Argument preview: Crawford v. Marion County Election Board

Argument Preview

The consolidated cases of Crawford v. Marion County Board of Elections and Indiana Democratic Party v. Rokita appear to be the first since 1974 in which the Supreme Court plans to rule on a claim that a state has unconstitutionally put up barriers to voters’ personal access to the polls. The law tests the validity of a 2005 Indiana law that requires most voters who go to the polls to show a government-issued photo ID before they may cast their vote and have it counted. But there are lingering procedural questions that could get in the way of a decision on the merits.

Background

Not since Bush v. Gore in 2000, the presidential election controversy originating in Florida’s vote-counting morass, has the Supreme Court encountered a constitutional dispute as thoroughly saturated with partisan political interests as it now faces in these Indiana election law cases. It is abundantly clear that Republicans and their followers and sympathizers are on one side, and Democrats and their constituencies are on the other. Indeed, perhaps the most difficult challenge facing the Justices will be to fashion a final ruling that does not read like a victory for one party’s interests over the other’s – a feat that many critics believe, rightly or wrongly, that the Court was unable to bring off in Bush v. Gore. The difficulty of doing so may be deepened by the fact that the Court will be deliberating on the case in the midst of a nationwide election campaign, and could be deciding it just months before a general election in which the Court’s decision conceivably could play a role.

The dispute, as one brief in the case puts it, “turns on perceptions,” adding that “these perceptions have legal consequences.” With the two sides totally at odds over what the real-world evidence shows about the impact of a law like Indiana’s voter-identification statute, there is a perception that voter fraud is a major and growing national problem, offset by a counter-perception that the fear of fraud at the polls is greatly exaggerated if not entirely unfounded. There is a perception that a voter ID law like Indiana’s is sure to suppress voting – especially by would-be Democratic voters, offset by a counter-perception that no individual has ever been shown to have been denied the right to vote by such a law. There is, on one side, a perception that such a law is simply the latest ploy in the ongoing history of bigoted disenfranchisement of voters without political power or voices, and, on the other side, a perception that the electoral misdeeds of the Tammany Hall and Richard Daley regimes – ballot box-stuffing, the dead casting votes, and so on – are not relics confined to the Nation’s past. One side sees such a law as nothing more than a cynical creation designed to deter by making voting seem harder to do, the other side praises such a measure as a long-overdue reform that is no more burdensome than advance registration to vote.

The deep disagreement, reflected in the papers in the case, over whether the law has had any negative impact on actual voters figures in the background of lingering questions over whether anyone had the right to bring a court challenge to the state law – that is, had “standing” to sue. Some of the briefs supporting the state law contend explicitly that, since there is no direct proof that any potential voter has been deterred, no one can claim legal injury sufficient to justify suing. The U.S. Justice Department, which has entered the case to defend the law’s constitutionality, also has sought to keep the standing issue alive in the case. The challengers, it argues, “have failed to identify a single individual in Indiana who would vote if, but only if, the voter identification law were invalidated” and failed to show “a discriminatory impact on any segment of society.” The Department has thus impliedly questioned whether the case should go forward to the merits. The Seventh Circuit Court, in upholding the law, found that the state Democratic Party had standing to sue, but criticized the lack of any individual plaintiff specifically affected by the law, concluding that “the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.”

Whether the Court itself will put any particular focus on the standing issue is unclear at this point, although that is a jurisdictional issue that is always potentially in play.

The law at stake, taking effect July 1, 2005, was passed by the Indiana legislature on a party-line vote shortly after Republicans took control of both houses of the state legislature and the governor’s office. It requires every voter who shows up at the polls to show a government-issued photo ID. Even voters who have cast ballots for years, and might well be known to poll workers, must comply. If the voter does not have one, he or she may cast a provisional ballot (after answering a series of questions about themselves). The ballot will not actually be counted until the voter shows up within ten days after the election, at the office of a court clerk or an election board, and files an affidavit swearing that they are the one who voted. They must then show a photo ID or, if they still don’t have one, swear that they either are too poor to afford proof of their identification, or have a religious objection to being photographed. The law does not apply to those who cast votes by absentee ballot, and it does not apply to those who live in a state-licensed facility – such as a nursing home – and vote there.

The Indiana statute is described by challengers as the strictest in the nation. While a federal law – the Help America Vote Act of 2002 – has some provisions for a photo ID requirement, and while five states besides Indiana have some form of photo ID law, none of those is said to be as demanding as Indiana’s.

The litigation over the law is centered in Indianapolis and Marion County, Indiana’s largest population center. Two Democratic politicians, state legislator William Crawford and Washington Township trustee William Simpson, joined by four advocacy groups such as the Indiana NAACP, sued the County Election Board and the state of Indiana to challenge the law. In a separate lawsuit, the Indiana Democratic Party and its Marion County central committee sued the secretary of State, directors of the Indiana Election Division, and the Marion County Election Board. The cases were consolidated, leading to decisions in a U.S. District Court and in the Seventh Circuit Court to uphold the law.

Petitions for Certiorari

The petitions for Supreme Court review, with closely parallel arguments, directly raise a single question – whether the photo Id law violates the First and Fourteenth Amendments to the Constitution. Neither spends much time on the standing question, focusing most of the argument on the claims that there is evidence showing that the law deters eligible voters from voting, that the burden on voters – especially the poor, minorities, the elderly and the disabled – is severe in nature because it creates a “bureaucratic maze” for those who want their votes counted when they did not have a photo ID, that the law should be subject to the most rigorous constitutional test (“strict scrutiny”), and that, lacking any showing that the law responds to any real problem of voter-impersonation fraud, it cannot survive judicial review – even if the standard were less exacting than “strict scrutiny.” There was considerable discussion in the petitions of the Supreme Court’s 1992 precedent, Burdick v. Takushi, and the balancing test that decision imposed for judging election laws that may impose some burden on the exercise of the right to vote.

The state, in its response defending the law, focused on two main points: the law was passed against a background of “inflated voter-registration lists,” providing a foundation for fraudulent voting, and “nationwide reports of in-person voter fraud.” The law, the state insisted, is benign in nature, and is a sincere attempt to respond to the “prevalence” of voter fraud around the country. The Court agreed to hear the two cases on Sept. 25, just before the opening of the Term, and consolidated them for one-hour of oral argument, scheduled for 10 a.m. on Wednesday, Jan. 9.

Merits Briefs

The brief in the Crawford case seeks to bolster the claim that the Indiana law has a discernible impact, affecting “thousands of people” who do not have the necessary photo ID and sets up a “costly and protracted” process for those who seek to vote and to have those votes counted. For some, it argues, voting is simply impossible under the law. It further assails the state’s claim that it was attacking voter fraud, noting that the federal Election Assistance Commission found that impersonation of voters was “probably the least frequent type of fraud.” Considerable argument is mounted against the Seventh Circuit’s opinion, especially for its conclusion that the law has only a minimal impact, at most, on voters. It also argues that existing safeguards were adequate to deal with any problem of voter fraud that might arise: signature requirements at the polling place, in-person observation of voters by the parties’ election monitors, and laws that make it a crime to engage in election fraud – all described as less restrictive alternatives to the photo ID requirement.

The state Democratic Party’s brief makes a more blatant argument about the supposed partisan origins of the state law. The law, it says, affects eligible voters who “do not drive and have no regular need for state-issued photo IDs – the elderly, disabled, poor, and minority voters. “Because these voters tend to support Democratic candidates, there was good reason to think that the suppression of voter turnout caused by the new law would primarily harm Democrats.” It notes the timing of the law’s enactment and the partisan makeup of the legislature at the time, and suggests that the claim of voter fraud was merely a pretext for discrimination against Democratic-inclined voters. It calls for “heightened scrutiny” of the law, saying that the burden is decidedly severe.

In the state’s merits brief, it makes much of the supposed reform nature of the law, arguing that, in the aftermath of the Supreme Court’s Bush v. Gore decision in 2002, there were widespread calls for election reform in all aspects of the voting process. That reform movement, it contends, coincided with a spreading network of reports of voter-impersonation fraud – multiple voting, decedent voting, voting numbers that outstripped registration totals, and absentee voter fraud. Indiana’s law, it argues, was but “a mainstream outgrowth of the election-modernization movement.” Indiana, it says, sought to provide only “reasonable, long-overdue election-security reform in a state highly vulnerable to in-person election fraud.” Past Supreme Court precedent, the state reasons, drew a clear distinction between outright voter disqualification and “benign procedural safeguards” and “reasonable election protocols.” Picking up a statistic that is widely repeated by those supporting the Indiana law, the state says that only 1 percent of Indiana’s voging0age population lacks government-issued photos IDs. The state also seeks to raise anew the standing issue, repeating that no one had been personally injured by the statute’s existence.

One of the more interesting briefs is the merits filing of the Marion County Election Board. While sued in the case, it mounts no defense of the law, and, in fact, offers an array of arguments that point to an unexpressed desire that the law be struck down. While saying that state law prohibits it from taking a position that the law is unconstitutional, since it is merely an administrative entity, the County Board argues that “time-tested systems” in place before the law was enacted had worked in policing voter fraud. It offers the only precise statistics of how the photo ID law had worked in the 2007 municipal elections: at least 34 persons, it says, went to the polls without photo IDs, cast provisional ballots, and then only two of the 34 actually went through the process to get the documents necessary to have their votes counted. Of the 32 whose votes did not count, the Board notes, 14 had voted in at least 10 past elections; only six of the 34 had no prior history of voting in the county. Thus, it argues, the law “not only has precluded some individuals from voting,” but also “undermines the accessibility of the lection process by promoting the idea that voting is difficult. That idea in itself is likely to depress voter turnout.” It recommends that the Court apply “strict scrutiny” to the law.

The Justice Department’s amicus brief on Indiana’s side dwells most importantly on the facial nature of the challenge, implying that there are serious problems with the strength of the case as a vehicle for judging the Indiana law. I also repeats the statistic that 99 percent of Indiana voters already have photo IDs. And it laments the problem of voter fraud as it views it, saying that it constitutes “an impairment of the right to vote. In a close race, even a handful of fraudulent votes could invalid the entire election, as has happened in Indiana.”

There is an imbalance, numerically, in the amici filings, with 24 supporting the challengers and 14 supporting Indiana and its laws. One of the more compelling amicus papers is by election law expert Richard L. Hasen, a professor at Loyola Law School in Los Angeles. He suggests that, since the 2000 Florida election controversy, the election reform effort has “become mired in partisan controversy.” That, he argues, suggests strongly the need for the Court to lay down clear and fair rules for judging election administration disputes. His proposed solution: require the states not merely to articulate an important state interest for regulating the machinery of voting, but requiring them also to “provide some credible support for the proposition that its law will further that important interest.” Only if there is “a reasonable fit” between the law and its interests is it appropriate to weigh those interests against potential disenfranchisement of voters, he concludes. The “tailoring” requirement, he says, should not be “narrow,” but “reasonable” only. His ultimate conclusion is that the Indiana law would not survive his approach.

Groups representing minorities, the homeless, the elderly, students and the 18-25 age group, members of Congress, civil rights groups, labor unions and progressive law professors line up against the law, arguing that it is simply more of the same traditional mode of disenfranchising segments of the voting population. Privacy and civil liberties advocates propose that the Court apply a standard in which voters should be required to produce a photo ID only if they are, as individuals, actually suspected of attempted fraud.

Among amici supporting the state and its law, one standout is the Republican National Committee, seeking to dispel the contention that such laws are driven by partisan desire. “Requiring photo identification at the polling place is not a Republican scheme to drive down voter turnout,” it argues. It is, rather, an approach that has bipartisan support, has worked smoothly in practice, and may actually increase minority voter turnout. The fraud that exists in voting across the nation, the Party contends, is dangerous, because it erodes voter confidence and casts serious doubt on the outcome in close election results. Many of the other amici in the case put special stress on the rights of “legitimate voters,” saying they are the true victims of voter fraud because their properly cast ballots are cancelled out by fraudulent ones. All that is involved in the photo ID requirement, the American Civil Rights Union says, is to require a “slight additional paperwork burden.” The Washington Legal Foundation suggests that the law only affects those who are ineligible to vote anyway. “They voluntarily surrender their right to vote by their indifference,” it asserts. The secretary of state for Georgia, Karen C. Handel, who has defended a somewhat similar law in her state, suggests in her brief that “it is nearly impossible to detect in-person voter fraud without a photo ID requirement.” Republican members of Congress weigh in with a fervent plea for the Court to respect the traditional power of states to regulate the machinery of voting.

Analysis

If the Court moves beyond the right-to-sue issue, it may find a weighty challenge in figuring out what impact the Indiana law has or may have in actual practical operation. There are no scholarly studies of particular force that stand out, and much of what is argued is anecdotal in nature. The Court, in a summary ruling in 2006 allowing Arizona to enforce a proof-of-citizenship requirement for first-time voters (Purcell v. Gonzales), indicated that it was persuaded then that voter fraud exists and that it undermines public confidence in elections. But that did not involve as penetrating an inquiry into the nature and scope of voter fraud as does the Indiana litigation. The Court, if it is inclined to move boldly, may seek to articulate a new standard that at least would add some clarity to the balancing test it used in Burdick v. Takushi in 1992. But, should it be persuaded that Indiana’s law, in fact, does not impose an onerous burden on any segment of voters, it may find that the Burdick standard is a sufficient test to apply. What it says about the value of individual voters’ rights – particularly if it disagrees with the Seventh Circuit’s somewhat dismissive view of the social value of one person’s vote – could be one of the more significant aspects of its rulings on these cases. The final decision is expected before early summer.