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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

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Refining the Bush v. Gore Taxonomy

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November 2, 2007

My follow-up contribution to the "Election Law and the Roberts Court" symposium is now posted on SSRN. Thanks to the insights of Dan Lowenstein's response to my initial piece (both also part of the same symposium), this follow-up advances the analysis of potential claims based on Bush v. Gore. It is certainly a quicker entry into this topic than the much longer initial piece.

These new Bush v. Gore claims are relevant to the Indiana voter identification case now before the Supreme Court, Crawford v. Marion County Election Board. In the lower courts, the Crawford plaintiffs raised one of these Bush v. Gore claims as part of their attack on the new statute (arguing that ambiguities in the statute would lead to unequal enforcement of the ID requirement). This type of claim was recently accepted by the district court in the Albuquerque voter identification case, ACLU of NM v. Santillanes, 506 F. Supp. 2d 598 (D.N.M. 2007).

Interestingly, there may be a way to use another type of Bush v. Gore claim as a defense to the Indiana statute. One important feature of that statute is that it has a much narrower range of acceptable forms of identification than other ID laws (including HAVA). An argument might be made that this narrower range is easier for poll workers to administer and therefore less likely to cause poll worker mistakes, of the kind that have been seen in connection with more complicated ID laws (including Ohio’s). Mistake-induced inequalities in the enforcement of a voter ID requirement present the basis for somewhat different version of a Bush v. Gore claim from ambiguity-induced inequalities (a point I discuss in both of my symposium pieces). Consequently, it might be argued that Indiana’s narrow ID law promotes voter equality—and avoids potential constitutional violations—by reducing the risk of these mistakes. As Stephen Ansolabehere said in discussing the preliminary evidence from a national study whose “most unexpected finding” was a high incidence of these mistakes: “Both sides in the heated debate over voter ID should be able to agree that a person's ability to vote should not depend on the luck of which administrator he or she draws.”

I will address this and related points concerning the constitutionality of Indiana’s voter ID law in a preview of Crawford to be published in the Election Law Journal.