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IN
By Justin Levitt – 05/19/08
The Supreme Court's recent
Crawford decision on Indiana's photo ID law was a statement on
evidence (albeit mixed in its
devotion to facts), and not a call to arms. And so far, few states have gotten riled up, preferring instead to spend their little remaining legislative time this session on real solutions to real problems, rather than disenfranchising
elderly nuns.
Political operatives in two states, though, decided that this was an opportune moment to try to tilt the electoral scales for 2008, and pressed legislation creating—not solving—problems for their own citizens.
We've written before on Missouri's firestorm over a proposed constitutional amendment on restrictive photo ID and citizenship rules. At the end of the legislative session, and with the potential to swing the 2008 election on the line (given the history of photo-finish statewide races in Missouri), the amendment died on the vine last Friday after lawmakers ajourned for the year without bringing it to a vote. And then there's the neighbor to the west, which was trying mightily to keep up with the Joneses.
Read the rest of this story ...
Tags: Democracy, Voting Rights & Elections, Voter ID, Voter Registration Drives
By Myrna Pérez – 05/09/08
The story of the elderly Indiana nuns who were turned away from the polls because they lacked voter ID has won wide attention. Those who urge harsh voter ID laws, supposedly to block voter fraud, can't be too happy. So now they have started to respond. Their answer: attack the nuns!
John Fund, writing on the Wall Street Journal website, charges that the nuns could have voted, because they could have gotten "provisional ballots." Let's see: to get the ballots, the nuns, in their 80's and 90's, would have had to go first to the polling place ... then to the state Bureau of Motor Vehicles office ... then to the county seat within ten days. All to do something they could have done their entire lives, i.e., exercise their right to go to the polls and vote.
Or, he says, they could simply have voted absentee - again, something these voters never were forced to do before. It hardly seems fair to tell citizens, "You can vote without a drivers license, but only if you do it from hiding and make your plans long in advance." (P.S., if the goal is to prevent fraud, couldn't a trickster also vote absentee?)
There's a better answer. Let's stop passing laws that make it harder for eligible citizens to vote. Let's focus instead on passing laws to make the American voting system the best in the world. That would mean electronic machines that work and give paper records, professionalizing election administration so partisan hacks don't oversee elections, and a move to universal voter registration - where the government makes sure that eligible voters are on the rolls and can cast their ballots.
Improving democracy? As the nuns might say, it's time to get in the habit.
Tags: Voting Rights & Elections, Voter ID
By Maggie Barron – 05/08/08
How many lawyers does it take to run an Election
Protection Hotline? You can come up with your own punchline, but the actual
answer is about thirty at a time, in five hour shifts, sitting around a board
room table on an otherwise empty floor of a mid-town law firm, fielding
hundreds of calls from primary voters in Indiana
and North Carolina.
In terms of voting issues, the big
story was the group of elderly nuns who had been turned away from the polls
because they did not have current photo ID. (So much for the Supreme Court divining
that voter ID laws would probably not really impact any voters). Other calls
ran the gamut, from questions about polling location to reports of machine
malfunctions, from possible voter intimidation to confusion as to whether or
not people with felony convictions could vote. One North Carolina woman had been mistakenly
registered as a Republican, which meant she could not vote for either of the
Democratic candidates. Another called, upset that she had been asked to leave a
polling place because she was wearing a t-shirt with her chosen candidate's
name on it.
For all these anecdotes, there was a certain type of call,
perhaps the most basic, that has stuck with me. Throughout my shift, I answered
calls from people who had been registered, had moved, and had never gotten
around to changing their address on their voter registration record. For those
who had switched counties, this was a considerable problem. In both North Carolina and Indiana,
if voters move from one county to another without updating their addresses on
the voter registration rolls, they cannot vote. Unless they've moved within the
past thirty days, they can't go to their old polling place, and they can't go
to their new polling place. They might have been registered once, but not
anymore. Sorry.
This struck me as the most mundane, unnecessary reason to be
disenfranchised, which might have been why it bothered me so much. And it
doesn't just happen in these two states. As our Executive Director Michael
Waldman points out in his new
book, "in a country where one in six Americans moves in a year, government
does not routinely keep such people registered to vote, even if they stay in
their own state."
Why do we do it like this? Some might be quick to offer the
line that voting is a privilege, the government shouldn't have to hold our hands,
voting is the voter's responsibility, etc. etc. Heaven forbid we "spoil" our
citizens by making it convenient to vote. True patriots don't need convenience!
Or something like that... Maybe some would feel that the voters I spoke to on the
phone have rightly learned their lesson and will be better citizens next time.
But I certainly didn't feel like delivering the civic scolding.
And yes, in this country it is the voter's responsibility to register, re-register, make it to
the polls, and jump through any other hoops on the way to the ballot box. But
this does not mean that it would be illegal, wrong, or a waste of time for the
government to facilitate registration and re-registration more than it does now.
The solution is fairly simple. People should be able to
register on Election Day. Eight states already allow this, and they have found
that it boosts
turnout by 5-7 percentage points, reduces confusion (and the need for
provisional ballots) when people try to vote but can't, and does not lead to
any increase in reports of voter fraud or bureaucratic malfunction. Just last
week, Senators Feingold and Klobuchar and Rep. Ellison introduced
a Federal Election Day Registration Bill, which would allow people to, you
guessed it, register on Election Day.
Or, when people change their address through the post
office, why can't they also change their voter registration? Will such
convenience turn us into a nation of softies and whiners? I doubt it. But it
will make our voter rolls a lot more accurate, which is in everyone's interests—those who lie awake at night fearing voter fraud and those who want as many
people to vote as possible.
It would not be difficult for the government to help people
get, and stay, registered. And look on the bright side. At least that will make
fewer lawyers necessary to run an Election Protection Hotline.
Tags: Democracy, Voting Rights & Elections, Election Day Issues
By Justin Levitt – 05/02/08
Cross-posted from ACS Blog
On April 28, the Supreme Court handed down a decision in the Crawford cases,
rejecting a challenge to Indiana's law requiring voters at the polls to
provide certain types of government-issued photo identification. I had predicted
that the opinion would likely have impact far beyond Indiana, refining
the standard for justifying a burden on voters, and potentially
changing the ground rules for 2008 and beyond. But by and large, it
looks like I was wrong: though the rhetoric around the case grows ever
louder, in terms of the legal holding, this was far more a whimper than
a bang.
The decision was split, 3-3-2-1. Justices Stevens and Kennedy, and
Chief Justice Roberts, issued the "lead" plurality opinion, rejecting
the challenge to the law as overbroad in light of the limited evidence
in the record on the extent of the law's burdens.
Justices
Scalia, Thomas, and Alito would have gone much further, granting
blanket approval to any election law without intentional discrimination
or severe widespread impact. The latter, they hinted, would require a
showing of serious problems for the average elector. Absent that,
states could presumably feel free to forbid rich and poor alike from sleeping under bridges.
Justices
Souter and Ginsburg dissented, finding that the state had not
adequately justified the burdens of the law, even on the case's limited
record. Justice Breyer also dissented, writing separately to emphasize
that Indiana offered no defense of its law—the most restrictive in
the country—to justify restrictions above and beyond those in place
in other states.
So what to make of the mix? Justice Stevens'
plurality opinion is controlling, but it does not offer much specific
control. It affirms the "flexible" constitutional standard of Anderson v. Celebrezze:
courts must "weigh the asserted injury to the right to vote against the
‘precise interests put forward by the State as justifications for the
burden imposed by its rule.'" The more severe the burden, the hardier
the necessary justification. This balance, the plurality makes clear,
requires a "hard judgment." And that's most of the guidance the opinion
provided.
To be fair, the plurality did resolve a few pending
issues. For example, there was a question about whether cases
concerning a voter's right to cast a ballot (Dunn v. Blumstein, Bush v. Gore, Purcell v. Gonzalez) involved a different degree of scrutiny than ballot access cases asserting more indirect injury: with nary a mention of Dunn et al. in the Crawford plurality, it is now clear that the flexible Anderson standard applies across the board.
The opinion also makes clear that the Anderson
test does not function like a light switch, applying strict scrutiny to
laws causing severe burdens and giving a pass to all others. Instead,
the test is more like a dimmer: however slight the burden, "it must be
justified by relevant and legitimate state interests ‘sufficiently
weighty to justify the limitation.'" The "relevant" qualifier is
clearly significant: even slight burdens will be unjustified by
rationales that are "unrelated to voter qualifications." Thus, the poll tax, however small, remains unconstitutional.
Furthermore, gerrymandering aside,
the opinion puts the kibosh on the argument that a partisan lineup is
cause to question election laws that are otherwise justified. Overly
restrictive partisan effects from election laws, presumably, should be
sussed out by examining the burden on certain classes of voters, and
not through a roll call.
Beyond that, the case came down to the
facts in the record ... and the plurality thought this record too bare to
strike the law down across the board. Part of the problem is that the
case was a pre-enforcement challenge, brought before Indiana's law was
put into effect and therefore without direct evidence of past harm. But
the case record was also thin on reliable anticipatory statistics, and
somewhat thin on affidavits articulating the burdens that individual
voters could reasonably anticipate. These gaps provided a good part of
the reason (or the excuse) for the Court to reject the petitioners'
challenge. Without solid proof of burden in the record, Indiana's
justifications for its laws were good enough.
It's not entirely
clear what evidence of burden on voters is now required. The overall
feel is that the Court has made it more difficult for plaintiffs to
mount a facial challenge. But given the Court's headlong sprint from
facial challenges in other recent cases,
the language here is relatively modest. With enough proof that enough
voters will be sufficiently burdened—burdened, not blocked outright—a pre-election facial challenge still seems viable, albeit mildly
disfavored. And with enough proof that certain voters will be
sufficiently burdened, as-applied challenges are available to carve
exceptions from election laws of general application. "Enough" and
"sufficiently" are terms left to define another day.
To me, those
are substantial silver linings in a decision with much to criticize,
even without lamenting the result for ID-less Hoosiers heading into
next week's primaries. I've written elsewhere, for example, about the Crawford plurality's factual lapses. Moreover,
the Court's evidentiary standards imply that challenges will be easier
to win only after voters have lost their rights, yielding victories
profoundly Pyrrhic. And like Brad Smith (who has graciously allowed me
to excerpt his email to a private listserv), I am bewildered by the
unwarranted stature the Court seemed to grant the Carter-Baker
Commission's questionable research:
What
is the Carter-Baker Commission? It's not a government agency, elected
or even appointed by those who have been elected. It's not an academic
report subject to academic scrutiny or peer review. In the end, it's
just a bunch of guys (and gals) saying, "here's what we think." . . .
Whence the deference given to a private group like this? . . . They
just heard some "witnesses" and maybe looked at some other evidence and
then signed on to a report as their opinion. Well, heck, lots of people
have an opinion.
Still, as Dan Tokaji notes, it could have been worse. Though voter ID laws have largely been partisan affairs,
the Court did not break down along typical 5-4 ideological lines. Six
Justices recognized that restrictive ID laws might unduly burden some
eligible voters, particularly poor and elderly citizens. The federal
courthouse remains available to these voters, though it will take a
hefty push to open the doors.
Tags: Democracy, Voting Rights & Elections, Voter ID
By Michael Waldman – 04/30/08
The Supreme Court issued a ruling in the most important voting case since Bush v. Gore. In Crawford v. Marion County, the Justices upheld Indiana's law requiring a government-issued photo ID as a condition of voting. (The Brennan Center coordinated the amicus briefs in opposition to the law.)
We're analyzing the decision and the road ahead, but here are a few things we know. The Court accepted our argument that there is no evidence of widespread voter fraud. Unfortunately, the Justices ruled that even though the Indiana law could disenfranchise real voters ... and even though there was no proof of voter fraud in the state ... the plaintiffs had not proven that Indiana violated the Constitution by imposing these rules. It left open the door for further challenges to laws where plaintiffs could prove injury.
What will this all mean?
First, we do expect that there will be a major push in state legislatures and Congress to pass very restrictive voter ID laws, this year or next. Whatever the merits or demerits of voter ID in theory, these proposals invariably are crafted to impact the poor, minorities, the elderly and others who simply lack the required photo ID. We are working with advocates to make sure they have our research on the impact of ID proposals.
Second, we are moving to strike down other barriers to voting and fair elections. Coincidentally, the day after the Crawford opinion came down, we filed a we filed a federal lawsuit to strike down Florida's restrictions on voter registration groups. (The suit was filed on behalf of the Florida League of Women Voters.) The restrictions are so severe the League—hardly a radical fringe group!—has been forced to shut down its registration activities. Our board chair, James Johnson, is co-counseling the case with us.
Ultimately, it would be a huge missed opportunity to simply focus on stopping bad laws. We see a thrilling surge of citizen engagement and participation in this election. This should be the time to craft new voter registration laws to make sure that every citizen who wants to vote, can vote. In the coming weeks we will be putting forward a draft proposal for universal voter registration, including Election Day Registration, for Congress and others to consider.
We're eager to hear your thoughts, so please let us know if we can answer any questions on these or other issues.
Best regards,
Michael Waldman
Executive Director
Tags: Democracy, Voting Rights & Elections, Voter ID
By Justin Levitt – 04/30/08
In the past, we've analyzed press reports on alleged
instances of voter fraud, and found reason to
question some of the conclusions. In a post moments ago, we questioned the Supreme
Court's devotion to accurate factual reporting, in a decision that otherwise
accurately characterized flawed press reports. And now, we come full circle,
finding factual inaccuracies in the press around the Supreme Court's decision
itself. Whew.
Most of the damage is confined to editorials and columnists—and, fortunately, some pieces are far more careful than others. Still, there
are some opinions floating around that are dangerously unhinged from fact.
Let's start with the most common myths and misstatements.
An editorial
repeats the misconception that Indiana
is the norm: "in 20 states, some form of photo identification is necessary
before voting." Another report
claims that "about 25 states" have laws like Indiana's. Wrong. The real number is 3: Indiana,
Georgia, and Florida—and in Florida,
your ballot will still count even if you don't have photo ID. The photo ID
states are the real outliers here.
A columnist
parrots the misconception that photo ID is required for all sorts of daily
activities: "Here are just a few activities that require identification:
alcohol and tobacco purchases, boarding an airline, entrance to a casino,
senior discounts at retail stores, check cashing, passport purchase, border
crossings, prescription purchases, and, in some instances, the use of a credit
card to make a retail purchase." Not if
he's talking about photo ID, they don't. Giving credit for the accurate
responses (border crossings, some credit card purchases), and a very generous
half-credit for the responses that are only accurate some of the time (alcohol
and tobacco, casino, senior discounts, check cashing, prescription purchases),
he ends up with a 50%. In my school, that got an F.
A report
furthers the misconception that "lawyers challenging the law didn't produce a
single voter injured by it." Not true.
In part because the law was challenged before
it went into effect, there was no testimony in the official record from voters who
had already been prevented from
voting. But there was evidence of several voters without valid ID who would
have difficulty obtaining that ID. And
since the law went into effect, papers
submitted to the Supreme Court shows that in one county alone, dozens of voters
in the 2007 off-year municipal election cast ballots that could not be counted
solely because of the photo ID law.
And then there's Hans von Spakovsky. You can't blame the reporting
here: they just quote him. But his assertion that
the Crawford decision "confirms the
validity of photo ID laws" is as wrong as his claim that the decision
vindicates the DOJ for approving Georgia's 2005 ID law. The Court
case didn't say photo ID laws were OK: it said that there wasn't enough
evidence in this particular case—which was brought before the law ever went
into effect—to strike the law down. While it may now be harder to get the
proof necessary, future ID laws that disenfranchise vulnerable populations are
as constitutionally suspect as they ever were.
And the Court certainly
didn't say that the DOJ was right to approve Georgia's law in 2005. Crawford addressed an Indiana
law under the Constitution; the DOJ addressed a Georgia law under the Voting Rights
Act. Different laws, different standards, different analysis. The only
similarity is that both results were wrong.
Tags: Democracy, Voting Rights & Elections, Voter ID
By Justin Levitt – 04/30/08
To date, many supporters of photo ID laws have played notoriously
free with the facts. Monday, they got some company from the Supreme Court.
Surprisingly, there is much in the Supreme Court's fractured opinion to—well, not to applaud, but to tolerate as an
improvement over what might have been. A commitment to factual rigor, however, is not in that category.
As
Jack Balkin so perceptively notes, the Court's Indiana voter ID opinion was grounded not in truth, but in
truthiness. If it sounds right in your gut, it must be correct—no matter what the facts actually are.
It didn't start with the Court. The
appellate decision by Judge Posner was chock-full of truthiness, which is mighty dangerous for a branch that derives its legitimacy in part from its ability to dispassionately validate fact. "
The benefits of voting to the individual voter are elusive"—never mind the Edmund Pettus bridge. "
So some people who have not bothered to obtain a photo ID will not bother to do so"—never mind the affidavits of real citizens discussing real difficulty and not mere "bother." And, of course: "
Some [in-person] voter impersonation has been found . . . in the states that have been studied"—never mind any need to actually read the studies in question.
On Monday, the
Supreme Court showed that they had at least read the fraud evidence that Judge Posner could not be "bothered" to read. Both Justice Stevens' plurality opinion and Justice Souter's dissent acknowledged that the evidence in the case
cited next to no reports—much less proof—of voter fraud that ID laws can cure (
amici similarly showed a lot of smoke, but strikingly
little fire). And as the opinion made clear, there was absolutely no evidence of any such problem in Indiana, not once, ever.
That acknowledgment was certainly welcome (even if, for the plurality, it didn't matter). But it was also the high point of the brief factual interlude.
We now return you to your regularly scheduled truthiness. And just in case you're watching with friends over 21, try drinking every time the plurality just makes something up.
Footnote 6: Justice Stevens presumes that ever-increasing percentages of Hoosiers are getting the necessary valid ID. Is this supported by fact? Who cares?
Page 10: The opinion quotes the Carter-Baker Commission for the proposition that "There is no evidence of extensive fraud in U.S. elections or of multiple voting, but both occur. . . ." How do we know? You've got to
feel it!
Page 10: Same page, different misstep. "Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check." The reason there's no citation here is because excepting a few buildings in a few big cities, it's simply
not true. But facts are so messy!
Footnote 12: "One voter was confirmed to have committed in-person voting fraud." Since this is the only case of in-person fraud within the last century mentioned specifically in the plurality opinion, you'd expect the description to be spot-on. Sadly, the article cited did not "confirm" fraud, but relied on a notation in the voter rolls, without any evident further investigation. It's possible, sure. But is it also possible this was merely a clerical error, like similar voter roll entries in
Florida,
Georgia,
Missouri, and
Wisconsin? Doesn't matter!
Page 13: The state has an interest in fostering "public confidence in the integrity of the electoral process." Do photo ID laws accomplish this? The evidence so far says
no. But why rely on evidence?
Page 14: Provisional ballots are adequate remedies for those who don't have photo ID. Of course, they usually won't be counted if you don't show up with ID within the next 10 days. But the right to vote isn't about actually
voting, it's just about feeling like you voted...
Page 16: Provisional ballots again, but this time under the assumption that you can sign an affidavit at a special government office in order to have the vote counted. Not true, of course, unless you're indigent or have a religious objection to being photographed. But reading the statute is just one of those things that "lawyers" go on and on about.
Whew. OK, stop. There's more in the other opinions, of course, but there's no sense overindulging.
And then, there's the grace note that makes the truthiness particularly galling. After speculating up a storm, the plurality takes Justice Souter's dissent to task (footnote 20). The reason: trying to assess the extent of the law's burden using "supposition based on extensive Internet research."
Apparently, it's better to base your supposition purely on your gut.
Tags: Democracy, Voting Rights & Elections, Voter ID
By Renée Paradis – 04/17/08
The week of April 15 is a nice occasion on which to reflect on deadlines and what people tend to do in the face of deadlines, which, of course, is wait until the last minute before frantically rushing to get that form in on time. This is as true with voter registration as it is with taxes: the single biggest day of the year for voter registration is the deadline before the general election. And, under federal law, states are required to hold that deadline no earlier than 30 days before the election, which leaves elections officials with a deadline of their own: they must somehow process the deluge of forms in order to finalize pollbooks for use on Election Day. The days before deadline are difficult ones for election officials who have to go through mountains of forms while also setting up polling locations, training poll workers, distributing and collecting absentee ballots, testing machines, running early voting, printing ballots. In short, what March and April are to CPAs, October is to elections officials.
Last week, however, an elections worker in Muncie, Indiana got a little too hot under the collar during form-processing season. The Delaware County Election Board called a meeting to figure out how to deal with the flood of new registrations they had received for the presidential primary—including 1,500 on the primary deadline itself, out of a citizen voting age population of only around 90,000. Apparently the 1,500 forms were collected by the Obama campaign, which has made voter registration drives a focus of its efforts with student populations in particular. The Delaware Elections Board was operating at reduced capacity already because, under state law, the Board, which must have the same number of Democratic and Republican employees, is short a Republican—so they're down two whole workers. (Partisan election administration is a blog post for another day.) Will Statom, a Republican board employee, was apparently so angry that this meeting was called without complying with an Indiana public meetings law, he started a fight with a reporter for the Muncie Star-Press, which Statom claimed had "promoted" the "illegal" meeting. Statom shoved Nick Werner into a wall, tried to choke Werner, and then ended up punching Barry Welsh, a candidate for Congress, in the eye when Welsh tried to break up the fight. Statom was charged with misdemeanor battery, but returned to work the next day-the office needed his help to process all those registrations. (He has since been given a three-day suspension).
In 2004, elections officials in swing states also received many more forms than they were expecting—in large part because of the success of voter registration drives that registered a bunch of new voters and pulled more people into the process—something that's already happening this presidential year. Sometimes, those forms simply couldn't be processed in time, and voters had to cast provisional ballots. Other places, voting machines were distributed before all those voters registered, meaning long lines for some on Election Day. Ultimately, though, there was record registration and record turnout levels—something we can all agree is good, right?
Maybe not. Afterwards, some officials responded like Statom—they got angry, or ended up punching the wrong person. States across the country passed restrictions on these drives. Instead of giving counties all the money and capacity they needed to hire as many people as they could to process forms and ensure all voters new and old were able to vote, these dates decided to restrict the inputs—to limit drives' ability to reach new voters. States claim these laws are necessary because groups "hoard" forms—save them till the last minute and then turn them in all at once. But as tax day tells us (and as a study we did in Florida demonstrates), that's what voters do anyway—all groups do is increase the overall number of people who register to vote. Here at the Brennan Center, we've challenged these laws—successfully—as unconstitutional in Ohio and Florida. But they're still on the books in a number of states as we head towards the fall registration season. Rather than giving a black eye to new voters, states should figure out ways to process the form of every American who wants to register and vote.
Tags: Democracy, Voting Rights & Elections, Voter Registration Drives
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