Election deform.

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

Election Deform

The Supreme Court messes up election law. Again.

Supreme Court Justices. Click to expand.
The Supreme Court

It is easy to think of the Supreme Court's surprise decision last week, allowing Arizona to implement its new voter-identification law temporarily, as just another smackdown of the 9th Circuit Court of Appeals. The real significance of Purcell v. Gonzalez, however, lies not in the Supreme Court's rebuke of the 9th Circuit, but in the signals it sends courts about how to handle election-law cases, especially those filed close to an election. And from that perspective, this small case is a potential disaster that may undo some of the unintended good consequences resulting from Bush v. Gore, the 2000 decision ending the presidential election controversy.

Arizona voters adopted a new voter-identification law in 2004 as part of Proposition 200—a measure aimed at the problem of illegal immigration. Among other provisions, the law requires those who vote in person to produce either a photo identification, or two other pieces of identification, showing the voter's name and address. A coalition of voting-rights organizations filed a complaint alleging that the law violated federal election laws and the U.S. Constitution. A federal district court, without providing any reasoning, denied their request to delay implementing the law pending a full trial on the issues in the case. The 9th Circuit, also without providing any reasoning, reversed that decision, temporarily halting the voter-identification requirements (as well as its voter-registration requirements). The trial court then belatedly issued its statement of reasons for denying the order.

The state of Arizona then asked Justice Kennedy, who has jurisdiction over emergency appeals from the 9th Circuit, to stay the 9th Circuit's decision. The entire Supreme Court, in the legal equivalent of a lightning bolt, treated this as a request to hear the whole case on its merits, granted it, and then reversed the 9th Circuit in a surprise six-page per curiam (unsigned) opinion late Friday afternoon. 

The court acknowledged big constitutional issues on both sides of the voter-identification question:

Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. ... Countering the State's compelling interest in preventing voter fraud is the plaintiffs' strong interest in exercising the 'fundamental political right' to vote. … Although the likely effects of Proposition 200 are much debated, the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs' challenges. 

The court also signaled its disfavor with last-minute court interventions in the electoral process: "Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase." The court seemed especially concerned that the 9th Circuit gave no reasons for its decision to reverse the district court and stay implementation of Arizona's voter-identification law. The court did not stop to consider that its own eleventh-hour reversal of the 9th Circuit order "could confuse both poll workers and voters on Election Day."

At first glance, the Purcell opinion seems reasonable enough. Here was the closely divided Supreme Court issuing a unanimous decision in its first election-administration case since the 5-4 ruling in Bush v. Gore. The court in Purcell was careful to note that nothing had been decided yet in the lower courts with finality, and that courts of appeal should not lightly overturn district-court election-law orders just before an election because such conduct runs the risk of voter confusion. Moreover, the 9th Circuit's actions are hard to defend absent some indication from that court as to its reasoning.

Had Justice Kennedy simply issued a short order reversing the 9th Circuit, therefore, Purcell would have been no big deal. But it is the opinion of the court that is so troubling, both for future courts examining voter-identification laws and for future election-related litigation generally.

First, the Supreme Court in Purcell is guilty of sloppy empiricism that could unfairly derail other cases challenging state voter-identification laws. Across the country, voter-identification laws have become a partisan mess: Republican-dominated legislatures have been enacting voter-identification laws in the name of fraud prevention, and Democrats have opposed such laws in the name of protecting potentially disenfranchised voters. Courts have thrown out voter-identification laws in Georgia and Missouri, and the 7th Circuit is currently considering a decision upholding Indiana's voter-identification law. 

There are two basic empirical questions for the courts to sort out in these cases. First, is there enough evidence of impersonation fraud (where someone shows up at the polls and falsely claims to be a voter registered to vote there) to justify such laws, which no doubt place some burden on the right to vote? Second, how onerous are such laws? On the fraud question, there is no good empirical evidence of systematic fraud in the casting of votes that a state voter-identification card would do much to prevent. Most instances of fraud have involved voting by absentee ballots, and these laws have exempted precisely such absentee ballots from voter-identification requirements.

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:

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 is writing a book on campaign finance and political equality. Follow him on Twitter.