Impact of Supreme Court's election decision
Posted by Jonathan Bechtle - April 28, 2008After an initial read-through of the Indiana photo ID decision, I think this decision will make it much more difficult for certain liberal groups to continue their legal attacks on legitimate election security laws. The court did leave open a door for more specific post-election challenges, however, so I certainly don't foresee election litigation coming to a standstill. Justice Stevens wrote the controlling decision, joined by Kennedy and C.J. Roberts. Justice Scalia wrote a concurring opinion joined by Thomas and Alito. Justice Souter filed a dissent joined by Ginsberg, and Breyer filed his own dissent.
Washington state received quite a bit of attention in the court opinions, both because of our 2004 governor's race and our recent top-two primary decision. And while EFF's brief wasn't specifically mentioned in the opinions (amicus briefs rarely are), the majority clearly accepted our argument that Indiana's interest in preventing voter fraud and improving voter confidence was substantial and persuasive.
Stevens: Indiana's interests strong enough to reject facial challenge
Justice Stevens found those two state interests, along with the interest of improving election procedures, to be valid and justifiable. On the other hand, the very thin evidence of disenfranchisement presented by the challengers wasn't enough to "conclude that the statute imposes 'excessively burdensome requirements' on any class of voters."
This case was a "facial challenge" just like the case against Washington's top-two primary. It was brought prior to the law being put into effect, and therefore was not based on actual problems encountered by voters, but on the supposition that the law "on its face" was unconstitutional. To win, the challengers had to show that the law as written would severely burden voters. The justices relied on their decision in Washington State Grange v. Washington State Republican Party as we predicted they would, and came to a similar conclusion. The law's impact on voters is unclear, there wasn't evidence of a severe burden on voters as a whole, and so the facial challenge was denied.
But as in the Grange case, that ruling leaves open the possibility of future lawsuits once the law is in effect and the its full impact can be determined.
Scalia: Law is a generally applicable and neutral voting regulation
Justice Scalia agreed with Stevens but went a step further. He looked at the merits of the case irrespective of the facial challenge aspect, and flatly rejected the Democrats view that if a law severely burdens even one voter it must be struck down. Instead, he looked at the law's burden on voters as a whole, and found it to be ordinary, requiring merely "nominal effort" of everyone. And he found the state's interests in preventing fraud and improving confidence were sufficient to justify that minimal burden on voters.
In supporting this "overall burden" standard Scalia said he was trying to help states avoid election litigation:
Weighing the burden of a nondiscriminatory voting law upon each voter and concomitantly requiring exceptions for vulnerable voters would effectively turn back decades of equal protection jurisprudence...Very few new election regulations improve everyone's lot, so the potential allegations of severe burdens are endless...It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class.
Impact on Washington?
While Washington doesn't have a photo ID requirement, and doesn't really need one in a poll-less environment, this decision still has great impact on our state. As with all states, we have been working to improve election integrity, but some of the most needed reforms (like requiring proof of citizenship) have been hindered because of a well-founded fear of litigation. You may remember the case Washington lost in 2006 over a voter registration security law challenged by the liberal Brennan Center--that case may have gone the other way if it had been litigated after today's decision. And right now there's a case pending in Arizona about that state's proof of citizenship requirement. With today's decision Arizona's chances of success improve remarkably, and that's the case Secretary of State Reed has cited as his reason for waiting to push a similar law in Washington.
Thoughts? Add Comment -
SouthernRoots said on Apr 28 2008 at 9:34pm
"He looked at the merits of the case irrespective of the facial challenge aspect, and flatly rejected the Democrats view that if a law severely burdens even one voter it must be struck down. Instead, he looked at the law's burden on voters as a whole, and found it to be ordinary, requiring merely "nominal effort" of everyone."
Gee, can we use the Democrat logic for tax laws? "...if a law severely burdens even one [taxpayer] it must be struck down"
Where do I sign up?
Seriously, this ruling is a good one. Legal, living citizens should be allowed to vote - once. This ruling helps acheive that goal.