Election deform.

The law, lawyers, and the court.
Oct. 24 2006 3:03 PM

Election Deform

The Supreme Court messes up election law. Again.

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As for burdens, plaintiffs have suggested that the burden of obtaining IDs will fall on the poorest voters, who don't have the money to obtain the necessary documentation, and on elderly and other voters, who may not be able to produce birth records because these records don't exist. The sponsors of voter-ID laws counter that fraud is hard to detect, and that most voters can obtain the requisite identification without a problem. Some states, like Indiana, have exceptions to voter-identification requirements for indigent voters.

Presumably there are empirical answers to both of these questions: How extensive is voter fraud and how serious is the risk of voter disenfranchisement? But the Supreme Court's statement in Purcell instead confuses the empirical analysis at the heart of these cases by suggesting, without any proof whatsoever, that concerns about voter fraud "[drive] honest citizens out of the democratic process and [breed] distrust of our government." The state of Missouri tried to make this same argument in defending its voter-identification law, but the Missouri Supreme Court quickly rejected it as unsubstantiated:

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While the State does have an interest in combating those perceptions, where the fundamental rights of Missouri citizens are at stake, more than mere perception is required for their abridgement. Perceptions are malleable. While it is agreed here that the State's concern about the perception of fraud is real, if this Court were to approve the placement of severe restrictions on Missourians' fundamental rights owing to the mere perception of a problem in this instance, then the tactic of shaping public misperception could be used in the future as a mechanism for further burdening the right to vote or other fundamental rights.

The Missouri court concluded that, "The protection of our most precious state constitutional rights must not founder in the tumultuous tides of public misperception."

Equally troubling is Purcell's language that the fundamental right to vote must be weighed against the interest of  "[v]oters who fear their legitimate votes will be outweighed by fraudulent ones [and who] will feel disenfranchised." As Harvard history professor Alex Keyssar recently commented: "FEEL disenfranchised? Is that the same as 'being disenfranchised'? So if I might 'feel' disenfranchised, I have a right to make it harder for you to vote? What on earth is going on here?" Moreover, the Supreme Court did not acknowledge that some voters might "feel" disenfranchised when the state imposes barriers on voting such as a voter-identification law without proof that such laws are necessary to deter fraud.

Purcell's bad consequences will extend beyond the voter-identification debate. Since Bush v. Gore, there has been a great increase in election-related litigation. And while no one likes unnecessary litigation, the case has served as a catalyst toward election reform across the country. If a state refuses to fix its antiquated election machinery or its unfair voting laws, litigation has become a way to force change. 

When courts get involved in election disputes, however, they run a risk of undermining the public's faith in the electoral process and in the fairness of the courts. To minimize that problem, I've argued that it makes sense to encourage litigation well before elections (that is to say, before the winner is known and everyone will question the biases of the judges) and to discourage litigation after the election whenever a suit might have been brought earlier.

But the Purcell opinion threatens to turn that logic on its head. Litigation brought just before an election can increase the risk of voter confusion, as the court suggests. But this risk should be balanced against the risk of disenfranchisement that cannot be fixed after an election. By discouraging pre-election lawsuits, the court suggests a perverse preference for lawsuits after the fact.

But if voters are indeed disenfranchised by an unconstitutional voter-identification law, a court cannot fix the problem after the fact for that election. Besides the "feeling" of (real) disenfranchisement, there is a more tangible consequence: In a close election, an unconstitutional law could make a difference in the outcome. If, as Democrats claim, voter-identification laws fall more heavily on their supporters, such laws could tip the balance in favor of Republicans.

In Bush v. Gore, a majority of the Supreme Court declared that "[a] desire for speed is not a general excuse for ignoring equal protection guarantees." But in Purcell, the court hurriedly allowed a potentially unconstitutional election law to remain in effect, "[g]iven the imminence of the election and the inadequate time to resolve the factual disputes." Whatever (unintended) good Bush v. Gore has meant for election reform will be dissipated by the court's hasty and ill-considered opinion in Purcell.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and author of The Voting Wars.