Crawford -- More Rhetorical Bark than Legal Bite?

May 2, 2008

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.