Tuesday, April 29, 2008

First Thoughts on Crawford v Marion

I've only read the controlling opinion (Stevens, Roberts and Kennedy) so far, so I'll probably have more to say later, but there seem to me to be three flaws with it on a first read:

1) Pages 17 and 18 list a small number of Indiana citizens who claim that the law imposes a burden on them that will prevent them from voting. While Stevens argues that the burden on most of these voters isn't excessive, it does in fact seem to be for the homeless. He notes that

The record does contain the affidavit of one homeless woman who has a copy of her birth certificate but was denied a photo identification card because she ddi not have an address. But that single affidavit gives no indication of how common the problem is.

In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes "exessively burdensome requirements" on any class of voters.

Let's see: homeless people have no home. If they have no home, they have no address. Apparently, if they have no address, they can be denied photo ID by the DMV. If they have no photo ID, they now cannot vote. This seems a to be a class of voters who now have an excessive burden placed on them.

2) Stevens references a lower court's decision, which found a study claiming that 989,000 Indiana voters did not have the required photo identification to be "utterly incredible and unreliable," yet we are never told why this is, or presented with any evidence to the contrary. Rather, we are given the district judge's estimate that only 43,000 people don't have the required ID. What the judges estimate is based on is unclear, as is why it should be accepted by the Court while the original study should not be.

3) Precedent requires the State to put forward interests to justify the burden being imposed by its restrictions on voting. The interest put forward by the State is the need to curb vote fraud, yet the State was unable to present any evidence of vote fraud taking place which this law would actually prevent. The Court admits as much, noting that "The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history."This seems a rather large problem with the State's argument. Rather, the State is left to argue that voter fraud has happened elsewhere, yet the evidence is still incredibly weak. As disclosed in footnotes 11 and 12, it boils down to the actions of Tammany Hall's Boss Tweed in the 1860s, and that, in Seattle, after an investigation into fraud in a gubernatorial race in 2005, "One voter was confirmed to have committed in-person voting fraud."

While footnote 12 argues that there have been other examples of vote fraud elsewhere, it admits that "the brief indicates that the record of evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud," both of which would not be curbed at all by this new law.

This seems an example of a solution in search of a problem. The State's compelling interest is to prevent Tammany-style fraud, despite no proof of such fraud ever occuring in Indiana. And for that, it is disenfranchises thousands of voters.


Courtesy of the Associated Press, reporting on today's Indiana Democratic Primary.
About 12 Indiana nuns were turned away from a polling place by a fellow bride of Christ because they didn't have state or federal identification bearing a photograph.
Sister Julie McGuire said she was forced to turn away her follow sisters at Saint Mary's Convent in South Bend, across the street from the University of Notre Dame, because they had been told earlier that they would need such an ID to vote.
The nuns, all in their 80s or 90s, didn't get one but came to the precinct anyway.
"One came down this morning, and she was 98, and she said 'I don't want to go do that,'" Sister McGuire said. Some showed up with outdated passports. None of them drives.
They weren't given provisional ballots because it would be impossible to get them to a motor vehicle branch and back in the 10-day time frame allotted by the law, Sister McGuire said. "You have to remember that some of these ladies don't walk well. They're in wheelchairs or on walkers or electric carts."


ebl2009 said...

I find all those points interesting, esp. the 1st (the second is an interpretative question of fact, not of law and so is somewhat less than the others).

Specifically, they raise two points. First, what has the court ruled re: homeless people? Do we have any sense that they are different under the Constitution? see not intuitive reason, other than property (or lack thereof) that they shouldn't be.

Second, I agree that the balance, as it stands factually, is somewhat awkward, mostly in that voter fraud of the type the court wants to protect against hasn't happened in Indiana. Yet, at the same time, there isn't a lot of good evidence that people have been prevented from voting either. Given this somewhat ambiguous situation, the Court goes with a state interest as determining. The thing is, I don't see the cases upon which it draws that standard out and gives weight to the states versus the individuals. if it were a clear standard, I could understand the justification, but it seems like the court kind of extracted it at will from air

Lang said...

I've now read the rest of the opinions.

A couple of points:

1) They point out another burden which I didn't pick up on - it costs money both to get an ID (either a license or passport) while the Court in the past has held that any financial cost is a significant burden (specifically a $1.50 poll tax, which adjusted for inflation would be less than $10 today) and therefore declared another law unconstitutional. The controlling opinion never mentions this precedent or deals with this burden in any meaningful way.

2) There is a burden, both in time and money, in going out of one's way to get a photo ID, which for some may be excessive. As one of the dissenting opinions notes, there are many more polling places in Indiana than locations at which one can acquire ID. If it is harder to get an ID than it is to vote, getting an ID is by definition a burden being placed on voters above and beyond what was previously required of them to vote.

3) The homeless situation regarding whether or not they can get photo ID isn't mentioned elsewhere in the opinions, so I'm not sure whether it is law, policy or just a fluke that someone was turned down for lack of an address. In general, for homeless people who do not have ID, they are allowed to fill out a provisional ballot, and can then go to see county clerks (I think that was the position, though the title might be off...), of whom there is 1 per county, and sign an affidavit within 10 days of the election to have their vote counted. This is a pretty clear burden, as it's safe to say most homeless people probably don't have the means to get to the county clerks office and do this. Moreover, this isn't something they can just do once (ie if I've got an address, I can go get an ID and I'm burdened by having to do it once, but I can then use it in every subsequent election) but rather, they would have to do this after every election, thus increasing the level of burden that this places on them.

4) As for where the balance lies, it seems to be that between a hypothetical cost to the state (vote fraud for which there is no existence) and an easily predictable burden on voters (forcing them to get ID, as I've previously argued), the burden on voters should be given more weight. It is something that we can reasonably predict will happen, and that we know has happened, if even only to that single homeless person cited in the controlling opinion, whereas there's no evidence whatsoever of voter fraud. It doesn't seem that hard a balancing test given the facts in this case.