an IDENTIFICATION CARD that was sanctioned by the government. As far as I know, there isn't one or if there is, it isn't easy to come by. So what this amounts to is a poll tax. It will effectively disenfranchise both poor and old people in large swaths. Hell, it might even affect you if you don't have this phantom government id that they are talking about. This is exactly the kind of tricky crap our government consistently plays on us! Here check out this link for what kind of ID you may have to have to vote coming shortly. http://www.idsysgroup.com/REAL-ID-Security-Williams-2005-notes.pdf. Get educated before you simply agree with a bunch of old farts in robes who are out of touch with either reality or sanity.

[Bill3rdterm]

Then why when I go vote and they ask for ID, I give them my Divers License? WHy when a police officer asks for ID (when not in a vechicle), I give him my Drivers License and it's accepted?

[BrighterStar]

If the as applied challenges will be difficult to win isn’t that an argument against allowing a facial challenge. Facial challenges lead to bad legal results because the force judges to decide cases without the benefit of an actual case before them. This forces the court to speculate about the effects of a law instead of having a good factual case. That is why facial challenges are only allowed in extreme situations.

I think Scalia makes the best case on the merits. The court should not go into weighing the governments need or motivation until it has been established that there is an equal protection issue demonstrated. Courts should avoid looking into a legislative body’s motives unless absolutely necessary. Here, as Scalia points out, there is little or no evidence of an equal protection violation. The court should have stopped there and ruled for the state. If this law is truly discriminatory there can be an as applied case until then there is no case.

[colhendricks]

Antonin Scalia, Supreme Court Justice:

"Pull over. I have to take a leak."
.

"Leave the gun. Take the cannolis."

Piece of corrupt...s..t.

[oldpotsmuggler]

Since it doesn't really take anything for these laws to be up help, and since the Dems are going to win big all across the country this time, let's think of things to put in a Bill that would cut down on the ability of Republics to be able to qualify.

Ooh! Other than standard old garden variety Gerrymandering, I can't think of a single thing that would even slow them down.

How could anyone call this kind of stuff "political" since it so obviously goes only one direction?

[SouthJerseySteve]

I'm confused... don't poor minorities drive a car or have a social security card for identity? I mean, don't you have to show ID to get welfare checks or food stamps? So what's the big deal?

[Marrob]

What about "Poor White people"? or even the elderly? You're a damn idiot!!!

[BitterInPA]

In thirty years of voting, I never had to show any identification. I sign my name next to a copy on the rolls when I vote. Funny thing is that very old signature looks nothing like how I sign my name today. I even re-registered this year, but that old signature is still there.

How much voter fraud is there really. This ID issue is just a way to deny poor, uneducated people from voting (hence the GOP loves it). If you want to throw an election, do what they did in Ohio during 2004. Make sure you have less voting machines in areas that are heavily Democratic, causing long lines and insuring the status quo.

[hoopesaz]

The woman who started this whole legal action was illegaly registered to vote in two states. How much voter fraud is there? Way more than gets reported. It's not unreasonable to ask people to show identification to make sure they are voting for themselves and only voting once.

Astonishing that democrats, self proclaimed protectors of voting integrity, turn the cheek when it becomes inconvenient.

[UnbiasView]

It's about time, I can't believe it took this long. Hopefully other states will follow in their foot steps and enact the same types of laws.

[rudiy]

Although I rarely agree with the current Court., to some degree I agree. Based upon the specific facts, what Indiana asks, is very little and requires no monetary expenditure. To cash a check, getting government benefits and many other daily things require picture ID.

[MrJoyboy]

And it keeps the poor jobless riff-raff with no picture ID and who would probably vote Democratic out of the voting booth. How convenient.

[Bill3rdterm]

Who the hell doesn't have an ID? And if they don't then go get an ID. I have to show my ID when I vote. Without an ID, it's way too easy for voter fraud.

[Mack20]

You just busted yourself, Joyboy. With your idiotic statement, you admit you are against this law because lazy, unemployed people may or may not have a driver’s license and are sure to vote democratic. Truth is if they are so lazy as to not have a job or ID, why would they care to register to vote? I'll bet you’re a college professor. Your elitist disdain for the "riff-raff" outs you. And you’ll put up with them as long as they vote the way you do.