Tuesday, April 29, 2008

The Supreme Court's Voter ID Decision: Roundup and Initial Thoughts

The Supreme Court issued its decision in the voter ID case yesterday. Crawford v. Marion County Board of Elections challenged Indiana's voter ID law. The Court upheld the law in a 6-3 decision, though it was more of a 3-3-3 decision. The lead opinion is authored by Stevens, with Kennedy and the Chief Justice joining. Scalia writes an opinion concurring in the judgment and advocating a far more restrictive rule. He is joined by Alito and Thomas. Ginsberg joins Souter's dissent and Breyer dissents separately.

You can get a pdf of the case here.

Some reactions from around the blawgosphere. Lyle Dennison gives a pretty dense assessment on SCOTUS. Probably difficult for non-lawyers. Election law prof Rick Hasen who authored and amicus brief offers a more user-friendly breakdown.

Jack Balkin rails against the Court's enabling of partisan jiggering of the voting process:

    One of the most famous ideas in constitutional law is the idea taken from the Carolene Products decision: courts should closely scrutinize laws when government officials try to skew the rules of political competition to keep their party in power. It's hard to get better evidence of a concerted attempt to fix the voting rules on behalf of a particular party than in this case. I guess we would need a speech on the floor by the majority leader saying "This is designed to screw voters most likely to vote Democrat and throw us out of office." Indeed, even if there was such a speech, it's not clear that it would make a difference to the plurality's new rule. The rule of the case, apparently, is that there are no returns for a Carolene Products defect.
Georgetown prof. Marty Lederman gives a blistering assessment of the paucity of evidence proving the voter fraud problem the law supposedly prevents:
    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 . . . .

While the Court found against the plaintiffs in this case, they did not resolve all issues with voter ID laws. As noted before, this case involved a facial challenge to the Indiana law. If voter protection activists can find evidence that an ID law is being applied in a discriminatory manner, the combination of the court plurality (or at least 2/3 of it) and the dissent might find against the state.

Because Ohio is such an important state for voter protection, I'll be following up on this. My goal will be an "activists guide" over multiple parts, trying to break down the decision(s) and discuss
how activists should work at making the next case more solid.


Jill said...

Thanks so much for writing this Scott - esp. the links. You may remember but Bonobo of Blue Bexley had some interesting experiences to tell about on his blog in relation to some of this. Hope he writes too.