-
sponsorship
Ooof—well, Dawn, I certainly didn't intend to leave the impression there are no differences between Indiana Dems and Republicans. And perhaps I may be granted some dispensation for having lived in the district that elected Dan Burton, R-Ind., to Congress. Repeatedly. By overwhelming margins. My, I hope far less troubling, thinking was just that if one were to put the Indiana parties on a national scale of liberal to conservative, former Gov., say, Evan Bayh, would not fall very close to, say, Ralph Nader.
But my more serious point was to raise questions about how flawed Stevens' reasoning really is here. I'd like to think my bona fides in securing free and fair elections for all are decent, particularly after having spent the last two presidential elections, for example, doing poll monitoring in blistering Florida. And I've no doubt the Indiana ID requirement will pose a burden on some voters, most especially those at the economic margin. But I read the splintered decision to leave exactly those challenges open, no?
-
sponsorship
The "facial" vs. "as applied" distinction animates the minimalism of the Roberts Court. You may remember that Chief Justice Roberts gave a speech at Georgetown shortly after his confirmation, saying that what doesn't have to be decided in a case shouldn't be. But, of course, Chief Justice Roberts also said that he would be pursuing a larger number of unanimous outcomes—an aspiration that seemed to run aground in his second term when the court had one of the highest number of 5-4 opinions in decades. But the "facial/as applied" distinction that resurfaced in the Crawford voter-ID decision and that has played prominently also in areas of abortion (Ayotte; Carhart) and more recently in the lethal-injection case (Baze v. Ky) reveals that some may have dismissed the chief's efforts at achieving unanimity, or at least greater consensus, prematurely.
As the not entirely ideological 6-3 configuration in the Crawford case reveals, pronouncing an Act of Congress or a whole legislative enactment by the states to be unconstitutional on its face is strong medicine, and for that reason, it is especially unlikely to be pursued by any member of the court inclined toward preserving the idea of a more-tamed judicial posture. Justice Stevens may be substantively liberal, but in terms of his understanding of the judicial role, he is a moderate conservative. His dissent in Bush v. Gore, after all, was about keeping the court out of the presidential election. By distinguishing between the facial and as-applied challenge, Justice Stevens satisfies both sides of his personality: He can be conservative in facial outcome by upholding the statute's general contours while preserving and signaling that he would be substantively liberal in application—e.g., in Crawford being relatively quick to find in a later case that a specific election requirement was burdensome. For somewhat different but overlapping reasons, the "facial/as applied" distinction appeals to Justice Kennedy's Hamlet personality, since he can be for and against the statute at the same time—which may sound flippant, but it in fact reflects Justice Kennedy's commitment to particularized justice. See, e.g., his separate opinion in Rapanos (indulging a multifactored analysis of navigable waters under the Clean Water Act) or Parents Involved (similarly indulging the possibility of some uses of race that are not specifically visited upon the student, but might be used to lessen racial stratification by, for example, a siting decision of where to build a new school).
It should be noted that the "facial/as applied" distinction did not begin with Roberts, though it has been more successful under him. Chief Justice Rehnquist sought to use the distinction in the context of his handcrafted doctrine of 11th Amendment sovereign immunity, but there, he was using it not to sustain legislation, but to strike it down. Consider, for example, Rehnquist's proposed use of the distinction in Tennessee v. Lane. Rehnquist would have found the ADA to be invalid under the 11th Amendment on the theory that Congress had not legislated in a congruent and proportional way to address unconstitutional state behavior in a sufficiently targeted fashion. Rehnquist was able to reach this conclusion because he conceived of the proper focus to be facial rather than as applied. In other words, Rehnquist in essence told Congress that it could not legislate more broadly than necessary. In doing its legislative work, Congress had to think of the full range of applications of the statute as against the states and not just a particular application. As Professor Vik Amar once astutely pointed out, since Congress could not tell the states that they had a duty to accommodate the disabled in a public hockey rink as well as a state courthouse, the ADA, which had language that could cover both, was facially unconstitutional, even if in Lane it was properly applied to the denial of courthouse access. Note, however, how using the "facial/as applied" distinction in this way stands the general canon of constitutional interpretation that facial challenges are the most difficult to mount on its head. Rehnquist was effectively seeking to use that facial characterization to limit congressional power more easily, not to be more deferential to it.
It is sometimes said that the jurisprudence of John Roberts is a mere continuation of the Rehnquist era. There is some truth to that. But a closer examination of how the two chiefs employ the "facial/as applied" distinction differently—with Roberts setting a narrow compass of judicial activity and Rehnquist pursuing a more aggressive, less deferential judicial role—undermines that assertion.
-
sponsorship
A few modest additions to the early word on voter ID. First, for all those who would prefer to insist that Justice Stevens is easily pegged as a dyed-in-the-wool liberal, the Stevens-Roberts-Kennedy opinion in Crawford v. Marion County Election Board is Exhibit Q in a long list of decisions in which Stevens, for reasons entirely his own, votes against the liberal line. (His passionate dissent in Texas v. Johnson, in which the majority rejected on First Amendment grounds a Texas anti-flag burning law, is another one that leaps quickly to mind.) The great Justice Stevens is many things, but predictably "liberal" is not one of them.
Second, on Marty's discussion of the paucity of evidence of fraud - Marty is of course right the evidence that fraud has been an actual problem is thin indeed. But I read Stevens' opinion to say that addressing actual fraud isn't the sine qua non of legitimate state interests. Rather, a state measure that promotes the perception of election fairness - whether or not fairness is actually a problem (even in a truthiness sense), or whether the measure will do anything to help the putative problem itself - is an interest itself sufficient to survive facial challenge (assuming the burdens on voters are not too great). That's the upshot of the lengthy passage from the Carter-Baker Federal Election Reform Commission findings Stevens quotes: "The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important." And it's of course the import of the separate section the Stevens opinion devotes to the state's interest in "safeguarding voter confidence." Especially given the hit voter confidence has taken in the post-Bush v. Gore world, I admit I can't see anything wrong with acknowledging this as a legitimate state interest.
As for the burden side of the equation - how much of a burden is an ID requirement? - Stevens, relying heavily on the district court's finding of fact, concluded that he just didn't see the evidence of the statute's generally burdensome nature (although burdensome in specific cases, absolutely possible). So given a legitimate state interest and the possibility that remains of proving the law too burdensome in the next case down the road, I'm not sure Stevens was actually that far out on a limb here.
Finally, having registered to vote for the first time as a resident of Indiana (I attended a fine public high school just outside Marion County), and being asked upon registration to repeat twice (in all friendliness and sincerity) which non-Republican party I wished to associate myself with ("You want to register with what party?"), a word on Indiana politics. The Republicans are conservative. The Democrats are conservative. The difference between them is, conservatively speaking, negligible on a great many matters of state concern. Now it could well be that things have changed a lot in the past, um, number of years since I registered to vote. But I wouldn't put much stock on the view that the outcome of this particular case is likely to rock the Indiana political landscape anytime soon. For that matter, I'm not entirely sure how much a splintered Supreme Court opinion leaving open a host of other possible challenges to such laws does to change anything either - other than to launch a new wave of litigation that should keep us here at Slate occupied well beyond election day.
-
sponsorship
JUSTICE STEVENS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Justice KENNEDY join.
That's from Crawford v. Marion County.
It reveals yet again just how influential Justice Kennedy is: He's such a swinging justice that the opposite poles now won't even let him swing.
And it reveals yet again just how fractured the Court really is. The Chief can stave off division in important cases only by deciding as little as possible. But now it appears, that approach doesn't even really work: it only gets you three, rather than nine. So much for dreams of a new era of good feelings.
-
sponsorship
Marty nicely describes the paucity of evidence supporting Indiana's claim in Crawford v. Marion County Election Board that voter fraud is rampant in Hoosier land. After all, the Court long ago held in Croson that Richmond could not rely on experiences eslewhere to defend it's affirmative action policies. Well, if evidence of race discrimination in the capital of the Confederacy was too uncertain to count unless backed up with local studies, then why should Indiana be able to rely on the lone phony voter in Washington state to save it preferred policy from constitutional challenge?
Fair enough. But consider the other side: just how much evidence did the plaintiffs have to show that the new law would disenfranchise lots of folks? After all, the district court found that 99 percent of Indiana voters already staisfty the new standard and that there is good reason to think that the 1 percent who may not now, easily can. That could be wrong, of course, but the paucity of evidence on both sides here does suggest the reason for the Court's reluctance to decide this facially. Of course, ignorance is not always an excuse. A poll tax is hard to describe as anything other than a burden on the right to vote, no matter if there is evidence of just how many poor people it would block from going to the polls. But an identification requirement is a burden only if in practice it actually operates that way. So, one would think there would need to be a pretty substantial showing first to support a facial attack.
Plus: it's not clear that the politics of this ruling are as bad as Jack or Marty indicates. Here, the state has on its side election monitor extraordinairre - President Carter -- who chaired a presidential commission on election reform that seemed to approve of voter ID requirements as being legitimate. As Carter no doubt reasoned, it may well be much easier politically to pass real reforms to make registration easier -- which could substantilly increase voting by the now disenfranchised -- if strict anti-ftraud measures are also in place. I'd be hesitant to see this case, therefore, as a bad development for those that want to increase the voting ranks. It may instead be a precondition for freeing new possibilities in election reform that could, on net, lead to greater enfranchisement. In other words, if you ensure voters are who they say they are, we'll let you register more of them. Don't we want a Constitution that would facilitate such a trade?
-
sponsorship
continue reading at Balkinization . . .
-
sponsorship
I'm just beginning to read through the opinions in today's decision upholding the facial validity of Indiana's voter-ID law. Along with many others, I have argued that the law is unconstitutional because it imposes burdens on voting without advancing any governmental interest. Thus, to my mind, the most noteworthy paragraph in Justice Stevens' lead opinion is the one in which he tries to adduce evidence of an actual problem that this law would address:
The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.
The third piece of evidence (Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor) is not really on point, as Justice Stevens more or less acknowledges, because it was "perpetrated using absentee ballots and not in-person fraud," and thus such a fraud scenario would be unaffected by the Indiana law. So what we are left with is (i) "flagrant examples of such fraud in other parts of the country [that] have been documented throughout this Nation’s history by respected historians and journalists" and (ii) "occasional examples [of such fraud that] have surfaced in recent years."
For the first proposition, what does the opinion cite? Only this: an anecdote about in-person voter impersonation allegedly orchestrated by Boss Tweed in 1868. And for the second—occasional "recent" examples? Justice Stevens tips his hat to the Brennan Center's showing that "much of" the evidence of such fraud "was actually absentee ballot fraud or voter registration fraud." Nevertheless, he states that "there remain scattered instances of in-person voter fraud." The evidence for this? That in the 2004 Washington gubernatorial election, a partial investigation confirmed that one voter committed in-person voting fraud.
So we have an anecdote about Boss Tweed and a single modern voter engaged in the sort of fraud at issue here. If that's the best case that can be made in favor of the law ...
[UPDATE: Much more—characteristically excellent—analysis from Rick Hasen here. On the issue I discuss above, and a terrific summary of the holding, Rick writes:
In a nutshell, the approach [of the governing plurality opinion] boils down to this: under the balancing approach of earlier cases (which the opinion says comes from cases such as Anderson and Burdick), a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong. Indeed, though Justice Stevens says that there is evidence of fraud to justify a voter identification requirement, the actual evidence he cites in the footnotes is incredibly thin—either reaching back to 1868 (footnote 11) or a single case of impersonation voter fraud found in a recent gubernatorial election in Washington state (fn. 12). Moreover, Justice Stevens says an interest in preserving voter confidence can justify such laws as well, ignoring undisputed evidence such laws are not at all likely to instill voter confidence (and could in fact do the opposite). Nor does it matter if the motivation in passing the law is completely partisan. The law is to be upheld unless "such considerations had provided the only justification for a photo identification requirement." So those with partisan motive need only find a nonpartisan pretext for such laws. Once the state has posited its neutral reasons for such a law, the law is to be upheld if it doesn't impose serious burdens on most voters. For those voters who do face serious burdens, they must bring an "as applied" challenge where they present specific evidence applied to them as to why the law is onerous. This channelling of election law cases into as applied challenges—part of a recent trend of the Court—is going to make it tough for a lot of plaintiffs who are burdened, and is in sharp contrast with the Court's approach in earlier cases, such as the Harper case striking down the poll tax for everyone, not just poor voters. The evidence in as-applied challenges must be specific and tested in litigation; as Justice Stevens says responding to Justice Souter's dissent: "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication."
* * * *
I am disappointed by how cursory that [plurality] opinion was in its review of the state's interest in light of the highly partisan atmosphere of election administration, and I fear that, despite the Stevens-Kennedy-Roberts' opinion's best intentions, this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections. It is a real disappointment from that perspective.
(Read more from Convictions contributors about the Supreme Court's voter ID decision.)