Bush v. Gore Rears Its Head: The Politicization of Voting Rights (Part I of III)

In 2000, it was the Supreme Court that set the country on the disastrous course it has taken since then under the Bush-Cheney administration. The Justices' invasion of politics was never more brazen, and rarely were the results of any institution's aggrandizement so magnificently catastrophic. Today, as the nation prepares to rid itself of the presidential yoke imposed by the Court seven years ago, it behooves us to note how the Court continues to engage in partisan judicial activism.

The Court did not finish its sordid partisan business in 2000. It continues to play a political hand, perhaps even more overtly since the appointment of its two newest Justices. The Court's recent decision in Crawford v. Marion County (upholding Indiana's controversial and restrictive voter ID law) reflects the ongoing willingness of the Roberts Court to aggrandize itself and boldly decide political questions.

Rather than an insulated aberration, Bush v. Gore appears in retrospect as merely the first of an emerging line of cases including Crawford and the 2004 Energy Task Force case and. It reflects the influence of unelected, unethical judicial activists disrespecting precedent, discouraging democracy, invading the political sphere and imposing a right-wing ideological agenda on the country.

This article is the first in a three part series exploring the Court's politicization and self-aggrandizement, as well as a policy recommendation about how it can be balanced by Congress and the next administration. This initial installment examines the Court's decision in Crawford and, in particular, the import of Justice Stevens' seemingly surprising vote in the majority. Part II will place Crawford in the context of other politicized rulings by the Roberts Court while demonstrating the inadequacy of historical "checks" on the Court. Finally, Part III will consider the Court's role going forward and present a proposal to effectively balance the prevailing dominance of its most conservative members.

Disrespecting Precedent

Crawford, the voter ID case decided in April, overturned a long line of cases defending the rights of voters to participate in elections. It did so in a brazen fashion seemingly typical of the Roberts Court, yet in the equivalent of jurisprudential stealth.

Harper v. Virginia Board of Elections - the 1966 case that struck down a $1.50 poll tax as unconstitutional - hinged on the right of voters to cast ballots regardless of their ability to pay a fee. Until now, onerous pre-election processes requiring payment in order to receive necessary documents or qualifications were also constitutionally suspect. As Justice Douglas explained quite simply in Harper, "a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax."¹

In Crawford, the Court upheld a law requiring Indiana voters to show specific forms of government-issued ID in order to vote. The documents required to gain an Indiana state ID cost money -- even more than the law struck down in Harper, on even an inflation-adjusted basis. Those requirements would therefore be unconstitutional under the Court's well established equal protection jurisprudence. Harper, after all, settled that "wealth or fee paying has . . . no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened . . . ."

But the Roberts Court (through the unlikely figure of Justice Stevens) contrived a new rule allowing Indiana's restrictions on the right to vote. Specifically, "if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators."

It did not matter to the Court that partisan electoral interests were the only rational explanation for its passage. Every Democrat in the state legislature opposed the law, and every Republican supported it. And with good reason: the law's non-partisan justifications were pretextual. As one appellate judge suggested, the law is nothing more than a "not-too-thinly-veiled attempt to discourage voting-day turnout."

Impeding Democracy

According to its proponents, Indiana's voter ID law aims to prevent so-called "voter fraud." However, as Justice Stevens noted in his opinion for the court, "[t]he record contains no evidence of any such fraud actually occurring in Indiana at any time in its history." (emphasis added) Even Republican campaign consultant Royal Masset notes that "in-person voter fraud is nonexistent. It doesn't happen, and...makes no sense because who's going to take the risk of going to jail on something so blatant that maybe changes one vote?"

In fact, real problems do continue to plague the electoral process, including "ballot box stuffing, electronic voter machine hacking and list manipulation," in addition to several different kinds of structural limitations. For instance, a laissez faire approach to campaign finance allows blatant interference by economic inequality with the political equality necessary for meaningful democracy. Separately, single-member plurality (i.e., "first-past-the-post") voting schemes artificially restrict voter choice by excluding emerging entrants into political markets and reinforcing the legitimacy of dominant political parties. Finally, nearly half a million residents of the District of Columbia - most of whom are African-American - are formally denied any pretense of representation in Congress, even though that body wields more control over the district than it does over any other city in the nation.

However, voter ID laws don't ameliorate any of these real issues. As Justice Stevens observed, "The only kind of voter fraud that [Indiana's law] addresses is in-person voter impersonation at polling places" -- the same kind that he specifically noted had never actually occurred in Indiana.

The law's only actual effect is to disenfranchise legitimate voters, such as college students and nuns. While it includes a purported "escape hatch," allowing voters without sufficient ID to cast provisional ballots, the provision is entirely ineffective. As one brief argued, "indigent voters without the required identification . . . must make a minimum of two trips for their ballot to be counted." Yet, as conservatives have themselves noted, "provisional voters in most cases have little incentive...to verify their ID after the election." While the law does theoretically allow voters to cast a ballot without paying the fees necessary to gain photo identification, it's "[m]ore likely [that] they'll just stay home."

Ultimately, so-called "voter fraud" is an illusory concern fabricated by conservatives to artificially enhance the electoral prospects of Republican candidates by justifying the exclusion of voters who tend to vote for Democrats.

Justice Stevens' Surprising Vote

In the wake of the Crawford decision, at least one election law scholar suggested that the participation of Justice Stevens in the majority indicates that the decision was not political, as many others have feared. But this false security is presumptuous. The surprising composition of the controlling opinion should only reinforce concerns about the Court's elevation of politics over principle.

First, while Justice Stevens often votes with the Court's moderate bloc, he is a life-long Republican. As he himself noted in an interview last fall, "I don't think of myself as a liberal at all . . . . I'm pretty darn conservative." The widespread perception of Stevens as "a liberal" on the Bench reflects popular ignorance about shifts on the Court over the past 20 years. He wrote in Parents Involved that "no Member of the Court that I joined in 1975 would have agreed with today's decision." Justice Stevens' jurisprudence may appear moderate relative to that of his right-wing colleagues on the Court, but he remains a conservative Republican.

Justice Stevens may also have joined the majority in order to soften its opinion. On the one hand, because Chief Justice Roberts was in the majority, Justice Stevens lacked the power he wields to assign the opinion when he attains a majority opposing Roberts. On the other hand, Roberts may have wanted Stevens to write the opinion precisely in order to invoke his moderate reputation as a buffer from criticism.

In any event, Justice Stevens wrote the Court's opinion, and his influence on it was apparent.

For instance, among the many criticisms of Justice Kennedy's opinion in Carhart was its wholesale adoption of incendiary language and controversial facts in dispute. In that case, which addressed the constitutionality of so-called "partial birth" abortion procedures, Justice Kennedy presumptuously described the fetus as the "unborn child," and to women seeking abortions as "mothers."

To the extent Carhart can be placed on a rhetorical continuum, Crawford lies at the opposite end: rather than adopt controversial language reiterating a skewed view of the facts at issue to justify a decision upholding a statute (as did Kennedy in Carhart), the Stevens opinion in Crawford goes out of its way to point out the law's limited utility even as it upholds it. Other Justices in the majority would be unlikely to admit that polling-day voter identification fraud had never actually occurred in Indiana, or that voter ID laws fail to address any of the many real problems with elections.

Finally, Justice Stevens' dissenting view in Bush v. Gore may provide some indication as to the motive behind his vote in Crawford. In Bush, he wrote that "[a]lthough we may never know with complete certainty the identity of the winner of this year's Presidential election [due to the Court's intervention to stop the recount ordered by the Florida Supreme Court], the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Seen in this light, Stevens' vote with the Roberts / Alito / Scalia / Thomas / Kennedy block appears driven by the institutional fidelity apparent in the 18th century Marbury v. Madison decision, or Justice Kennedy's 1992 vote in Casey v. Planned Parenthood. In other words, Justice Stevens takes seriously his role as a Justice and his individual responsibility to protect the Court's institutional legitimacy against potential accusations of partisan bias. Stevens may have cast his vote specifically to insulate the Court from potential charges of politicization.

In any case, "the Court" is little more than its majority in any discrete case, and the right-wing block controlled the outcome regardless of Stevens' vote. An analysis of the Court's institutional politicization cannot place too much trust in the conscience of any individual Justice.

Conclusion

Indiana's voter ID law addresses an imaginary problem, fails to even consider the various real threats that continue to plague the electoral process, and forcibly disenfranchises legions of legitimate voters. The Court's decision upholding the law baldly violated its own prior precedents, and upheld electoral gamesmanship aiming to artificially benefit the political allies of the Court's right-wing majority.

The Court thus allowed a baseless legal obstacle to impede legitimate voters from exercising their fundamental right to vote. Even worse than this discrete decision, however, is its reversal of a longstanding historical trend, and what it portends for the future. Part II will further develop those themes.

Congress, the next Administration, and the American people should recognize the Court's willingness to aggrandize itself and increasing propensity to decide political questions. In order to address this monumental problem, Part III will present a constructive proposal to balance the Court.

¹Harper, 86 S. Ct. 1079, 1081 (1966). Back to text
¹ Reply in support of petition by petitioners Indiana Democratic Party, 6 (emphasis in original). Back to text