Election Law @ Moritz

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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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ID Equities?

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October 16, 2006

Should Arizona's new voter ID law be in effect on November 7 while a challenge to its validity under federal law remains in dispute?  Which federal court should decide this interim issue: the district court, court of appeals, or Supreme Court?

These are the two basic questions confronting Justice Kennedy, now that the case is before him.

The first question requires a preliminary assessment of the law's validity, as well as a comparison of the benefits and burdens of leaving it in force.  The second question prompts Justice Kennedy to consider whether, if his own answer to the first question differs from the court of appeals' and agrees with the district court's, he will leave the intermediate court's answer in place.

As to the first question, it is worth observing that Arizona's new polling place ID requirement is not as stringent as others subject to pending litigation.  It would permit two pieces of non-photo ID as an alternative to one piece of photo ID -- and would permit a wide variety of non-photo IDs to satisfy this requirement, including utility bills, bank statements, property tax records, motor vehicle registration or insurance forms, Native American tribal identification, other government-issued identification, or a voter registration card. Moreover, as mentioned previously, this ID requirement does not apply to any voter who would prefer to cast an "early" rather than regular ballot, and "early" ballots if obtained in advance may be cast at polling places on November 7 just like regular ballots.  (The new Arizona law has a separate proof-of-citizenship prerequisite for registration, but that rule can no longer affect the November 7 election, for which the period of registration has closed.)

As a relatively lenient ID rule, Arizona's new law stands a decent chance of being ruled valid in the end.  If this polling place ID rule is no good, does federal law permit the states to adopt any kind of documentary ID requirement applicable to all would-be voters seeking to cast conventional polling place ballots?  Or does federal law limit the states to the imposition of signature and affidavit requirements (apart from the limited scope of documentary polling place ID imposed by the congressional Help America Vote Act of 2002)? 

Ironically, by exempting "early" voting from the polling place ID requirement, the leniency of Arizona's overall regime might be its undoing.  The ID requirement cannot serve much purpose if it is so easy to circumvent.  On the other hand, in terms of balancing the law's benefits and burdens for the purpose of determining whether it should remain in force in the interim, the ease with which citizens may avoid its applicability means that it does not impose much of a hardship either. 

Given the general presumption in favor of letting a state enforce its laws, one could argue that the better answer to the first question would have been to let the new ID law stay in effect for the November 7 election, since its inapplicability to "early" voting (again, available to all registered citizens on demand) means it does not operate as a barrier to any eligible citizen's exercise of the franchise. 

That is what the district court decided, but it is not what the court of appeals has since ruled.

Yet even if the court of appeals erred in overturning the judgment of the district court, it does not follow that Justice Kennedy, acting on behalf of the Supreme Court, should reinstate the district court's decision.  For the second of the two questions identified at the outset raises institutional considerations.  Specifically, to what exent should the Supreme Court engage in a simply error-correcting function, substituting its better judgment for the deficiencies of the intermediate appellate courts, rather than saving its emergency interventions for the rare circumstances in which the overriding national interest demands that an erroneous appellate determination cannot stand?

Whatever else one may think of this Arizona ID case, it does not seem one that in its current posture requires the urgent interposition of the Supreme Court.  The same inapplicability of the ID requirement to "early" ballots, which means that the court of appeals had no compelling reason to block the law from being in effect on November 7, also means that the state has no pressing need to reinstate its polling place ID requirement.  The paradoxical juxtaposition of no ID requirement for early ballots, which can be submitted alongside regular ballots at polling places on Election Day, means that the balance of equities in this case rather oddly wash themselves out.  There was no strong justification for judicial intervention in the first place, but now there is no strong basis for undoing the intervention. 

Moreover, as the plaintiffs point out in their opposition to the State's application for a Supreme Court stay of the court of appeals order (filed Monday afternoon), the current circumstances are no longer exactly as they were when the issue of interim judicial intevention was initially presented.  Now that the court of appeals has halted enforcement of ID rule on November 7, to undo that order would not return the situation to where it was before the court of appeals considered this move.  Word has since gone out that the ID rule is now unenforceable, and retraction of that message may not reach some of those who have since relied on it (including, perhaps, by abandoning plans to obtain an "early" ballot that they previously thought they needed). 

If the court of appeals' order were an egregious error that truly negated the ability of the state to conduct a fair election, then the fact that some citizens had taken advantage of the order before the Surpreme Court had a chance to review it would not be a sufficient reason to prevent the Court from rectifying the situation as best as it could.  But, as already explained, the court of appeals' decision here is rather inconsequential even if it might be erroneous.  One could conclude, therefore, that Justice Kennedy and the Supreme Court would serve the nation best if they simply let it stand, thereby leaving ID-related litigation to unfold further in the lower courts.

Should a conflict eventually emerge around the country among lower-court decisions on the issue, there will be ample opportunity for the high Court to resolve the issue.  There is, however, no apparent necessity for the Court to involve itself in the fray at this point.