Thursday, July 21, 2011

Voter ID Commentary

Stephen Colbert gave his take on proliferating voter ID laws on last night's Colbert Report.  Several states have adopted voter ID laws in order to cut down on voter fraud, or to erect a barrier to voting, depending on who you talk to.  Evidence of voter fraud at the polls is scant, though, as Colbert correctly reports:

The Colbert Report Mon - Thurs 11:30pm / 10:30c
Voter ID Laws
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive


The Supreme Court upheld Indiana's voter ID law in 2008 in Crawford v. Marion County.  The case resulted in three opinions, with the Court spliting 3-3-3.  Justice Stevens's opinion, joined by Chief Justice Roberts and Justice Kennedy, concluded that Indiana's law was an even-handed restriction on voting, designed to protect the integrity and reliability of the electoral process.  As such, the plaintiffs, who lodged a facial challenge, had to show that they were burdened.  According to Justice Stevens, they failed.  Justice Scalia, joined by Justices Thomas and Alito, were even more deferential to the state.  Justice Souter wrote a dissent, joined by Justices Ginsburg and Breyer.  (The Indiana Supreme Court later ruled that the voter ID law violated the Equal Privileges and Immunities Clause of the state constitution.)

The plaintiffs in Crawford had two principal problems: their evidence of burden was relatively weak; and they lodged a facial challenge.  Based on Justice Stevens's opinion, if they litigated the case differently, they might have picked up Justice Stevens, and maybe even Chief Justice Roberts and Justice Kennedy.

The Court's approach in Crawford stands in contrast to its approach in another political rights case this Term, Arizona Free Enterprise Club, in which a sharply divided Court overturned Arizona's public campaign financing scheme under the First Amendment.  The doctrines in the two cases are different, to be sure, but the Court's different treatment of the states' efforts to guard against malfunctions in politics is striking.  In Crawford, the Court was highly deferential to Indiana's interest in protecting against voter fraud at the polls (despite the scant evidence in the record) and suspicious of the plaintiffs' (admittedly not terribly well supported) claims that the ID requirement was a burden.  But in Arizona Free Enterprise Club, the Court reversed: it was highly suspicious of Arizona's stated interest in reducing corruption and highly deferential to the plaintiffs' claim that the campaign finance scheme burdened their free speech rights (despite scant evidence in the record).  In short, the plaintiffs' evidence of burden was greater in Crawford, and the state's evidence supporting its interest was greater in Arizona Free Enterprise Club, but the Court credited the state's interest over the plaintiffs' burden in Crawford and the plaintiffs' evidence over the state's interest in Arizona Free Enterprise.

The Court's approaches in the two cases, which both involve key political rights, seem at odds.  The difference is (maybe) explained by the different doctrines involved in the cases.  The "even handed" restriction in Crawford triggered a balancing test, relatively deferential to the state; but the speech-burdening campaign finance scheme in Arizona Free Enterprise Club triggered strict scrutiny, not at all deferential to the state.  The different deference required by the different tests thus explains why the Court defered in two different ways.

But on the other hand, the fact that the Court analyzed these cases under these levels of scrutiny wasn't at all inevitable.  The Court in Arizona Free Enterprise Club could have applied a more deferential test--"closely drawn" to achieve "sufficently important interests," the standard that the Court uses for less speech-burdening campaign finance laws (like reporting requirements).  The state argued for this in that case.  Similarly the Court could have applied a more rigorous standard in Crawford--the strict scrutiny standard that the Court has applied to substantial burdens to voting, as in a poll tax (Harper) , e.g.  The plaintiffs argued for that in that case.  (Thus the Court might have applied greater scrutiny to the voter ID law in Crawford than to the campaign finance scheme in Arizona Free Enterprise Club!)  If the Court's deference in these cases seems inconsistent, remembering that the level of scrutiny itself was disputed in both of these cases may only reinforce that sense.  All things considered, the Court's approaches in these two cases seem at odds, to say the least--and together put a heavy thumb on the political scale in favor of those with resources (and against those without).


Campaign Finance, Cases and Case Materials, Fundamental Rights, News, Speech | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Voter ID Commentary:


Since the founding of our nation, Voter fraud has always been a problem. During the past couple of decades we have, through the use of modern technology, cracked down on the problem. Because we have done so, evidence of voter fraud is now scant and voters can have more confidence in election results.

Posted by: Oklahoma City Divorce Attorney Matt Ingham | Jul 22, 2011 6:47:02 AM

The Justices seem to lack a coherent theoretical basis for standards of review, or, at least, do not articulate any such basis. Voting is a fundamental right, for equal protection purposes anyway, and thus a challenge to a government restriction on voting should trigger strict scrutiny, if being a fundamental right deserves the highest protection under the Constitution. Isn't that the justification for applying strict scrutiny to government restrictions on speech, another fundamental right? Saying that a government interference with a fundamental right is "even-handed" and then using that conclusion to lower the standard of review eviscerates constitutional protection of fundamental rights (as the undue burden test does for abortion, for example). Where a fundamental constitutional right is at stake, the government should have the burden of showing that its action furthers a compelling interests, and does so in the least restrictive manner. The catalogue of "exceptions" the modern Court has developed for this principle does tremendous damage to our civil rights.

Posted by: Jeffrey G. Purvis | Jul 22, 2011 10:36:53 AM

Dear Jeffrey,

Well said.

The problem (or one problem) with the Court's holding in Crawford is that it now set the default for voter ID challenges: They don't substantially burden voters. (And by saying that Indiana's voter ID law didn't substantially burden voters, the Court also opened up a new range of voter-hassle laws--laws burdening voters in other ways in the name of curtailing voter fraud--to a lower level of scrutiny.) But Crawford was a bad test case. The challengers propounded fair evidence, but certainly not the best evidence, of substantial burden. And Indiana's law allowed some by-passes. Between these two features of the case--only fair evidence of burden, and the law's by-passes--it was easy (even if wrong, in my judgment) for a majority on the Court to conclude that there was no substantial burden.

I worry that lower courts and even the Supreme Court will extend the Crawford holding to the harsher voter ID laws and other voter-hassle laws that now seem so popular. Challengers will have to be extra vigilant in pleading and supporting facts that show a substantial burden if they want to get anywhere. (They may do well to lodge strong as-applied challenges in addition to their facial challenges.) They might also lodge their challenges in state court, under their state constitutions. (The Indiana Supreme Court's ruling in the follow-up to Crawford is a good model.)

Thanks for your comment.

All the Best,

Posted by: Steven D. Schwinn | Jul 22, 2011 2:04:57 PM

Post a comment