November 1, 2008
Court Orders DOJ to Produce OLC Memos on Warrantless Wiretapping
D.C. District Judge Henry H. Kennedy, Jr., on Friday ordered the Justice Department to produce OLC memos providing the legal justification for the administration's warrantless wiretapping program for in camera review in consolidated FOIA cases against the Department. ABC News reports here; see my recent related post here.
We already have a glimpse of the Department's legal analysis in support of the program. (The Electronic Privacy Information Center (or "EPIC")--the plaintiff in one of the cases--collects the legal documents here; see especially the FOIA documents on EPIC's site. The ACLU--the plaintiff in the other case--collects documents here.) And it's familiar. For example, an unsigned January 19, 2006, DOJ memo titled Legal Authorities Supporting the Activities of the National Security Agency Described by the President (under "Documents released by Justice Department Office of Legal Counsel, part 2" on the EPIC site) states
The NSA activities are supported by the President's well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. . . .
In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute [the AUMF] has confirmed and supplemented the President's recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland. . . .
I'll track this and let you know if and when the OLC memos become available and whether they say anything new.
Saturday Evening Review: Affirmative Action Scholarship
As I noted last week (22 October) here, Colorado has an anti-affirmative action ballot initiative that would amend the state constitution. If only every voter would read the new article by Devon Carbado and Cheryl Harris, The New Racial Preferences, 96 Cal. L. Rev. 1139 (2008), and consider how complex our notions of race, identity, and individual "qualifications" are. Carbado and Harris consider the anti-affirmative action proposals passed by California and Michigan in the context of the required "personal statement" for academic admissions.
Michigan's Proposal 2 and California's Proposition 209 both prohibit their state governments from discriminating or granting “preferential treatment . . . on the basis of race.” Both initiatives were aimed at eliminating state promulgated race-based affirmative action programs. For advocates of Proposal 2 and Proposition 209, affirmative action is the quintessential example of a preference on the basis of race; the policy benefits blacks and Latinos and burdens whites and, in some formulations, Asian Americans.
Supporters of both measures insisted that the state should not be in the business of allocating benefits and burdens along racial lines, particularly when doing so undermines another core American value: meritocracy. More generally, they argued that state policy should not be based on race at all but rather should embody the principles of colorblindness and race neutrality, concepts they deployed interchangeably to mean the non-utilization of race. Under this argument, Proposition 209 and Proposal 2 became a necessary means to a realizable and desirable colorblind end--the elimination of racial preferences. This racial logic made both ballot initiatives the heirs of Brown and affirmative action policies the heirs of Plessy. This Article neither defends affirmative action--though we support the policy-- nor critiques anti-affirmative action initiatives--though we oppose such measures.
Instead, our project is to take Proposition 209 and Proposal 2 seriously by engaging in something of a thought experiment: What concretely does it mean to make institutional processes colorblind or race neutral? We believe it particularly productive to explore this question in the context of school admissions policies, where selection procedures have been highly scrutinized and debated. The broad and interdisciplinary discourse on university admissions provides a rich context for considering the possibility and desirability of formally race-free admissions regimes.
College and university admission policies typically require an evaluation of “objective” measures of academic achievement, such as standardized test scores and grade point averages. The admissions process also includes an assessment of letters of recommendation and personal statements. While race is implicated in each of the foregoing criteria, we are most interested in the personal statement, which plays a particularly important role in an applicant's file but is rarely discussed in debates about race and admissions. Admissions officers read these statements to ascertain whether applicants can distinguish themselves and demonstrate that their potential contributions to the school extend beyond the applicants' numbers. Applicants, for their part, employ the personal statement as a way to quite literally inscribe themselves into and personalize the application. Given the significance of the personal statement in the application process, we will explore how “anti-preference” initiatives like Proposal 2 and Proposition 209 affect that role.
To that end, this Article asks: what do “anti-preference” mandates require with respect to personal statements?
In the Article, they present various hypothetical personal statements to "illustrate some of the subtle but significant ways in which racial advantages and disadvantages can persist in formally race-free admissions environments."
Their first "hypothetical" is a “personal statement” based on
Barack Obama's Dreams from My Father: A Story of Race and Inheritance.
The Teaching Assistant
Hello Fellow Professors! This week there is a lot to report. In fact, there is so much to report that it must be categorized by topic. This week's Teaching Assistant topics will be organized by the order in which they appear in the Constitution-
Article II - Executive Branch
There is much activity in the executive branch, as we would expect at this time in the presidential election cycle. There are three stories regarding the current denizens of our executive branch. First, Salim Hamdan has been in the news lately, as prosecutors attempted to seek a new sentence for Hamdan, arguing that the sentencing judge did not have the authority to give Hamdam credit for time served in pre-trial confinement. However, according the Wall Street Journal's Law Blog, a military judge denied this request. Consequently, Hamdan could be released as soon as December - but the operative word here is "could." The WSJ further notes that if Hamdan is declared an "enemy combatant," he could continue to be held at least until the end of the hostilities in Afghanistan. This would be an interesting addition to your discussion of this case in your course.
Second, from the "in case you missed it" files, last week President Bush sent U.S. special forces troops into Syria. While the details remain unclear, apparently the troops were sent into the area in search of an individual assisting the opposition in Iraq. Eight people were killed. The Constitutional implications are many. First, was the War Powers Resolution violated? If the number of troops was small, arguably, it was not, but if this is so, then this is an inherent flaw in the WPR. Second, our president launched an attack against a sovereign nation against a nation that has usually been our ally in the region. Sandy Levinson of Balkinization has a great assessment of the consequences of the action here.
Third, as my co-bloggers and I have reported, there is a tendancy for administive activity to increase in the waning days of an outgoing president's administration. Well, there is more - apparently, there is a practice of political appointees changing their status from political appointees to career employees. This practice - known as "burrowing in" is described in detail in this Mother Jones piece. Students might be interested to learn about the practice and how it effective circumvents some of the appointment powers of the incoming president.
Now on to the stories regarding those who hope to occupy the executive branch. First, Governor Sarah Palin's interpretation of executive authority is making news again. Recently, she reiterated her claim that the Vice Presidency is an office that has expansive powers. Over at Findlaw, Vikram Amar analyzes the issue, and though he concludes that the issue is more complex than one initially might think, Governor Palin is likely incorrect. Over at the Volokh Conspiracy, Johnathan Adler links to Glen "Instapundit" Reynolds' piece in the New York Times which takes an opposite view. Nevertheless, both pieces agree that a person who holds a position of power in the executive branch cannot simulateously serve as a powerful individual in the legislature.
Second, as is de rigeur each leap year in November, there are proposals for modifying our "beloved" electoral college system of voting for electors, rather than allowing the popular vote to decide. The American Constitutional Society has a great piece wherein James Rooney discusses a proposed compromise - states should direct their electors to vote for the candidate that recieves a majority of the popular vote. The proposal is more detailed and complicated than this, but it is interesting reading and your students will no doubt be interested in this topic in the next week.
Not to be outdone, the judiciary is also creating news. Yesterday, the D.C. Circuit ruled in the case of C-SPAN, et al. v. Federal Communications Commission. In sum, C-SPAN seeks to challenge regulations that will require cable companies to carry both analog and digital versions of broadcast channels beginning in February 2009. The court concluded that the petitioners lacked standing. The court found problems with the petitioners' assertions of injury, causation, and redressibility.
Fourteenth Amendment/Individual Rights
Finally, there are two stories about individual rights. First, on the equal protection front, the WSJ reports that South Carolina's Supreme Court held that an attorney's assertion that he struck a juror in a civil case because the prospective juror's dreadlocked hairstyle made counsel "uneas[y]" was insufficient to pass the Batson test. Most critical for Con Law purposes, the court rejected the notion that dreadlocks were race neutral because worn by people of various races and religions. Rather, the Court stated:
Regardless of their gradual infiltration into mainstream American society, dreadlocks retain their roots as a religious and social symbol of historically black cultures. For this reason, we hold that counsel’s explanation that the juror’s dreadlocks caused him “uneasiness” was insufficient to satisfy the race-neutral requirement in the second step of the trial court’s Batson analysis.
There was also a strongly worded dissent. The full opinion can be found here.
Second, in a case that may have some bearing on fundamental rights analysis, Eugene Volokh reports that a Pennsylvania appellate court recently held that in custody disputes, the court will not make any presumptions that would promote public school education over home schooling. Rather, the court will continue to use the best interest of the child standard. This case is interesting, as the choice of schooling falls within the fundamental right to raise one's children as one sees fit, but here, it also conflicts with the right of custodial parents (and non-custodial parents) to inculcate a child with certain values.
That's all for this week. (And honestly, isn't it enough?) See you next week!
Government Opposes Cert. in Al-Marri
Al-Marri, a Qatari national lawfully residing in the U.S., was arrested and turned over to military authorities. The government detained him in a Navy brig in South Carolina for more than five years. The Fourth Circuit ruled en banc that the President had authority to detain Al-Marri as an enemy combatant (assuming the bases for detention in the Rapp Declaration were true), but that he was entitled to some process to challenge his designation. The Fourth Circuit reversed and remanded.
The thrust of the government's argument against cert. is that Supreme Court review is premature: The Court ought to let the district court rule on remand.
But the brief also touches on the merits, addressing Ex Parte Milligan, Quirin, and Hamdi in an argument on domestic detention of enemy combatants. See especially pages 24-26 (of the brief, not the pdf)--good supplementary material for your lessons on these cases.
October 31, 2008
Virginia Election Lawsuit "on hold"
According to the article by reporter Tyler Whitley,
The election in Virginia will proceed as planned Tuesday without reallocating voting machines and extending polling hours.
But the NAACP, which filed suit against Gov. Timothy M. Kaine and the State Board of Elections, will monitor events on Election Day, and it will proceed with its lawsuit if long lines discourage people from voting, State Sen. Henry L. Marsh III, the attorney for the NAACP, said yesterday.
In federal district court in Richmond, the NAACP had sought an injunction to force the state to add equipment and extend the hours.
But it withdrew that motion yesterday before Judge Richard L. Williams was to consider it. "It was too difficult to get the issue resolved in time for Tuesday," Marsh said.
Stay tuned for further updates.
October 30, 2008
The Washington Post reports today that the Bush administration in its waning days is "working to enact a wide array of federal regulations, many of which would weaken government rules aimed at protecting consumers and the environment." This notwithstanding White House Chief of Staff Josh Bolton's May 9 memo setting a June 1, 2008, deadline for proposed new regulations, "[e]xcept in extraordinary circumstances." (Thanks to OMB Watch for the link.) The issue is nonpartisan: The article mentions a similar scramble--but to regulate, not deregulate--in the final days of the Clinton administration.
Here's some more material on Midnight Regulations (and good fodder for discussions on the unitary executive theory, separation of powers, and, well, plain old politics): Commentary by OMB Watch's ED Gary Bass is here; a discussion on NPR affiliate WAMU's Diane Rehm Show is here; ABC News reports here.
FDA Staff Objected to Preemption
The House Oversight and Government Reform Committee released a report and supporting documents yesterday showing that career FDA staff objected to FDA drug labelling requirements preempting state consumer lawsuits against drug manufacturers. (See my related post, Backdoor Preemption, here.) The WSJ reports here; LA Times reports here.
The Committee posts its report and collects the documents here. These documents illustrate the behind-the-scenes legal, political, and bureaucratic back-and-forth over preemption and other issues, offering a fascinating case study in how we get a claim of preemption via regulation in a case like this. I recommend especially the report's Executive Summary, the Supporting Documents for Section A, and the Supporting Documents for Section E.
Colorado's "Personhood" Amendment
NPR reported yesterday that Colorado's ballot includes a measure that would amend the state constitution to define "personhood" as beginning at the moment of conception. The ballot language is here. (Colorado is the only one of several states where similar measures were proposed to gain enough signatures to put this on the ballot.)
If this should pass, the state constitutional amendment would raise serious federal constitutional questions, to say nothing of the many practical questions. From NPR's report:
Jessica Berg, a professor of law and bioethics at Case Western Reserve University, says the amendment could lead to some bizarre situations--such as counting fertilized eggs in the state census and pregnant drivers using the HOV lanes.
The measure has received some surprise opposition. The Colorado Catholic Conference opposes it, because it fears a backlash from the courts: Courts would strike down the measure and, in the process, reaffirm current abortion laws. Perhaps the Conference remembers the result of Colorado's last effort to curtail federal constitutional rights by state constitutional amendment: Romer v. Evans.
October 29, 2008
The State Secrets Privilege
Professor Amanda Frost (American U. WCL) and Justin Florence (O'Melveny & Myers and G-town Center on National Security and the Law) recently released an American Constitution Society Issue Brief titled Reforming the State Secrets Privilege. The Brief traces the history of the State Secrets Privilege, argues that the Bush administration has asserted the privilege to an unprecedented degree, and offers advice on the privilege to a new administration. (I previously linked to this Brief, among others, in a post on ACS recommendations for a new administration.)
Frost and Florence's Brief provides an excellent review of the privilege, tracing it from Reynolds, to Totten and Tenet v. Doe, and through the more recent cases (three mentioned below). The Brief is all the better because it examines the privilege--and recommends changes--with reference to the bureaucratic and political landscapes within which the privilege operates. The Brief and related materials discussed and linked below well supplement a standard casebook presentation of the privilege.
Frost and Florence argue that the Bush administration's practice "represents a marked change not only in the number of assertions of the privilege, but also in the degree to which it is aimed at restricting access to the courts." They give two examples: assertion of the privilege in cases challenging extraordinary rendition; and assertion in cases challenging the NSA's warrantless wiretapping.
As to extraordinary rendition, the Second Circuit case Arar v. Ashcroft, the case of the wrongfully detained Canadian, provides good fodder for discussions of the privilege in litigation and the administration's arguments in support of the privilege. The Center for Constitutional Rights collects the litigation documents here. (Thank you.) See especially the government's letter and supporting documents to the district judge asserting the privilege. (The Arar case is headed for an en banc Second Circuit hearing in December.) Also take a look at the plaintiff's brief here and here (pages 10-17 of the brief, not the pdf) in El-Masri v. Tenet, the Fourth Circuit extraordinary rendition case.
As to the NSA program, the Eastern District of Michigan and Sixth Circuit cases in ACLU v. NSA provide good materials on the privilege. The ACLU collects all the litigation documents here and here. (Thank you.) These docs give an especially good sense of the arguments: the complaint; district Judge Taylor's ruling on the privilege and standing (see especially pages 3-15 on the privilege); the government's brief on appeal (especially pages 16-19 of the brief, not the pdf); the plaintiff's brief on appeal (especially pages 64-65 of the brief, not the pdf); and the Sixth Circuit's ruling (especially pages 3 and 6 for the privilege as it relates to plaintiffs' standing).
Congress has also gotten involved. Bills were introduced in both the Senate and the House to regulate the use of the privilege. These are well worth a look, along with Frost and Florence's recommendations, for examples of operational ways to regulate the use of the privilege.
For more, check out Frost's The State Secrets Privilege and Separation of Powers and Robert M. Chesney's State Secrets and the Limits of National Security Litigation.
"Lower" Federal Courts
As Con Law Professors during an election season, many of us are asked to appear on panels variously titled "What's at Stake for The Court," depending upon who wins the Presidential and other elections. While focus on the United States Supreme Court seems inevitable, I always try to broaden the perspective to include all the federal courts. An article today in The New York Times by Charlie Savage (available here) makes the point succinctly with regard to appellate courts:
[T] he appeals courts, which decide tens of thousands of cases a year, are increasingly getting the last word. While the Supreme Court gets far more attention, in recent terms it has reviewed only about 75 cases a year — half what it considered a generation ago.
Savage's article is entitled "Appeals Courts Pushed to Right by Bush Choices," but also includes district court judges in some of its analysis. Savage contends:
On Oct. 6, Mr. Bush pointed with pride to his record at a conference sponsored by the Cincinnati chapter of the Federalist Society, the elite network for the conservative legal movement. He noted that he had appointed more than a third of the federal judiciary expected to be serving when he leaves office, a lifetime-tenured force that will influence society for decades and that represents one of his most enduring accomplishments. While a two-term president typically leaves his stamp on the appeals courts - Bill Clinton appointed 65 judges, Mr. Bush 61 — Mr. Bush’s judges were among the youngest ever nominated and are poised to have an unusually strong impact. . . . .And Mr. Bush’s appointees have found allies in like-minded judges named by Mr. Bush’s father and Reagan.
The article profiles several Court of Appeals judges, including former ConLaw Prof Mike McConnell.
October 28, 2008
(Pre)Election lawsuit - Virginia
As the Washington Post has reported, the NAACP has sued Virginia officials claiming violations of the state and federal constitutions in failing to be prepared for voting on November 4.
Essentially, the complaint alleges that there are insufficient numbers of voting machines in districts primarily populated by racial and ethnic minorities, thus denying potential voters equal protection and due process.
As Mark Blacknell (of blacknell.net), an attorney and blogger, states:
The question, then, is whether Virginia’s done enough to prepare for 2008. And honestly, I have no idea. The numbers of new voter registrations in Virginia are certainly huge, and every bit of experience I’ve had indicates that actual turnout will match those numbers. The unknown, for me, is what local registrars have done. In Northern VA, you can hear elections officials encourage in-person absentee voting in order to avoid the crush of voters they expect. This is something I’ve never heard from local officials before, and it indicates to me that they’re worried about capacity to handle turnout. Then the very same officials will turn around and say that they’ve got everything covered for election day.
It does look like there will be many equal protection and due process arguments, in courts and classrooms, as well as in the press, in the near future.
D.C. District Defines "Enemy Combatant"
Judge Richard Leon of the D.C. District issued an order yesterday defining "enemy combatant" in Boumediene v. Bush, the habeas case ordered by the Supreme Court in its opinion last term of the same name. Judge Leon drew from the DoD's 2004 definition used by the CSRTs that for these very six detainees.
From the Order:
It is our limited role to determine whether definitions crafted by either the Executive or the Legislative branch, or both, are consistent with the President's authority under the [AUMF] and his war powers under Article II of the Constitution. And, if the definitions are consistent with the Constitution and the AUMF, we must interpret the meaning of the definition as it applies to the facts in any given case. Because, in the end, regardless of what definition is used, it will be a mixed question of law and fact as to whether the Government has met its burden of proof.
And the definition:
An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces, that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Lyle Denniston at SCOTUSBlog reports that the DoD's 2004 definition was used in 550 CSRTs, and that fewer than 50 found the detainee not to be an enemy combatant.
Mo. Court Enjoins Enforcement of Halloween Sex Offender Statute
Judge Carol Jackson of the Eastern District of Missouri enjoined enforcement of two key provisions of Missouri's law regulating activities of registered sex offenders on Halloween. (The NYT story is here; the Sex Crimes Blog rounds-up the various state Halloween sex offender restrictions here.) This offers a timely and interesting case study of the vagueness doctrine.
The Missouri statute reads as follows:
1. Any person required to register as a sexual offender . . . shall be required on October thirty-first of each year to:
(1) Avoid all Halloween-related contact with children;
(2) Remain inside his or her residence between the hours of 5 p.m. and 10:30 p.m. unless required to be elsewhere for just cause, including but not limited to, employment or medical emergencies;
(3) Post a sign at his or her residence stating, "No candy or treats at this residence"; and
(4) Leave all outside residential lighting off during the evening hours after 5 p.m.
Plaintiffs--John and Jane Does, who were convicted of statutory rape and who are currently caretakers of children--challenged the act as void for vagueness under the Due Process Clause of the Fourteenth Amendment (among other constitutional claims). The complaint is here. (Thanks to Courthouse News Service.)
Judge Jackson ruled that the plaintiffs were likely to succeed on their challenges to the first two sections, but not the last two sections, under the vagueness doctrine. Her memo and order are here.
October 27, 2008
Challenge to Oklahoma Abortion Law
The Center for Reproductive Rights is challenging an Oklahoma Law designed to place more stringent requirements on doctors performing abortion procedures.
Prior to the current law, Oklahoma required that all abortion patients be required to provide their "voluntary and informed" consent to the procedure. Additionally, women were required to be notified, twenty-four hours in advance of the procedure, that an ultrasound could be made available, as well as print and internet materials detailing the development of the fetus at a particular point.
Oklahoma Senate Bill No. 1878 changes the existing law regarding ultrasounds in several ways. First, it would require an ultrasound at least one hour prior to the abortion procedure. Second, it would require that ultrasound to be performed by the physician who is to perform the abortion or "a certified technician." Third, the doctor or technician must "display the ultrasound images so that the pregnant woman may view them" and explain to the patient in detail what is being shown on the ultrasound, including "the presence of cardiac activity" and "the presence of external members and organs."
What are the legal ramifications? There are several. First, the clinic challenging the provision states that it already performs an ultrasound on each pregnant woman for the purpose of determining the gestational age of the fetus. The difference here is that the ultrasound would be required to be made available for viewing. Only three other states have such a requirement at this time. However, the New York Times quotes Elizabeth Nash, public policy associate with the Guttmacher Institute, as stating that Oklahoma law is "unique" in its apparent intent that the pregnant woman actually view the ultrasound images.
Second, the statute imposes the ultrasound requirement with no exceptions for rape, incest, or the health of the mother. In fact, Governor Brad Henry (Dem.), vetoed the bill for this reason. However, his veto was overridden by the legislature.
Third, only doctors may perform the ultrasound under the new law. The clinics state that normally, the nursing staff will perform this function, leaving the doctors to attend to other matters. They state that it will be very difficult to comply with this law, unless the term "certified technician" is interpreted to include nurses.
This law is scheduled to take effect on Nov. 1. We'll keep you posted on the developments. In the meantime, a few teaching points:
1. Students should note that the case is brought solely under state law, and alleges violations of the Oklahoma state consitution, but not the federal constitution. In my experience, I have found that students frequently underestimate how relevant state constitutions are in "real life" practice settings. This case should serve as a useful reminder of that reality.
2. If the challenge were brought under the federal constitution, how would Casey apply? Arguably, proving a woman with more information is not such a bad thing. Moreover, the Court's support of waiting periods and other actions giving the state the opportunity to influence women would seem to indicate that they might not have a problem with ultrasounds being offered. However, what about requiring the woman to view the material? The statute does say that a woman can "avert her eyes" during the prodecure, but if a woman knows beforehand that she does not want a child, is this a case of mere information, or severe overreaching? Emily Bazelon of Slate has an interesting discussion of how a woman in such a position might feel.
3. My initial thoughts are that the fact there is no exception for rape, incest, or health, could be problematic. However, how would the recent decision in Gonzales v. Carhart affect this analysis? Arguably, Gonzales attempted to distinguish Steinberg rather than overrule it, and as such does not stand for the proposition that health exceptions are no longer required. But the question remains: Has Gonzales opened the door to laws such as Senate Bill 1878?
4. Finally, if the clinics are truly unable to provide a doctor-performed ultrasound for each patient, would that be an undue burden? The answer there, I think, is not as clear, as most of the cases focus on an undue burden to the patient, rather than whether regulations on doctors would make it more difficult to provide the services. It should be noted that in the state of Oklahoma, there are only three abortion providers. That's three for the entire state. Should practicality enter the analysis?
October 26, 2008
The Sunday Reader: Pitts on on Crawford's Numbers
One of the biggest problems with the plaintiffs' case in last term's Crawford v. Marion County Election Board--the Indiana voter-id case--was their lack of concrete evidence. The plaintiffs lodged a facial challenge to Indiana's voter-id requirement, but the record did not show the number of voters affected, the burdens on those affected, or anything particular about difficulties faced by indigent voters or voters with a religious objection to being photographed for a government id.
In short, the plaintiffs purused an aggressive facial challenge, but they failed to develop a supporting record. As a result, the Court had little trouble upholding the id requirement.
As we move towad the election, with several states enforcing voter-id laws like Indiana's law, we're witnessing a second round of litigation. But this time successful plaintiffs will have to come better armed: Plaintiffs who want to win will have to produce the numbers. And on the other side, states will be well served in figuring out what those numbers mean.
Professor Michael Pitts (Indiana U. School of Law, Indianapolis) just posted a piece on ssrn that moves us in an important step in this direction. In Empirically Assessing the Impact of Photo Identification at the Polls Through an Examination of Provisional Ballots, forthcoming in the Journal of Law and Politics, Pitts reports on his empirical research into just how many people "actually appear at a polling place on election day but . . . lack photo identification."
Pitts tirelessly surveyed officials in Indiana's 92 counties after the 2008 primaries on these four questions:
How many total provisional ballots were cast at the primary election?
How many total provisional ballots cast at the primary election were ultimately counted?
How many provisional ballots were cast at the primary election because the prospective voter did not have a valid identification?
How many provisional ballots cast at the primary election because the prospective voter did not have a valid identification were ultimately counted?
Pitts collected the answers and compared them to written records from more than half the counties to confirm the officials' answers.
[A]n estimated 2,770 total provisional ballots were cast with an estimated 399 (14%) of those provisional ballots being cast because the prospective voter lacked valid photo identification. Also at the primary election, an estimated 752 (27%) of the total provisional ballots were ultimately counted while an estimated 78 (20%) of photo identification-related provisional ballots were ultimately counted.
Pitts notes that these data may well provide fodder to both sides: Plaintiffs will argue that they show that individuals without ids were denied the vote, while the state will argue that they "prove the minimal impact photo identification has on the electorate as a whole" and, in any event, that denied voters were properly denied the vote.
He also suggests that this kind of study is just the tip of the iceberg in voter-id cases: Much more data need to be collected before we can reasonably get our arms around the magnitude and extent of the hassles and any wrongful disenfranchisement. This is the plaintiffs' lesson from Crawford.
Pitts's piece is an important first step in developing the data. And like any empirical work, his piece offers a refreshing opportunity to read scholarship in a different tradition. But the article offers much more than just numbers: Pitts, a legal scholar, ties his empirical work to the legal issues quite well, demonstrating clearly how his empirical work has constitutional relevance.
Pitts's article sets us (in academia) and plaintiffs (in litigation) on the right course. I hope that we'll see more of this kind of work around voter-id laws and other voting requirements, and, on the other side, on quantifying states' actual interests in preventing voter fraud. (The Court took this interest for granted in Crawford, despite the scant evidence of actual voter fraud produced by the state.)
Pitts's article is thoughtful, relevant, and important to the development of the academic literature and the litigation. I highly recommend it.