Crawford v. Marion County Election Board (07-21)

May 1, 2008 Supreme Court Update

Greetings, Court Fans!
The Court issued only one decision this week, but it was an important one. In Crawford v. Marion County Election Board (07-21), the Court voted 6-3 to uphold Indiana's voter ID law. The law, purportedly one of the most restrictive in the country, requires a voter to show a photo ID before voting, or else she must cast a "provisional" ballot that will count only if she executes an affidavit within ten days at her county clerk's office. The law resulted from a partisan struggle in the Indiana legislature; Republicans supported the bill as an anti-fraud measure, while Democrats opposed it as an effort to keep elderly and indigent (and likely Democratic) voters from the polls. Democrats and other voters challenged the law as facially unconstitutional, but lost in the lower courts on summary judgment. They lost again at the Court. No opinion garnered a majority, but two things are clear: the Court's recent statements disfavoring facial challenges to entire statutes are heartfelt, and litigants hoping to overturn election laws really must build an empirical case.
Justice Stevens announced the ruling, in an opinion that the Chief and Justice Kennedy joined. The gist of the Stevens opinion is that there simply was not enough evidence to support a facial attack on the law. Stevens found that the interests at stake – deterring voter fraud, modernizing election procedures, and safeguarding voter confidence – clearly were worthy, and he noted that Indiana had made it possible for all voters to get an ID for free. While the elderly or indigent might have a problem getting a birth certificate or other documentation needed to get the free ID, the petitioners had to prove that that the burden on this small number of voters outweighed the state's interest in election integrity. On the record, wrote Stevens, they had not done so: the evidence on the number of voters at issue was unreliable, the proof of the difficulties they faced was scant, and there was no indication that the proper remedy, if any, was to throw out the entire statute. Notwithstanding the partisan struggle over the law, it was nondiscriminatory and supported by neutral justifications – and it will be in effect for the next election.
Justice Scalia led a second group of three Justices (himself and Justices Thomas and Alito). Scalia thought that Stevens's findings were "true enough," but he criticized the Stevens group for apparently accepting the premise that a burden on some voters is enough to raise a constitutional issue. Past Court decisions had established a two-tier framework for election regulations: nonsevere, nondiscriminatory voting rules need only further an important regulatory interest, while strict scrutiny is reserved for laws that severely restrict the right to vote, construed broadly. The Indiana law imposes but one ordinary, widespread burden: present an ID before voting. While that burden might impact some voters differently, the particular circumstances faced by some voters have never been and should not be constitutionally relevant, as neutral laws are not invidious even where they have a disparate impact. He thought Stevens's approach might embolden litigants by suggesting that the Court had abandoned this principle.
Justice Souter wrote the principal dissent, which Justice Ginsburg joined. His dissent is lengthy, but the upshot is that there were probably "tens of thousands" of voters whose votes would not be counted under the Indiana law, and he thought the state had barely even tried to justify that burden. He clearly viewed the voter-fraud issue as a farce, as the law addressed only one ineffectual form of voter fraud – in-person impersonation – rather than more pressing problems such as absentee-ballot fraud, multiple voting, voter intimidation, ballot-stuffing, etc. He also viewed the burdens facing voters without ID as significant – it costs money to get a birth certificate or passport, and traveling to the county seat to sign an affidavit after every election was impractical for many. As an interesting aside (well, interesting to us), Souter cited all sorts of sources in his opinion, including Internet posts regarding Indiana's lack of public transportation in many rural counties. In response, Stevens pointed out that none of this was in the record: "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication."
Finally, Justice Breyer dissented. He disagreed with Stevens and Scalia on the burden that the law as enacted imposed. In particular, he pointedly noted that the cost of getting a birth certificate to get the state ID exceeded, in today's dollars, the value of the notorious poll tax the Court struck down in the 1960s.
That's all for now. Until next time, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400