Posted: May 6, 2008
Judicial Review of Electoral Mechanics After Crawford
Last December, I published an article that advanced two descriptive claims about nature of the Supreme Court’s Storer-Burdick (or “electoral mechanics”) jurisprudence. The first claim, which I thought perhaps so obviously true as to be uninteresting, was that in spite of the Court’s nominal rejection of “litmus paper tests” in favor of open-ended balancing in this area, the Court’s decisions actually manifest a strong preference for simple, formal threshold tests by which challenged requirements may be sorted into the twin categories of presumptively permissible and presumptively impermissible (and subjected to lax review or strict scrutiny accordingly). My second claim, which I thought more provocative, was that Burdick misleads where it indicates that that scrutiny levels are to vary with the severity of the burden on the plaintiff’s rights of political participation. The Court’s decisions, I wrote, appear to be more concerned with ensuring that “electoral systems manifest certain properties in the aggregate (such as adequate openness to change, political accountability, and participation by a full cross-section of the citizenry),” than with “enabl[ing] the citizen or political organization that suffers a material burden to haul the state into court and make it provide a substantial justification for the imposition.”
Last week’s decision in Crawford v. Marion County Election Board was a testing ground for both of these claims. Much to my surprise, six Justices unequivocally affirmed that Burdick requires open-ended balancing, rather than a threshold classification of the challenged requirement as “severe” or “not severe.” To emphasize this point, Justice Stevens’s lead opinion read Harper v. Virginia Bd. of Elections, which held that Virginia may not require would-be voters to pay a $1.50 tax, as standing for the proposition that “[h]owever slight [a] burden on [voting] rights may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Slip op at 7. (I had treated Harper as the source of a special, per-se rule that express financial conditions on political participation are qualitatively “severe in kind” and thus subject to strict scrutiny, even if not practically burdensome.)
Justice Scalia argued strenuously for a two-tiered standard of review, making a fine case on precedential and pragmatic grounds, but he found only two other takers for his position. Ned Foley has suggested that the Justices who coalesced behind the lead opinion were concerned about the judiciary’s reputation for political impartiality, but evidently neither they nor the dissenters saw this as reason enough to develop the law in a formalistic direction. Those Justices (like Stevens and Kennedy) who in other settings have resisted formalism were not about to abandon their preferred approach here.
My second claim about the Storer-Burdick jurisprudence—that this body of law is concerned with the overall functioning of electoral systems, not just (or not primarily) with the justifiability of individuated burdens—fared considerably better. To be sure, the lead opinion by Justice Stevens (joined by Roberts and Kennedy) seems to invite as-applied challenges to the Indiana voter ID requirement by persons for whom it represents a “special burden.” Slip op. at 16. By way of example, the lead opinion references “elderly persons born out-of-state, who may have difficulty obtaining a birth certificate; persons who because of economic or other personal limitations may find it difficult . . . to assemble . . . required documentation to obtain a state-issued identification; homeless persons; and persons with a religious objection to being photographed.” Id. at 15. But none of the other Justices is on board with this approach.
Justice Souter, writing for himself and Justice Ginsburg, proposed that under Burdick, a court must measure the “extent” of a burden by considering not only its “character and magnitude” but also “an estimate of the number of voters likely to be affected.” Slip. op. at 3. Souter’s “number of voters affected” language is brand new, and comes without even the adornment of a “cf.” to some tangentially supportive precedent. Contrast the dissenting opinion of Justice Ginsburg (joined by Souter, Breyer, and Stevens) in Gonzales v. Carhart, 127 S. Ct. 1610 (2007), the Court’s most recent decision concerning abortion rights, in which the Justice made it clear that the burden of an abortion restriction that lacks a health exception should be appraised from the point of view of the woman whose health it may endanger, regardless of the total number of women affected.
Justice Breyer, true to form, wrote that the Court should assess the constitutionality of voter ID requirements by “balanc[ing] the voting-related interests that the statute affects,” weighing the burden on voters against the benefits in terms of fraud prevention and public confidence in the integrity of the voting process. Slip op. at 1. The Breyerian inquiry is clearly oriented toward the overall performance of the electoral system.
Much more surprising was the opinion of Justice Scalia, who at oral argument had welcomed the Solicitor General’s invitation to dismiss the plaintiffs’ facial challenge in favor of future as-applied challenges. His concurring opinion worked a 180-degree turn. “An individual-focused approach” to the Burdick inquiry, Scalia wrote, is inappropriate “as an original matter” because “the dos and don’ts need to be known in advance of the election, and voter-by-voter examinations of the burdens of voting regulations would prove especially disruptive.” Slip op. at 5. Scalia’s embrace of “generalized review” of the “overall burden” of election laws stands in sharp contrast to his usual insistence that the role of the courts is to vindicate individual rights, not to pass on generalized grievances or the overall functioning of social programs and political systems.
Even Justice Stevens may have hedged his bets, in the end, on whether a severe burden on any one voter would presumptively entitle that voter to an as-applied exemption from the ID requirement. On the one hand, he allowed that the ID requirement might not be justified “as to a few voters,” slip op. at 16, intimating that any voter who faced really serious problems obtaining ID would be entitled to such an exemption. But in another passage, he seemed to treat the seriousness of the burden on “voters who cannot afford or obtain a birth certificate” as a function, in part, of the number of voters so affected. Slip. op. at 17-18. (Then again, this latter passage may be specific to facial challenges.) In any event, to the extent that Stevens’s opinion is best read to authorize as-applied challenges by individual voters, it is not necessarily a controlling opinion going forward. It is conceivable that a voting requirement which incidentally but substantially burdens a very small number of voters would be deemed unconstitutional as-applied to those voters by Stevens, Kennedy, and/or Roberts, yet would be judged permissible under the global balancing analysis that Souter, Breyer, and Ginsburg apparently favor.
Apart from suggesting that the number of affected voters does matter in Burdick balancing, the various opinions in Crawford do little to clarify how the courts ought to weigh the “voting related interests” assertedly at stake in constitutional challenges to voting mechanics. Crawford thus leaves the lower courts in a precarious position: it demands that they make quintessentially legislative judgments about the overall reasonableness and good sense of voting requirements, while leaving them largely bereft of substantive guideposts for identifying and weighing the values at stake.