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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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Oral Argument in Voter ID Case: Initial Impressions

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January 9, 2008


For those of us who were hoping for something other than a 5-4 outcome in Crawford v. Marion County Board of Elections, the Indiana voter ID case, today’s oral argument was not especially promising. If there is any chance of a broader coalition on the Court, it most likely would be along the lines of rejecting plaintiffs’ “facial” challenge to the law in its entirely, while remanding the case for possible “as applied” challenges to particular aspects of the law’s enforcement to specific categories of affected individuals.

Three of the four conservatives on the Court—Chief Justice Roberts, Justice Scalia and Justice Alito—directed most of their questions to plaintiffs’ counsel, Paul Smith, and the tenor of their questions indicated support for Indiana’s law. (Justice Thomas, as is his custom, did not ask any questions.) The four liberals—Justices Stevens, Souter, Ginsburg, and to a lesser extent Breyer—appeared looking for a way to invalidate the statute, at least in part.

Justice Kennedy, the likely pivotal vote in this case (like so many others), asked few questions, although important ones, and did not reveal too much of his own thinking.

Thus, not surprisingly, the case sets up as having a 4-1-4 dynamic, although the overall impression from the argument is that the plaintiffs were having a harder time holding onto the sympathetic liberal wing of the Court than the government was having with the conservative wing.

Standing and Related Procedural Issues

The start of plaintiffs’ argument was dominated by questions of standing (whether these particular plaintiffs were the right ones to bring suit against enforcement of the law), but by the end of the hour it appeared that the case would not be decided on standing grounds. The Solicitor General of the United States, Paul Clement, appearing as an amicus for the State of Indiana, conceded that at least some of the plaintiffs had sufficient standing to present their facial challenge, which instead (in his view) should be rejected on the merits.

Clement made an evident appeal to Justice Kennedy on his point about the impropriety of a facial challenge. Citing Justice Kennedy’s opinion for the Court last year in the partial-birth abortion case, where the Court rejected a facial challenge while leaving open possible as-applied challenges, Clement argued that the Court should take a similar approach here. He even offered examples of as-applied challenges that might be successful, including in response to questioning from Justice Ginsburg one on behalf of indigent voters who are required to make a second trip to a government office in order to validate their provisional ballot if they lack the required ID. Clement stressed that an injunction ordering the state to permit affidavits of indigency to be executed at polling places at the time of provisional voting was a narrower—and thus better—remedy than invalidating the entire statute because of this particular burden.

Clement also acknowledged that an alternative remedy would be simply to count the provisional ballot, even though the voter lacked ID and did not make the second trip to execute the indigency affidavit. But he raised the point, often made by election law scholars (including this one) that pre-election litigation over voting procedures is preferable to post-election litigation over whether to count particular ballots.

In thinking about the relationship between facial and as-applied challenges, several Justices pursued this point about the timing of as-applied challenges—whether they could occur before the election or only afterwards. There seemed to be some confusion on this point at first, but Clement clearly stated that he thought pre-election as-applied challenges were possible, and it is likely that at least five Justices will gravitate to that view.

On the Merits of Plaintiffs’ Facial Challenge

In his rebuttal, Paul Smith made a plea for the validity of his facial challenge, rather than requiring a resort to a series of as-applied challenges, which he foresaw as chaotic set of uncertain exemptions. But it seems unlikely that he will be successful in his effort to have the law invalidated in its entirety. (The Court showed comfort with the as-applied approach in WRTL v. FEC, last year’s major campaign finance case.)

One of the major problems with Smith’s argument was his inability to distinguish between permissible and impermissible forms of voter identification. Asked fairly early on by Justice Alito whether his argument required invalidation of all forms of ID except a signature requirement, he hesitated, then conceded that it would. He appeared to backtrack, but under further questioning (including from Justice Kennedy) he again said that any additional ID requirement would be unconstitutional given the state’s failure to demonstrate the problem of voter fraud. This argument, then, would invalidate HAVA’s more lenient ID requirement, which is a concession I don’t think the plaintiffs wished to make or that the Court would accept.

Even in rebuttal, Smith could not give the Court a way to draw the line between valid and invalid rules, repeating only that it was a difficult job for the Court to do and that he was only counsel. But a key function of a lawyer before the Court is to show the Justices a way to decide the case in his client’s favor. At one point, Justice Souter exasperatedly asked Smith how to write the opinion to rule his way, but Smith could not offer a helpful response. (Maybe the plaintiffs have made a strategic judgment that they would prefer to lose than win narrowly.)

Less Restrictive Alternatives?

Justice Kennedy raised early on the issue of whether there were less restrictive means of achieving Indiana’s anti-fraud objectives, with the implication that the Constitution might require Indiana to pursue such means rather than the law it adopted. But in the cross-fire of questioning, the issue was dropped until much later in the argument.

The Solicitor General of Indiana, Thomas Fisher, defending his state’s law seemed to stumble a bit on this issue. Several Justices, especially Ginsburg and Breyer, pressed hard on the possibility that the state could offer photo ID at time of registration for any voter lacking one. Breyer observed that, from the state’s perspective of ensuring that the voter who casts the ballot is the same one who is registered in that name, this alternative is equally effective and yet obviously less burdensome than the current obligation to get a birth certificate in order to obtain a no-charge ID from the state’s Bureau of Motor Vehicles. Fisher responded by saying that Indiana has interests beyond assuring that the voter who casts a ballot is the same one that registers, implying that the state also cares that the registered voter is an eligible resident. But it is unclear how the requirement to obtain a birth certificate, which after all may come from another state, pursues that interest.

Indeed, Justice Kennedy specifically asked why the state could not provide some kind of alternative for individuals who had difficulty obtaining a birth certificate, like affidavits from two neighbors attesting to residency. Before Fisher could respond, Justice Scalia jumped in with a quip about whether it is unconstitutional to require birth certificates to get a passport, a rather tangential point given the Court’s voting rights jurisprudence. But by then Fisher’s time was up, and the point was dropped.

In rebuttal, Smith pointed to several states, including Michigan and Florida, as having less restrictive alternatives. Michigan permits an affidavit for those who lack the required photo. And Florida treats a photo-less provisional ballot as equivalent to an absentee ballot for verification purposes, meaning that both will count (without need for producing a photo) as long as officials find that the signature on the ballot’s envelop matches the registration signature on file. But it was unclear whether Smith was acknowledging that these regimes would be constitutional, given his previous concession at times that anything more than a traditional signature requirement would be unconstitutional.

In fact, in rebuttal Smith went on to say that the real problem of a voter ID law is that, even when a relatively minor inconvenience, it causes some would-be voters to stay away from the polls. Justice Kennedy jumped on this argument, asking incredulously whether plaintiffs really were asking the Court to invalidate a law because of a minor inconvenience to a small number of voters. Smith back-pedaled quickly by talking about the Court’s need to balance incremental burdens against incremental benefits.


Based on all this, the best guess would be that the issue of less restrictive alternatives will figure prominently in Justice Kennedy’s thinking—and may even emerge in an opinion—but seems unlikely to be enough to invalidate the statute as written in its entirety. Instead, Justice Kennedy may look for a way to incorporate the search for less restrictive alternatives into future as-applied challenges, which he along with the liberals will be inclined to leave open. The question then would be whether the four conservatives on the Court are sufficiently comfortable with future as-applied challenges that they and Justice Kennedy can agree on an opinion that explains the basis for leaving them open while rejecting the facial challenge. If so, we can look for a majority opinion written by or for the conservative wing of the Court, and if that occurs, will the liberals be willing to sign on?

In other words, even if there is a unanimous rejection of the facial challenge combined with an invitation to bring as-applied challenges, will there be unanimous reasoning to support that judgment? Unlikely. In fact, even with a unanimous judgment to this effect, given the 4-1-4 division within the Court, there might not even be reasoning that commands a majority and thus is entitled to claim that it is an opinion of the Court itself.