Crawford, Continued

It is relatively rare that I find myself agreeing with anything coming out of the Washington Legal Foundation, but it does happen.

And WLF Chief Counsel Richard Samp's analysis in More on Crawford: The Court Steps Back From Electoral Refereeing, which is published at SCOTUSblog, has a lot I agree with, especially this part, some of which is a more elegant version of what I said yesterday,

I disagree with those who suggest that the Crawford shuts the courthouse door entirely, even to discrete groups of voters who can demonstrate that a nondiscriminatory election regulation imposes a disproportion impact on their groups. While Justice Scalia’s opinion provides little comfort to such groups, Justice Stevens seems quite receptive – suggesting that there are as many as six justices who would allow such suits. Indeed, Justice Stevens virtually invites a follow-on lawsuit by one group of voters: those who have a religious objection to being photographed. He makes clear that while it may be an acceptable burden to require provisional voters to make a single trip to the county courthouse to validate their ballots, the burden becomes unreasonable if a voter is required to make the trip election after election, as Indiana law apparently would require of those with a religious objection to being photographed. Perhaps Justice Stevens calculated that such suits would be relatively uncommon and thus minimally intrusive. Political parties might well be less interested in financing a challenge to a voter ID law if the end result would be to ease ID requirements for a very small group of voters.

Justice Stevens also indicated that a voter ID law is likely unconstitutional if a State charges a fee to provide the mandated ID. Indiana avoided that problem by eliminating its fee for non-driver IDs at the same time that it adopted the voter ID law. Justice Stevens apparently took a stand against ID fees in order to remain consistent with Harper v. Virginia Board of Elections, the 1966 decision that struck down a $1.50 nondiscriminatory poll tax. But the distinction he makes between prohibited ID fees and the other financial burdens imposed by voting regulations is never made clear. It is not at all self-evident why a fee to obtain an ID is any more burdensome than is the cost of transporting oneself to the county courthouse to validate a provisional ballot.

This entry was posted in ID Cards and Identification. Bookmark the permalink.

3 Responses to Crawford, Continued

  1. “Indiana avoided that problem by eliminating its fee for non-driver IDs at the same time that it adopted the voter ID law.” Is that your statement, or are you paraphrasing Stevens? There’s a statement like that in the syllabus as well. Indiana charges a fee for the birth certificate needed to obtain the non-driver ID.
    I happen to agree with the district court that the costs of travel to get the ID don’t count as a poll tax.
    But to me the birth cert. fee is a poll tax. I am an Indiana voter whose provisional vote isn’t being counted because I don’t choose to show ID (unless they get a warrant or otherwise comply with the 4th A.)
    The Republican judge has denied my TRO and failed to schedule a hearing. I doubt my case will get anywhere unless I can find a good lawyer to handle it. But it’s the kind of as-applied challenge the Crawford decision leaves room for. Complaint at
    The Amish, who object to photos on photo ID, also object to lawsuits, and usually to voting, so that’s a problem unlikely to solve itself.

  2. p.lukasiak says:

    I’m personally convinced that the original vote was 5-4, and that Stevens switched in order to be able to write the majority opinion himself. As Michael notes in his original analysis, there are aspects of the majority opinion that don’t make a lot of sense — basically, Stevens tells us why the vote should have gone the other way, then provides us with a “legalistic” justification for the decision that avoids the kind of changes that a majority opinion written by SC Wingnut Brigade would have given us.

  3. michael says:

    I’m dubious about the Lukasiak vote-change hypothesis for two reasons. First, I’m pretty sure opinions are assigned at the time of the original vote, so a voter-changer would be joining an opinion someone else wrote, not writing himself (the hypothesis works better if you imagine the switch happening at the vote — since the more senior justices vote last, I think). Second, there are ways in which this Stevens opinion is consistent with earlier opinions on evidence needed for facial challenges. In this version, he’s the one Justice who isn’t results-oriented on process issues. Cf. Orin Kerr on similarities between Crawford and McConnell v. FEC.

Comments are closed.