[EL] Crawford transcript, etc.

[Martin Lederman]

Like many of you, I have assumed the outcome of the case will turn, not on any of these fine and interesting questions of articulating the standard of review (something the Court doesn’t really care about), or of how to quantify the number of voters who are burdened, and to what degree, but instead on whether five Justices could be persuaded that there is simply no legitimate state interest to be addressed here – i.e., that the Indiana legislature could not have (reasonably) been trying to detect or deter voter impersonation, but was instead simply trying to game elections for Republicans.  If there were a serious problem of voter impersonation – or if five Justices think there is, as in Purcell and in the Posner opinion -- then the Court will almost certainly uphold the Voter ID scheme.  But if they could be persuaded that there’s no there there, then it doesn’t really matter what the standard of review is, or the precise number of disenfranchised voters, because there is simply no legitimate state interest on the other side, and they will strike down the law without delving into the hard questions about what to do where the state’s solution to a serious problem happens to disenfranchise a lot of voters.

 

Unfortunately, nothing I saw at argument today gave me any comfort that the majority of Justices understand just how frivolous the state interest is here.  They understand that Indiana has not identified any such cases.  And they further understand the points made by Walter Dellinger and others in amicus briefs, and by Paul Smith today, that (i) there’s no real incentive for individuals to try to impersonate voters; and (ii) it’s unlikely anyone would try to influence an election by impersonating voters who still lives in the district.  But at least some Justices plainly remain of the view that party bosses might send out phalanxes of voters to vote in the names (and sign the names) of voters who are dead or who have left the district.

 

Paul Smith began to address this possibility by arguing that “if you try to actually affect an election you need to sway a lot of votes. And in order to do that . . . you'd have to have 100 or 200 or 500 co-conspirators, each of them assigned an identity, learning the signature of that person, and . . . “

 

At which point he was interrupted by Justice Breyer.  I don’t know if Breyer believes what he proceeded to say, or whether he was simply warning Paul Smith that this was the scenario he needed to deal with in order to get five votes, but Breyer surmised that there might indeed be such cases, and that if there were, it’s understandable there has not been any documentation of such fraud, because evidence of it would be hard to come by:

 

JUSTICE BREYER: You don't really -- I mean, that's what I wonder if there is no such evidence. How could you get evidence? It used to be common maybe urban legends, but of political bosses voting whole graveyards of dead people. All right. Now, that would be almost impossible to catch, I think. Someone walks in, saying: I'm Joe Smith. He doesn't say: I'm Joe Smith dead. He says, I'm Joe Smith, and he signs something. And the poll worker looks at it and the signature looks very weird. Well, what's the poll worker supposed to do? He's not going to go disrupt the election. And is there going to be a policeman there to follow this person home? Of course not. So that's their claim. Their claim is that we have a lot of anecdotes and there is a certain kind of fraud that you really just can't catch at the polls.  Now, what's your response to that?  Because that's their argument on the other side.

 

Paul Smith:  No one has been punished for this kind of fraud in living memory in this country. 

JUSTICE BREYER: Well, they say that's because you can't catch it. 

 

This was, to my mind, the most exasperating part of the argument.  Can Justice Breyer, or any other Justice, truly believe that a party boss could, without detection, pull off a conspiracy of hundreds of people to “vote whole graveyards of dead people”?  And that such schemes have regularly been accomplished without anyone breathing a word of them down through the years?  “Almost impossible to catch”?!  Compared to what?  This is, indeed, urban legend, and it’s disheartening that there do not appear to be five Justices who see just how ridiculous this scenario truly is.  

 

________________________________

From: election-law-bounces at mailman.lls.edu [mailto:election-law-bounces at mailman.lls.edu] On Behalf Of Rick Hasen
Sent: Wednesday, January 09, 2008 3:21 PM
To: Election Law
Subject: [EL] Crawford transcript, etc.

 


Oral Argument Transcript in Crawford Now Available


See here <http://supremecourtus.gov/oral_arguments/argument_transcripts/07-21.pdf> .

Posted by Rick Hasen at 12:20 PM <http://electionlawblog.org/archives/010030.html>  


Still More on Crawford Oral Argument


Chris Elmendorf sent the following thoughts to the Election Law listserv, and he's given me permission to reprint his very important comments here:

I too attended oral argument this morning. Two aspects of the dialogue were striking. First, Paul Smith told the Justices that the Burdick standard requires them to make careful judgments about the reasonableness of the law, and no Justice seriously challenged him on this. Justice Alito did express some discomfort with the line drawing task, and Justice Souter at one point gestured toward the idea of a quantitative standard (based on the total number of voters adversely affected), but there was no discussion of (1) whether heightened scrutiny applies only if the burden is “severe” (a question that has divided the lower courts); and/or (2) how to conceptualize burden severity in cases about administrative barriers to voting. If the constitutional test is whether the law is all-things-considered reasonable (without a strong presumption one way or the other, as under the traditional rational basis and strict scrutiny tests), I don't think anyone should be surprised if the partisan divide in the legislative arena is replicated on the Court. 

I was also struck by the response to Paul Clement's argument for rejecting the facial-challenge model in favor of as-applied claims by particular voters or classes of voters for whom compliance with the ID requirement poses a significant hardship. The conservatives welcomed this approach. Souter and Ginsburg worried that it would prevent pre-election litigation, but Clement answered that pre-implementation as-applied challenges would be fine. Paul Smith said it would be messy, with different classes of voters each seeking narrow remedies or exemptions from the ID requirement. No Justice seemed bothered by that. Completely unaddressed, however, were the implications of the as-applied model for other voter-participation claims. Perhaps I am mistaken about this, but the apparent premise of the as-applied model--that a voting requirement is presumptively unconstitutional vis-a--vis any voter for whom the requirement, in conjunction with the voter’s life circumstances, results in a "cost of voting" for that voter well in excess of the cost of voting faced by average voters--would seem a recipe for radically expanded judicial intervention in the nuts and bolts of election administration. The voter ID issue is an easy one for the as-applied model, because of the existence of a simple remedy (an injunction ordering that provisional ballots be counted). But what about challenges to in-person voting requirements by people who work long hours or have extraordinary child care responsibilities; or to ballots printed in English by members of a tiny language minority group (not protected under the VRA); or to precinct-voting requirements by voters who face unusually long lines? (For more on this question, see my recently posted and very preliminary draft, "Undue Burdens on Voter Participation (Is the Right to Vote Like the Right to an Abortion?)," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1080256.)

Justin Levitt also had some pre-argument commentary here <http://www.mcall.com/news/opinion/all-bottom_col.6218109jan09,0,5377530.story>  and here <http://www.acsblog.org/guest-bloggers-supreme-court-preview-the-most-important-elections-case-since-bush-v-gore.html> .

Posted by Rick Hasen at 12:18 PM <http://electionlawblog.org/archives/010029.html>  

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
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