Supreme Court Backs Tougher Voter ID Laws

Today's much anticipated U.S. Supreme Court decision in Crawford v. Marion County Election Board upholding Indiana's tough voter ID law is a significant win for those who support stricter voter ID laws, even if they support such laws for partisan purposes.

It will encourage further litigation, because it relegates challenges to laws imposing onerous burdens on a small group of voters to "as applied" challenges, but those challenges will be difficult to win. The lack of a majority opinion, moreover, injects some uncertainty into the appropriate standard for reviewing other challenges to onerous election laws.

The Court's specific split in this case will blunt charges that this is a politicized 5-4 decision -- and it is significant that the Court, once again, has failed to cite its opinion in Bush v. Gore. [Disclosure: I filed this pro bono amicus brief on my own behalf supporting the challengers to the law in this case.]

Here is a summary of the decision.

1. The Controlling Standard from Justice Stevens' Opinion. The Court split into three camps on the constitutionality of Indiana's voter identification law (four camps if you count the nuanced differences between Justice Souter's and Justice Breyer's dissenting opinions). The controlling opinion is that of Justice Stevens, joined by Chief Justice Roberts and Justice Kennedy. In a nutshell, the approach boils down to this: under the balancing approach of earlier cases (which the opinion says comes from cases such as Anderson and Burdick), a state needs to come forward with merely plausible non-discriminatory interests to justify an election law.

The evidence need not be strong. Indeed, though Justice Stevens says that there is evidence of fraud to justify a voter identification requirement, the actual evidence he cites in the footnotes is incredibly thin -- either reaching back to 1868 or a single case of impersonation voter fraud found in a recent gubernatorial election in Washington state.

Moreover, Justice Stevens says an interest in preserving voter confidence can justify such laws as well, ignoring undisputed evidence that such laws are not at all likely to instill voter confidence (and could in fact do the opposite). Nor does it matter if the motivation in passing the law is completely partisan.

The law is to be upheld unless "such considerations had provided the only justification for a photo identification requirement." So those with partisan motive need only find a nonpartisan pretext for such laws. Once the state has posited its neutral reasons for such a law, the law is to be upheld if it doesn't impose serious burdens on most voters. For those voters who do face serious burdens, they must bring an "as applied" challenge where they present specific evidence applied to them as to why the law is onerous.

This channeling of election law cases into as-applied challenges -- part of a recent trend of the Court -- is going to make it tough for a lot of plaintiffs who are burdened, and is in sharp contrast with the Court's approach in earlier cases, such as the Harper case striking down the poll tax for everyone, not just poor voters. The evidence in as-applied challenges must be specific and tested in litigation; as Justice Stevens says responding to Justice Souter's dissent: "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication."

2. The Wide Gap in the Other Opinions. Justice Scalia's opinion (joined by Justices Alito and Thomas) concurring in the judgment is uncharacteristically brief. It reads the applicable constitutional standard differently, one that simply gives carte blanche to most states to pass laws with any kind of neutral justification offered. It is unclear to me whether Justice Scalia would today uphold a poll tax like that struck down by the Court in Harper. Certainly Justice Scalia seems to think that if a law doesn't burden most people, it should be upheld unless it imposes a "severe and overall" burden on the right to vote.