Monday, April 28, 2008

Crawford v. Marion County Opinion Announced: Justices Divded on Burden Level

The Supreme Court, today, released its highly anticipated opinion to Crawford v. Marion County. The opinion was split 6-3 (Stevens, Roberts, Kennedy affirming; Scalia, Thomas, and Alito concurring; and Souter, Ginsburg, and Breyer dissenting) with the big dispute being what level of burden voters suffered as a result of the Indiana voter ID law. This was important because the higher the level of burden found, the higher standard the Court would apply. The lead opinion, authored by Justice Stevens, found the level of burden to voters to be indeterminate. As a result, Justice Stevens affirmed the voter ID law, applying a rational basis test upon the voter ID law. Here is a break down of the opinions.

Lead Opinion: Stevens, Chief Justice Roberts, Kennedy

Starting off with a brief overview of the facts of the case, Justice Stevens quickly found his way to the balancing test found in Anderson v. Celebrezze. The Anderson test stated that a court, when evaluating a constitutional challenge to an election regulation must weigh the asserted injury to the right to vote against the "precise interests put forward by the State as justifications for the burden imposed by its rule."

The Court then looked at the interests Indiana put forward justifying their voter ID law:
  1. deter and detect voter fraud,
  2. valid State interest in participating in a nationwide effort to improve and modernize election procedures that have been criticized as antiquated and inefficient,
  3. preventing voter fraud in response to a problem that is in part the product of its own maladministration-- namely, that Indiana's voter registration rolls include a large number of names of persons who are either deceased or no longer live in Indiana, and
  4. interest in safeguarding voter confidence.
In addressing the state interests, Justice Stevens first tackled voter fraud. He began by conceding the record contained no evidence of any voter fraud in Indiana's history. But in balance, Justice Stevens articulated instances in which historians and journalists had documented voter fraud in American history. In footnotes, Justice Stevens cited Boss Tweed, from New York (1868), an example from 2004 in Washington state upon which one example of in-person voter fraud took place, and an example from 2003 in the Democratic primary for East Chicago Mayor- though the fraud was through absentee balloting, not in-person voter fraud. He summed up by stating the State has a legitimate and important "interest in counting only the votes of eligible voters."

In respect to inflation of voter rolls, Justice Stevens pointed to a 2005 newspaper article which indicated sloppy record keeping and a decree by the Federal Government alleging violations in United States v. Indiana.

In regards to voter confidence, Justice Stevens stated that the State has has an interest in public confidence in the integrity of the electoral process as such integrity encourages citizen participation in the democratic process.

Justice Stevens then went into discussion of the burdens Indiana voters faced by the voter ID law. More specifically, Justice Stevens pointed out, the Court needed to focus on those burdens "imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirement of the voter ID law."

Justice Stevens then concludes that, "for most voters...the inconvenience of making a trip to...[gather] the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting." In sum, he seems to state that the burden facing the interested voters isn't too troublesome.

This, however, is contradicted by Justice Steven's address of the petitioner's presentation of evidence. Based, on 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." Justice Stevens then reviews where the evidence is deficient to make a determination on the burden.

Before concluding, Justice Stevens made mention of the partisan political issue concerned this case, noting that the Republicans in the General Assembly voted in favor of the voter ID law though Democrats were unanimous in opposing it. He addressed this concern by stating that if political partisanship were the sole, or significant, reason for the decision to enact the law, then indeed, a high stand of scrutiny would apply. But, if a nondiscriminatory law is supported by valid neutral justifications, than those neutral justifications should not be disregarded simple because partisan interests may have been one source of motivation for the legislature.

Justice Stevens then concluded that "when we consider only the statute's broad application to all Indiana voters we conclude that it 'imposes only a limited burden on voters' rights.' The 'precise interests' advanced by the State are therefore sufficient to defeat petitioners' facial challenge."

Concurring: Scalia, Thomas, Alito

In concurring, Justice Scalia applied a different test. Instead of the Anderson test applied by the lead opinion, Justice Scalia applied the test articulated in Burdick v. Takushi. Burdick, and reaffirming cases, have implemented a two-step approach: "Strict scrutiny is appropriate only if the burden is severe. Thus, the first step is to decide whether a challenged law severely burdens the right to vote. Ordinary and widespread burdens, such as those requiring 'nominal effort' of everyone, are not severe. Burdens are severe if they go beyond the merely inconvenient."

Justice Stevens then went on to articulate the burdens facing the affected Indiana voters. In balancing the burdens of the affected Indiana voter, against their right to vote, Justice Scalia found the burden to be "minimal and justified" because it does not "even represent a significant increase over the usual burdens of voting."

Dissent: Souter, Ginsburg

In his dissent, Justice Souter also applied the Burdick test Justice Scalia applied. He however, found the burden on voters to be much heavier than what Justice Scalia found. Pointing to a poor public transportation system, lack of locations for voters to get their IDs verified, cost of getting birth certificates, and the number of times voters have to do this (every election), Justice Souter found this to be a heavy burden indeed.

He then points out that the number of people in which this might be affected was significant. He points out that the District Court found that roughly 43,000 voting-age residents lack the kind of identification card required by Indiana's law. These people are likely to be indigent or elderly, so they likely would not have a car, thus making the task of obtaining an ID incredibly difficult, per the reasons explained above. As a result, Justice Souter found the State would fail the Burdick test, and voted to vacate the judgment of the Seventh Circuit and remand for further proceedings.

Dissent: Breyer

Justice Breyer, in a separate dissent, stated he would "balance the voting-related interests that the statute affects, asking 'whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon the others." Justice Breyer highlighted the burden levels found by Justice's Scalia and Stevens and chose to disagree with them. He believed the burden was high. He then pointed to two other states, Georgia and Florida, who had lower burdens and then explained the record didn't provide a "convincing reason why Indiana's phot ID requirement must impose greater burdens than those of other States." In conclusion, while he acknowledged that the Constitution doesn't forbid Indiana from enacting a photo ID requirement, the statue imposed a disproportionate burden upon those without valid photo IDs.


I simply cannot agree with this opinion. This opinion, for all the Justices', turned on the level of burden the affected Indiana voters carried when voting under the voter ID law. This level of burden then determined what standard of scrutiny would apply. Justice Scalia believed the burden was minimal. Therefore, a lower standard of scrutiny should apply. Those in the dissent believed there was considerable burden imposed on the affected Indiana voters. Therefore, a higher level of scrutiny should apply.

Justice Stevens, however, couldn't determine what level of burden the voters carried. But, in this confusion, he went ahead and applied a legitimate state interest scrutiny. I simply cannot accept this. When the voting rights, a fundamental right, are being burdened, the choice, in ambiguity, shouldn't be rational basis, but strict scrutiny. The Court should err of the side of protecting voter's rights against the tyranny of the State.

Justice Stevens, though holding the burden wasn't significant, did only a superficial analysis to explain his holding. Instead, he spent the majority of his "burden analysis" on why there wasn't enough information in the record to determine the "magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified." If Justice Stevens was so sure that the burden wasn't significant, why then, did he spend so much time articulating the lack of evidence? The fact of the matter is, both parties had very little strong evidence in their favor. Justice Stevens recognized this, yet still found against the voters. I am simply confounded as to why the Court is so deferential to the government when a fundamental right was at stake. The deference should be to the voter.

Even Justice Steven's use of the evidence is questionable. While the State's interests, in theory, seem significant on its face, there is simply no evidence presented to suggest these interests are event in jeopardy. For example, in supporting the State's position in regards to voter fraud, Justice Stevens points to three instances of voter fraud. However, the instances are hardly convincing to support the idea voter fraud exists today, in Indiana. First, the points to instances of when Boss Tweed ran New York in 1868. I'm all for stare decisis, but it's simply pointless to point to an instance of voter fraud 150 years ago as evidence that voter fraud could happen today. The political and electoral simply has simply evolved too much to even make the comparison.

His second example, the Washington fraud case uncovered only a single instance of voter fraud. A single instance means that most people are not committing voter fraud. Simply because one person committed voting fraud in Washington doesn't mean there is in-person voting fraud being committed today in Indiana.

Thirdly, his last example wasn't even on-point. The voter ID law applied to in-person voting, yet his East Chicago mayor example was an example of voter fraud in the context of absentee voting. Indeed, absentee voting is an issue that is of deep concern, but this is simply not within the scope of the question. Using this as an example only highlights the weakness of Justice Steven's argument.

Additionally, I also felt the Court dropped the ball when it came to the "political issue." By allowing partisan statutes to be passed so long as there is an accompanying "neutral justification" will only promote greater introductions of partisan statutes all cloaked by "neutral justifications." If it looks like a sheep but growls like a wolf, it's probably a wolf. The partisan divides in this country are not to be underestimated. Understanding the Court's desire to stay out of political issues, the Court needed to, at the least, make a statement that it will not be the arbiter of political issues. They failed to do this. And this I fear might set the precedent for the biggest legacies of this case.

In sum, I feel Justice Stevens set a tremendously low bar for States to overcome electoral fraud challenges. The Court applied the Anderson test to balance weak evidence supporting a State interest against an indeterminate burden imposed Indiana voters. In balancing these out, the two arguments appear to cancel each other out with their weaknesses. In this case, the tie should go to the People. Instead, the Court has given the victory to the Government and partisanship. A very troubling victory, indeed.

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