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

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

The Court did not finish its sordid business in 2000. It continues to play a political hand, most recently in Crawford v. Marion County, which upheld Indiana's controversial and restrictive voter ID law last month. The ruling reflects the ongoing willingness of the Roberts Court to aggrandize itself and boldly decide political questions.[1]

Rather than an isolated 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. 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 traditional checks on the Court. Finally, Part III will consider its role going forward and present a proposal to effectively balance the Court.

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 a ballot 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."[2]

In Crawford, the Court reviewed 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 . . . ."[3]

But the Roberts Court (through the unlikely figure of Justice Stevens) contrived a new rule to uphold 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."[4]

It did not matter to the Court that partisan electoral interests were the only rational explanation for the law's enactment; its non-partisan justification of addressing "voter fraud" was pretextual. As one appellate judge suggested, Indiana's voter ID law is nothing more than a "not-too-thinly-veiled attempt to discourage voting-day turnout." Every Democrat in the state legislature opposed the bill, and every Republican supported it.

Impeding Democracy

According to its proponents, Indiana's restrictions on the right to vote aim 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."[5] 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 greater control over the district than 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, as well as disproportionate numbers of elderly, disabled, rural, poverty-stricken or homeless would-be voters, as well as those without cars.[6] 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."[7] 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." [8]

Similarly, some observers have taken comfort in the continuing ability of voters to mount "as-applied" challenges to the law. According to Justice Stevens' opinion, while the evidence in the case failed to justify "a facial attack on the validity of the entire statute," individual voters could raise challenges after the fact.[9] However, the electoral impact of the voters' exclusion would remain uncorrected, leaving essentially no incentive for any individual voter to undertake the time and expense of litigation to restore a vote after-the-fact.

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. Any judicial decision upholding a law with such clear partisan implications should be presumptively suspect.

Justice Stevens' Surprising Vote

In the wake of the Crawford decision, at least one election law scholar suggested that the surprising participation of Justice Stevens in the majority indicates that the ruling was not political, as many others have feared. For instance, observing that "[t]he controlling opinion features three Justices across the spectrum of the Court," Professor Rick Hasen suggested "that's good news for those who worried about the effect of this decision on the Court's legitimacy in election law cases."

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 last year in Parents Involved that "no Member of the Court that I joined in 1975 would have agreed with today's decision."[10] Justice Stevens' jurisprudence may appear moderate relative to that of his right-wing colleagues on the Court, but he remains a conservative Republican.

Moreover, Justice Stevens may have joined the majority for tactical reasons. On the one hand, because Chief Justice Roberts was also 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' influence on the Court's opinion was apparent. While it did uphold Indiana's voting restriction, the opinion remained openly skeptical of its basis. The other Justices in the majority would likely have been less restrained.

Among the many criticisms of Justice Kennedy's opinion in Carhart last year 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."[11]

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.

Similarly, Justice Stevens may have been in a position to shift the substantive contours of the law. For instance, to the extent his conservative colleagues sought to avert an obviously politicized 5-4 outcome, his willingness to vote for a middle position -- upholding the law but preserving the possibility of future as-applied challenges -- may have encouraged Chief Justice Roberts and Justice Kennedy to join him, rather than the more extreme position (rejecting any such challenge to the law) articulated by Justices Scalia, Thomas and Alito.

In any event, the ultimate 3-3-3 vote was unusual, suggesting potential diplomacy among the Justices over the course of their deliberative conferences.

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."[12]

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 of five Justices 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. The ultimate results are predictable: further restrictions on voting rights and continuing litigation over election results that undermine trust & confidence in their accuracy.

Even worse than the Court's discrete decision in Crawford, however, is its reversal of a longstanding historical trend of expanding voting rights. Worse even than that reversal is what the Court's audacity portends for the future beyond voting rights. 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. Given the Court's activist trajectory, Part III will present a constructive proposal to balance the Court and restore the separation of powers.

[1] Crawford v. Marion County Election Bd., 553 U.S. ___, No. 07-21 (2008).

[2] Harper, 86 S. Ct. 1079, 1081 (1966).

[3] Harper, 86 S. Ct. at 1083; see also Crawford, slip op. at 29 (Souter, J., dissenting) (citing Anderson v. Celebrezze, 460 U. S. 780, 793 (1983) ("[I]t is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular status").

[4] Crawford, slip op. at 20.

[5] Crawford, slip op. at 11.

[6] See Crawford, slip op. at 4 (Souter, J., dissenting); slip op. at 3 (Breyer, J., dissenting).

[7] Reply in support of petition by petitioners Indiana Democratic Party, 6 (emphasis removed).

[8] See Crawford, slip op. at 8-10 (Souter, J., dissenting).

[9] Crawford, slip op. at 5.

[10] Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2800 (Breyer, J., dissenting).

[11] Gonzales v. Carhart, 127 S. Ct. 1610 (2007).

[12] Bush v. Gore, 121 S. Ct. 525, 542 (Stevens, J., dissenting) (2000).

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