Monday, October 01, 2007

crossposted from
Saturday, September 29, 2007
voter id thoughts

The case before the US Supreme Court about the Indiana voter license rules raises a narrow issue and a broader one. The narrow issue is whether the First Amendment allows duly registered voters to vote without having to display a government-issued voting license. The broader issue is what standard courts should use in deciding such issues.

I have a dog in this fight, several even. I am one of the voters in Indiana whose vote hasn't been counted, because I don't choose to submit to a search of my voting license without a warrant supported by some degree of probable cause. Suspicionless warrantless searches are disfavored under the state and federal constitution, and it burdens, perhaps severely, my voting rights to make me pass through a roadblock to get to the ballot box. In addition to being an affected registered voter, I've been a lawyer for a guy whose vote wasn't counted.
That suit was recently dismissed as being overly argumentative, but it can be refiled because the same defendants plan to do the same thing to my plaintiff in November.

More generally, I've had a long term interest in the standard the courts use in deciding voting rights cases. In 1993, a court in Missouri said the standard is strict scrutiny, in a case I brought when then-Secretary of State Roy Blunt illegally kept my friend Laura from running for sheriff. Missouri ex rel. Coker-Garcia v Blunt.
The next year, I wrote an article, unpublished, about the standardlessness of the standards set out by the Supreme Court in the landmark trio of Anderson v Celebrezze, Norman v Reed, and Burdick v Takushi. . More recently, Chris E_ [citation needed] has written a useful article on the Takushi/Norman framework. In my article, I went on to suggest that, given the indeterminacy under the federal standards, we should look to state constitutions as a source of voting rights, particularly the "free and equal elections" clause found in most state constitutions. Davis Schultz has recently written an article [citation needed] which also discusses the Takushi/Norman indeterminacy problem, in relation to the Indiana case. He also concludes that plaintiffs can make their cases stronger by citing to state constitutions. Not only can it provide a second bite of the apple but the two approaches are mutually supportive. A state interest is not compelling if it is an interest that is banned by the state constitution. A burden is not minimal if it infringes rights that are express or fundamental under the state constitution. Conversely, many courts will interpret their state constitutions closely lonmg the lines of what the US Supreme Court holds, even when the text and history is different.

The ACLU for the plaintiffs is relying on a slender reed, preserving only the First Amendment claim, and on a rather bare-bones set of facts, since this was a pre-enforcement challenge. See Purcell.
That might not bode well for the Indiana voters, but it sets this case up as a possible landmark. The court may finally have to tell us how to tell when a burden is severe, triggering strict scrutiny and its kiss of death. Currently, the standard is one of the personal preferences of the particular judges, and it turns out that Republican judges see the world a bit differently than the rest of us do.
Alternatively, the court could just decide that Posner got it wrong, without changing the framework. Possibly, the court could make this another Twin Cities/Jenness/Munro cases, endorsing an anything-goes lax review standard. I do not expect that this will be a unanimous case. If the court can find consensus on any issue, my guess is that would be to remand with instructions to use Anderson rather than Takushi. But that's an unlikely outcome. A 5-4 or 6-3 split is more likley. I am too close to the issue to objectively assess the odds - I think they favor my side, but we won't know for awhile.

But what if the Court upholds Posner? Does that end the issue? No. We have a recent example of how these disputes can play out. In McConnell v FEC, Jim Bopp lost a round. Bopp is tenatious.. ten... determined, effective, funded, and not in a hurry. Having lost his pre-enforcement facial challenge, he went on to bring one as-applied challenge after another, until three years later the Court effectively reversed its earlier decision. If ACLU v Rokita loses, there are a series of as-applied challenges that can be brought and won. The grandmother who has to buy a birth certificate for $10 to get a voting license can bring a 24th Amendment poll tax claim. Her neighbor, who is told that without a voting license she can't get a birth certificate, and vice versa, and who is denied a hearing by the BMV, can bring a procedural due process claim. Each voter who is searched for ID can bring a bivens claim, or a section 1983 action, or file a notice of tort claims under the state constitution,and bring the action in small claims if she can't find a lawyer.
Meanwhile, in 2006, when these statutes were passed by the GOP dominated Indiana house, the voters got riled and threw the bastards out, putting in a new and Democratic set of bastards. The new legislature hasn't yet done anything to repeal the act,and the new Democratic county clerk is enforcing the same unconstitutional policies she ran against, but it continues to be a hot campaign topic.
Funding these suits makes sense, just from the campaigns' PR budgets, whether or not they win, and can keep the GOP on the defensive until it agrees to more reasonable anti-fraud efforts, such as rewards and prosecutorial staff for those who actually do engage in in person voting fraud.

I used to work at the mall, where there's always a concern about shoplifting. A general rule there is that for ever dollar of stuff swiped by a shoplifter, eight dollars of stuff falls off a truck or walks out the back door, due to theft by employees. It's the same when it comes to voting fraud. The threat is not from the guy who tries to vote in the name of his deceased grandfather. It's the guy who counts the votes, or the guy who makes the rules about whose votes get to be counted.

Well, this turned into a rant. I'll look at it tomorrow to see if there's stuff I can cut. But this has been in my head for a few days so I wanted to get it on paper.

# posted by gt @ 5:53 PM

That's significant because the high court typically overturns three rulings for every one it upholds. article
This factoid suggests that Posner is more likely to be overruled than sustained.

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