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More on Crawford: The Court Steps Back From Electoral Refereeing

The following analysis was written by Richard Samp, Chief Counsel of the Washington Legal Foundation in Washington, DC. (Disclosure: the Washington Legal Foundation filed an amicus brief in this case in support of Respondents, urging the Court to uphold Indiana’s Voter ID Law.)

Disputes over election reform issues have had a highly partisan tone for the past several decades, dating back at least to adoption of the NVRA (the “motor-voter” law) in 1993. The partisan bickering only intensified following the 2000 Presidential election, from which the two major political parties drew diametrically opposed conclusions regarding what was wrong with American election laws.

The partisan rancor is unlikely to subside any time soon in Congress or in the state legislatures. But with its decision Monday, the Supreme Court signaled that the federal courts should step back and not attempt to referee election reform disputes in the absence of evidence that a challenged state voting law either serves no relevant and legitimate state interests or imposes particularly severe and recurring burdens on the voting rights of identifiable classes of voters. The opinions of both Justice Stevens and Justice Scalia cautioned against any detailed scrutiny of the evidence supporting a State’s determination that measures are necessary to protect the integrity and reliability of the electoral process. So long as the State’s asserted bases for its voting regulation – here, an interest in preventing voter fraud and maintaining public confidence in elections – are relevant to its interest in protecting the integrity and reliability of elections, the Court signaled that it is very unlikely to second-guess the need for such regulation. Democrats argued that voter impersonation is rare and that voter ID requirements, by making voting a more onerous task, actually tend to undermine public confidence in elections; Republicans submitted evidence that, they asserted, demonstrated the precise opposite. The Court made clear that such factual disputes should be decided by legislatures, not courts. The court exhibited the same hands-off attitude that it has exhibited toward redistricting disputes in recent years.

Facial Challenges. It seems highly unlikely that a facial challenge to any nondiscriminatory voting restriction can succeed in light of the Crawford decision, at least so long as the restriction does not take the form of a monetary exaction (such as a poll tax) and bears some relationship to voter qualification. The Stevens and Scalia opinions both suggested that facial invalidation of a nondiscriminatory voting restriction is virtually never appropriate regardless how severe its impact on individual voters. Justice Stevens, for example, deemed it of little consequence that the Indiana law provided that voters casting provisional ballots (because they lacked an ID) could validate their ballots only by traveling all the way to the county courthouse to sign an affidavit. The Court’s aversion to declaring statutes facially invalid has been increasingly evident in a number of recent decisions, notably Ayotte v. Planned Parenthood (a challenge to a New Hampshire parental notification law) and Washington State Grange (a challenge to Washington State’s regulation of primary election procedures).

But I disagree with those who suggest that the Crawford shuts the courthouse door entirely, even to discrete groups of voters who can demonstrate that a nondiscriminatory election regulation imposes a disproportion impact on their groups. While Justice Scalia’s opinion provides little comfort to such groups, Justice Stevens seems quite receptive – suggesting that there are as many as six justices who would allow such suits. Indeed, Justice Stevens virtually invites a follow-on lawsuit by one group of voters: those who have a religious objection to being photographed. He makes clear that while it may be an acceptable burden to require provisional voters to make a single trip to the county courthouse to validate their ballots, the burden becomes unreasonable if a voter is required to make the trip election after election, as Indiana law apparently would require of those with a religious objection to being photographed. Perhaps Justice Stevens calculated that such suits would be relatively uncommon and thus minimally intrusive. Political parties might well be less interested in financing a challenge to a voter ID law if the end result would be to ease ID requirements for a very small group of voters.

Justice Stevens also indicated that a voter ID law is likely unconstitutional if a State charges a fee to provide the mandated ID. Indiana avoided that problem by eliminating its fee for non-driver IDs at the same time that it adopted the voter ID law. Justice Stevens apparently took a stand against ID fees in order to remain consistent with Harper v. Virginia Board of Elections, the 1966 decision that struck down a $1.50 nondiscriminatory poll tax. But the distinction he makes between prohibited ID fees and the other financial burdens imposed by voting regulations is never made clear. It is not at all self-evident why a fee to obtain an ID is any more burdensome than is the cost of transporting oneself to the county courthouse to validate a provisional ballot.

Partisan Election Laws. Those challenging the Indiana Voter ID Law sought to base their challenge in part on a claim that the law was a thinly disguised attempt by Republicans to gain unfair advantage in future elections. The Court wisely avoided being drawn into that thicket. It deemed the presence of partisan interests among some legislators irrelevant so long as an election law is nondiscriminatory and is supported by valid neutral justifications. It simply is not possible to establish neutral principles by which to judge whether an otherwise permissible voting regulation should be struck down because it was motivated by partisan politics. After all, one person’s law designed to promote inclusiveness by eliminating barriers to voter registration is another person’s “auto-fraudo” law.