My first reaction to today's decision in Crawford v. Marion County Election Board is that it is not as bad as it could be. But then, my expectations for this Supreme Court are pretty low.
Today's Supreme Court opinion striking down the first set of challenges to Indian's voter-ID law will probably create an electoral nightmare, and will probably disenfranchise many voters — although how many is disputed. It's highly likely that those voters — maybe even tens or even conceivably hundreds of thousands of them — would mostly vote Democratic, at least if they voted their pocketbooks, since they are overwhelmingly likely to be poor. Voters without ID will only be allowed to cast provisional ballots, and will have to appear within 10 days with an ID or with an affidavit explaining why they don't have one. In practice, few if any of these provisional ballots will ever be counted.
But while the opinion may be an electoral nightmare, three things keep it from being the doctrinal nightmare that it could have been: the procedural posture, some of the facts, and the fractured nature of the opinions. Unfortunately, this case is going be spun as holding that “Voter ID laws are constitutional” when in fact it holds only that they are not per se unconstitutional.
Procedurally, this was a facial challenge to the statute. A facial challenge is one where the plaintiffs argue the statute is invalid by its nature and should not be applied to anyone. Rejection of a facial challenge means that it is still open to individual plaintiffs or groups of plaintiffs to explain how the law discriminates unfairly against them given their particular circumstances and should not be applied to them. That's why the three most conservative Justices wrote separately: they wanted to prevent future fact-based challenges. And on this, they failed.
Factually, the state of Indiana had a few good things going for it. The District Court made a number of factual findings that strengthened its case (although, for the reasons set out in Justice Souter's opinion, still not to the point I would have swallowed it). For example, the District Court “found that petitioners had “not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of [the Indiana Law] or who will have his or her right to vote unduly burdened by its requirements.” Furthermore, the District Court found that 99% of voting-age public had a driver's license. So the number of potentially harmed people was low. (While opinions differ as to whether this fact should matter in a facial challenge — 1% of voters is still high — it won't be an issue in an as-applied challenge.)
And, one key fact of future significance is that the state offers all citizens a free photo ID. That allowed the three Justices in the lead opinion to distinguish this case from a poll tax. Many other states charge for non-driver photo ID — such as Florida for example. I read this decision to suggest pretty strongly that there are six votes for the proposition that any state which charges for photo ID cannot constitutionally require that voters show a photo ID in order to vote, as this would in effect be a poll tax. (I hope this result doesn't get lost in the lower court shuffle that is sure to follow.)
Third, this is a very fractured opinion: 3-3 to 2-1. There are some grave and important differences between the two sets of three Justices who joined to form the six-Justice majority. Give the three Justices in the lead opinion different facts, and they might well vote the other way.
Here's a hurried summary of some key parts of the opinions:
The lead opinion is by Justice Stevens (for himself, Kennedy and the Chief Justice). The key point is at the start, the decision that, “the District Court and the Court of Appeals correctly concluded that the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute”.
This despite the observation that even though preventing vote fraud is obviously a legitimate goal for a state legislature to pursue, “The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history.”
Even more troublingly, Stevens notes that, “It is, however, difficult to understand why the State should require voters with a faith-based objection to being photographed to cast provisional ballots subject to later verification in every election when the BMV is able to issue these citizens special licenses that enable them to drive without any photo identification.”
Yet, even this repeat discrimination against religious objectors doesn't make Stevens find that the statute imposes an undue burden on them. The reason is pretty legalistic, but not totally unreasonable:
Petitioners ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weighs their burdens against the State’s broad interests in protecting election integrity. Petitioners urge us to ask whether the State’s interests justify the burden imposed on voters who cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office after voting. But on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.
As to charges that the law is the partisan hack job everyone knows it to be, Stevens writes that even if the law is partisan, there are neutral reasons for it, and that suffices to survive a facial challenge:
…if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners’ facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.
That, like it or not, is pretty standard doctrine.
Scalia (writing for Thomas and Alito), isn't happy that the door is left open to as-applied challenges. He'd close it now, even before the facts are in:
The lead opinion assumes petitioners’ premise that the voter-identification law “may have imposed a special burden on” some voters, ante, at 16, but holds that petitioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny, ante, at 18–19. That is true enough, but for the sake of clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grounds that petitioners’ premise is irrelevant and that the burden at issue is minimal and justified.
The good news is that this view gets only three votes. Not even Roberts would buy it.
Souter (for Ginsberg) shows us what a contrary opinion — one more attuned to equal protection and voter rights — looks like, with the key move being very reasonable hypotheses about the nature and extent of the burden on indigent voters (e.g. the cost of travel to get one of those free IDs for people who don't drive). It's a good opinion, and there's a decent chance that some form of it may reappear in a narrower and more fact-rich challenge to voter ID laws.
Breyer (writing alone), suggests there were less restrictive alternatives to achieve the state's legitimate ends.
