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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.
Friday, May 2
An Election Day Registration Bill
A bill has been introduced in the Senate that would require states to allow election day registration (EDR) in federal elections. The bill may be found here and co-sponsor Senator Russ Feingold's statement in support of the bill here.

EDR has been used in nine states some of them since the 1970s. We therefore have quite a bit of evidence on its efficacy. As detailed in our recent report From Registration to Recounts: The Election Ecosystems of Five Midwestern States, it's been very successful in those states, increasing participation without any evidence of an increase in voter fraud -- the main argument that's usually used against EDR. Minnesota and Wisconsin are particularly good examples of the positive effects of EDR, as documented in that report.

Social science research has consistently found an increase in turnout due to EDR, probably in the range of 5-10%, as documented in testimony that I offered to the House Adminstration Committee when it was considering another EDR bill late last year. Senator Feingold's statement in the support of the bill thus aptly cites this as an example of the "moneyball approach to election reform," which I discussed in this post. That's the idea that election reform ought to be based on solid empirical evidence rather than intuition and anecdote -- something that's too often been the case by reformers on both the left and the right.

Another benefit of EDR is that it reduces reliance on provisional ballots and, with it, the likelihood of post-election litigation over whether those ballots should be counted. As I stated in testimony on another EDR bill that was being considered by the House Administration committee late last year:

While the turnout benefits of EDR are widely recognized, another advantage has received virtually no attention: allowing EDR can almost entirely eliminate the need for provisional ballots. That is primarily due to the fact that voters whose registration forms are mishandled need not cast a provisional ballot in EDR states. Instead, they may simply register at the polls. Consider, for example, voters whose names do not appear on registration lists when they appear at the polling place for any of the following reasons:

-a third-party registration group soliciting voter registration inadvertently failed to return the form,

-a public agency that took the voter's registration application, such as a state motor vehicle office, failed to transmit that registration to the appropriate county election office, or

- the county election office made a data-entry error, say in the voter's home address, causing the voter's not to appear on the registration list for his or her polling place.

In each of these circumstances, the voter's name would not appear on the registration list for the proper polling place when he or she shows up to vote on Election Day. In a state without EDR, that voter would be relegated to the provisional voting process. In an EDR state, by contrast, the voter would be permitted to register and vote on Election Day, provided that he or she satisfied state requirements for confirming eligibility.

The data on provisional voting confirms that EDR states are much less reliant on provisional ballots than other states. In the 2004 election, for example, the EDR states of Maine, Wisconsin and Wyoming all had 0.05% or less of their registered voters cast provisional ballots.1 Maine had only 483 provisional ballots cast statewide, while Wisconsin had only 374, and Wyoming just 95.2 In Minnesota, there were zero provisional ballots cast in the 2004 presidential election. By contrast, almost 2% of Ohio's registered voters - a total of 157, 714 people - cast provisional ballots in 2004. Quite clearly, the much larger number of provisional ballots cast increases the likelihood of a close election turning into a disputed election. It is not difficult to imagine the nightmare scenario that would have emerged in Ohio in 2004, had the margin of victory been closer. The two candidates would have wound up arguing over whether provisional ballots should be counted in counties across the state, just as they argued over whether punch card ballots should be counted after Florida's 2000 election.

Greater participation in our democracy is thus only one of the benefits of EDR. Adopting EDR can virtually eliminate the need for provisional ballots and, with it, a potential source of contestation and litigation over close elections.... Put more simply, EDR promotes the value of finality as well as access, and does so without sacrificing electoral integrity.

For these reasons, I hope Congress will give serious consideration to this bill.

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