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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Tuesday, April 29
Crawford: It Could Have Been Worse
That's about the best that can be said about yesterday's opinions in Crawford v. Marion County Election Board. Following the precedent set by LULAC v. Perry and Randall v. Sorrell in 2006, the Court issued a splintered decision in an important constitutional election law case. The lack of a majority opinion, and the narrowness of Justice Stevens' lead opinion (joined only by the Chief Justice and Justice Kennedy), will probably limit the harm done by the Court's decision to uphold what is probably the strictest and most exclusionary voter ID law in the country.

One couldn't realistically expect much better from the current Court. In a variety of areas -- most notably abortion and racial integration of public schools -- the Roberts Court has taken a dramatic turn to the right. While nominally adhering to past decisions, the Court has in fact eviscerated precedent, something that Justice Scalia in last year's Wisconsin Right to Life v. FEC referred to as "faux judicial restraint." What almost certainly prevented the Court from doing similar damage in Crawford is the fact that, in something of a surprise, Justice Stevens was part of a majority of justices voting to uphold Indiana's restrictive law, which requires government-issued photo ID in order to vote at a polling place and have that vote counted.

Justice Stevens' lead opinion, to its credit, starts with the precedent most at risk in Crawford: the Court's 1966 opinion in Harper v. Virginia Board of Elections which struck down Virginia's $1.50 poll tax. In that case, the Court applied what Crawford properly characterizes as a "stricter standard" than rational basis to a law that imposing a voting condition that would disproportionately exclude poor people. As I set forth in this recent comment in the University of Pennsylvania Law Review's online supplement, Harper ought to be the starting point for evaluating claims that an election practice disproportionately excludes a particular group from participating in elections.

In Crawford, the lead opinion declines to apply a comparably strict standard, despite the fact that Indiana's law seems comparably designed to exclude poor voters, not to mention those who are elderly, disabled, students, and racial minorities. It's certainly true that the evidence of disparate impact on these and other groups was pretty thin in the case. But the same could be said of Harper, which didn't rest on empirical research that a poll tax would have a disparate impact on poor voters. If anything, Indiana voters' empirical case was stronger.

So what distinguishes Crawford from Harper? The lead opinion's answer seems to be this: "Although the state's justification for the [poll] tax was rational, it was invidious because it was irrelevant to the voter's qualifications." The problem here is that the same can be said for Indiana's law, given the utter lack of evidence showing that the state has any problem whatsoever with voters going to the polls pretending to be someone they're not -- which the lead opinion admits to be the only problem that the state's ID law could possibly remedy. Even if one looks beyond Indiana's borders the evidence of in-person voting fraud is exceedingly scant, as a careful reading of the lead opinion (especially footnotes 11 & 12) makes clear. The evidence of fraud that exists is mostly with absentee ballots, a problem to which a polling place ID requirement is irrelevant, as the lead opinion admits.

The lead opinion goes on to weigh the burdens on the voter against the state's asserted interest, concluding that Indiana's law doesn't impose "substantial burdens." It's here that I have my most serious disagreement with its reasoning. Its analysis focuses on the individual voter, reasoning that, even for poor voters, there are ways of complying with Indiana's law. But this really misses the point of the law -- both from a judicial perspective and almost certainly from the perspective of those who enacted it.

It's probably true that, for most individual voters, the burdens imposed by the law are surmountable. Even a voter who doesn't drive can purchase a birth certificate and then take a bus trip to the BMV to get a photo ID card. But the focus on the individual voter overlooks the systemic impact of such a photo ID requirement. Some voters will surely go through the hoops required to get photo ID. But others won't wait in a line at the BMV to get photo ID, only to wait in another in order to vote. The legislators in Indiana who voted for the law, almost all Republicans, surely know this -- a cynic might say that the disparate burden on likely Democratic voters is exactly why they voted as they did.

In short, the focus on the individual voter misses the likely systemic impact of the law upon certain groups, in this case poor, disabled, minority, elderly, and student voters. The question upon which the Court should have focused is whether Indiana's law would have a skewing effect on the electorate, as Chris Elmendorf and I argued in our amicus brief.

Here again, it's fair to point out that plaintiffs' lawyers put together a pretty weak case. And the Court does point this out, in declining to strike down Indiana's law on its face: "[O]n the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." Ironically, though not uncommonly, the weakness of plaintiffs' evidence helps avoid some really bad law.

This leaves the door open to challenges to other election administration laws, where plaintiffs are able to put together a stronger evidentiary case than did the Crawford plaintiffs' lawyers. It's not clear from the lead opinion how much stronger that evidence would have to be to be in order to support a facial challenge -- but from a voting rights perspective, that lack of clarity is almost certainly a blessing. In fact, the Court even leaves the door open to an as-applied challenge to Indiana's law, by someone presenting stronger evidence of a burden.

While Crawford doesn't close the door on facial challenges to election laws, it does continue the Court's inching toward as-applied challenges in these cases, also evident in its recent decision in Washington State Grange. This is a troubling trend, at least when it comes to election administration cases like this one. The reason is that it will often be difficult to know the precise impact of a particular practice on individual voters before an election. It may be difficult for plaintiffs to establish standing before an election to challenge rules pertaining to ID, registration list maintenance, provisional ballots, or polling place operations, since no particular voter can say for sure that she'll be impeded from voting due to that practice.

What this means is that great weight will end up being placed on the back end of the election process, particularly on the post-election mechanisms for resolving disputes. It will put particular pressure on a state's provisional voting system, where a lot of these questions are likely to be worked out. A voter who doesn't have ID, for example, should still be allowed to cast a provisional ballot. It will be left for the parties and candidates, in the event of a close election, to fight things out afterward. We've seen before what can happen when problems are shunted to the back end of the process. Was 2000 really that long ago?

On this point, I am somewhat surprised to find myself in partial agreement with Justice Scalia. Joined by Justices Thomas and Alito, Justice Scalia rejects the focus on "individual impacts" in ascertaining the burden imposed by a law. Here, I'm with him. The main focus should be on the systemic impact of a law.

At this point, Justice Scalia and I would go in opposite directions. He would uphold virtually all laws alleged to systemically exclude certain classes of voters, at least where they don't affect a suspect class. He relegates Harper to his cryptic footnote *, which acknowledges that it "strictly scrutinized" Virginia's poll tax law. Justice Scalia then says that "we have never held that legislatures must calibrate all election laws, even those totally unrelated to money, for their impacts on poor voters ...." I'm not quite sure that I understand what this means. Perhaps Justice Scalia means to sweep Harper into the dustbin of history, or at least confine it to its facts. If he means to suggest that Indiana's law (unlike the poll tax) is really "unrelated to money" -- well, that's a pretty hard one to swallow, even on the relatively meager record in this case.

This brings me to an important lesson for voting rights lawyers who lose in lower courts: Think long and hard before seeking Supreme Court review. That's true even when you've got a poorly reasoned lower court opinion like the one Judge Posner authored for the Seventh Circuit in Crawford (see this post by Bob Bauer). In retrospect, it was a major error in judgment for plaintiffs' lawyers to seek cert in this case. This isn't just Monday-morning quarterbacking. Most of the civil rights community knew that taking this case up to the Supreme Court was a bad idea, given its present composition.

It's also clear that the Supreme Court should not have granted the cert petition in this case. The more prudent course would have been to let the issue percolate in the lower courts and, perhaps even more important, to let the empirical research on the impact of voter ID develop further before taking up the issue. Again, this isn't just Monday-morning quarterbacking. As I said in an article published last year: "Instead of granting certiorari in Crawford, the Court should have awaited a case presenting a more fully developed record that included empirical research on the harms and benefits of voter identification." Perhaps the most conservative justices on the Court (i.e., Justices Scalia, Thomas, and Alito) were hoping for a decision that would give states carte blanche on voter ID laws, but fortunately that's not what this set of opinions does. Instead, Crawford accentuates the lack of coherence in the Court's jurisprudence when it comes to election law.

But, as I say, it could have been worse.

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