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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, May 6
Elmendorf on Crawford on Harper
Chris Elmendorf offers this comment for EL@M, regarding last week's decision from the Supreme Court in Crawford v. Marion County Election Board. It's characteristically thoughtful, provocative, and well worth reading. (Disclosure: He and I co-authored an amicus brief to the Court on the case.)

Particularly interesting is Elmendorf's discussion of the lingering uncertainty over the level of scrutiny to be applied in cases challenging restrictions on participation. As I suggested in my initial post on Crawford last week, one of the most important aspects of the lead opinion is its treatment of the Court's landmark decision in Harper v. Virginia Board of Elections (1966), which struck down a $1.50 poll tax on the ground that it violated equal protection. Elmendorf has this to say about the discussion of Harper in Justice Stevens' lead opinion (joined by the Chief Justice and Justice Kennedy):
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.)
I think Elmendorf is right to say that the lead opinion requires some sort of weighing of interests in all cases involving restrictions on participation, and not just in those which impose "severe" restrictions -- more on this below. But I don't think it's the lead opinion renounces the idea that "severe" restrictions warrant strict scrutiny. Rather, the lead opinion in Crawford understands Harper as a case that did apply something like strict scrutiny. At the start of his discussion of Harper (slip op. at 5). Justice Stevens describes Harper as "[a]pplying a stricter standard" than rational basis. This is consistent with Harper itself, which said that laws burdening fundamental rights like voting must be "closely scrutinized and carefully confined."

Of course, Harper came before the development of the three-tiered approach to levels of scrutiny that we know today. And, of course, Justice Stevens has never been a fan of the Court's three-tiered approach. (See, e.g., his concurring opinion in Craig v. Boren (1976).) Still, I don't think Crawford should be read as discarding the idea that some restrictions on participation are sufficiently severe as to warrant strict scrutiny. Later in the same paragraph, Justice Stevens characterizes Harper as a case involving "invidious" discrimination. Even though there wasn't a showing of intentional discrimination, and even though the tax was "rational," according to Justice Stevens, "it was invidious because it was irrelevant to the voter's qualifications." This suggests that there's still a threshold test, which was met in Harper but not Crawford, for determining whether to apply strict scrutiny.

In the passage Elmendorf quotes, Justice Stevens goes on to say 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" (emphasis mine). But appearances can be deceiving. In Harper, the law was "invidious" despite its relatively benign appearance. After its discussion of Harper, the lead opinion reaffirms the approach in Anderson and Burdick, cases that articulated the severe burden standard, while recognizing that there's no "litmus test for measuring the severity of a burden that a state law imposes ...." (slip op. at 7).

What all this means, I think, is that there's a spectrum of burdens, and that the justification that the state must provide will vary accordingly; but it's not to deny that, at one end of the spectrum, the state will have to show that its law is narrowly tailored to a compelling interest. Most if not all of the justices seem to agree that some voting laws warrant strict scrutiny. Joined by Justices Alito and Thomas, Justice Scalia reads Harper -- properly in my view -- as a case applying "strict scrutin[y]" (although I think he's wrong to characterize the poll tax law as "nondiscriminatory"). And Justice Souter, joined by Justice Ginsburg, acknowledges that burden imposed by Indiana's voter ID law isn't severe, but then go on to explain why that burden shouldn't be ignored altogether.

It thus appears that a majority of the justices agree that even laws that don't impose a severe burden get something more than deferential rational basis review. This is something on which I hadn't really focused before reading Elmendorf's comment. It's a point on which the lead opinion and the Scalia group sharply disagree. Justice Scalia would adhere to a more rigid two-tiered framework, applying a "deferential" standard where a "severe" restriction is lacking (Scalia slip op. at 1-2). By contrast, both the lead opinion and the dissenters seem to think there's got to be some evidence justifying a burden on voting, even one that isn't "severe." See Souter slip op. at 7 ("Although making voters travel farther than what is convenient for most and possible for some does not amount to a 'severe' burden under Burdick, that is no reason to ignore the burden altogether.") ; Breyer slip op. at 1 (looking to whether the law's burden is disproportionate to its benefits).

I thus think it's right to point out, as Elmendorf does, that Crawford softens the two-tiered severe/nonsevere framework that some courts have read Anderson and Burdick to have created. It doesn't reject the idea that "severe" burdens get strict scrutiny, but less now hinges on this question. That's because even laws that don't impose severe burdens on voting should (according to six justices, by my count) get something more than deferential rational basis review.

All this admittedly requires some not inconsiderable between-the-lines reading of the various opinions in Crawford. As Elmendorf puts it, those opinions "do little to clarify how the courts ought to weigh the 'voting related interests' assertedly at stake in constitutional challenges to voting mechanics." Indeed, the case may well leave the law more confused than it found it. The Crawford opinions can, however, be read to support the proposition that the state isn't off the hook just because its law imposes a "nonsevere" burden on voter participation. That's certainly how I'd read them, were I a voting rights lawyer trying to challenge an election administration practice after Crawford.

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Moritz College of Law The Ohio State University