When Justice Stevens announced his retirement during the last term, liberal Supreme Court commentators lamented the loss of the leader of the left side of the Supreme Court divide. Though appointed by Republican President Gerald Ford in 1975, Stevens sided with the liberal wing of the court in several decisions. Over the past three decades, the Court has drifted rightward, leaving Stevens to look more and more like a liberal lion. In truth, Stevens is a sensible moderate, only looking liberal in relationship to the rest of the Court.
But I digress. The day he announced his retirement, Dahlia Lithwick at Slate wrote of Stevens’ extraordinary empathy, his ability to see the world through others’ eyes. I agree, for the most part. But one of Stevens’ decisions that still bothers me, and could have far-reaching impacts on close elections in the years to come, concerns and Indiana voter id law from 2006. In fact, the decision has added fuel to Kris Kobach’s “We Need to Stamp Out Voter Fraud” campaign theme for Kansas Attorney General. This is the most significant instance of Stevens’ empathy failing him and leading to a terrible decision. Here’s what I wrote back in 2007. If you’re not interested in a lengthy discussion of Equal Protection Clause, feel free to skip this post and we’ll have something else for you tomorrow.
Just a few days before the Indiana Democratic Primary on May 6th, the Supreme Court issued its in opinion in Crawford v. Marion County Election Board , which upheld the constitutionality of Indiana’s voter identification law. Ostensibly, the law (SEA 483) was designed to crack down on in-person voter identification fraud by requiring voters to show photo id at the polling place. However, SEA 483 is a solution in search of a problem: Not a single case of in-person voter fraud has ever been prosecuted in Indiana. In fact, is a partisan attempt to control the vote: SEA 483, the toughest of its kind in the country, was approved on a strict party-line vote, with every Republican voting for the law and every Democrat voting against. The decision could play a big role in future elections, as Republican state legislatures across the country adopt similar legislation that could keep thousands of poor, elderly, and often minority citizens (who just happen to voter overwhelmingly Democratic) from casting votes.
The particulars of Crawford are as follows: In 2005, the Indiana legislature approved SEA 483, which requires citizens voting in-person to present photo identification at the polling place. There are some notable exceptions (absentee ballots only require a signature, those living in state-licensed nursing homes are exempt), but for the most part, voters need a drivers license or state-licensed non-drivers ID. The IDs are free, but you need a birth certificate or social security card to get one, which can cost up to thirty dollars to obtain and often require multiple trips to government offices. If you can’t supply photo ID, you can cast a provisional ballot and then sign an affidavit at the County Clerk’s saying, essentially, that you’re too poor to get the documents together for an ID. The Indiana Democratic Party filed suit immediately after Republican governor Mitch Daniels signed the bill into law, arguing that SEA 483 violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution. The suit eventually worked its way up to the Supreme Court, after being found constitutional by a split panel of the Seventh Circuit Court of Appeals (The two Republican appointees voting in favor; the Democrat against).
To decide if a law violates the Equal Protection Clause, the Court has developed a series of hoops to jump the law through. Relevant to Crawford, those hoops are as follows. First, the Court has to decide how important the right infringed by the law is. Voting is in the category of most important rights–a “fundamental” right. A law restricting a fundamental right gets the highest level of scrutiny by the Court (“strict scrutiny”), meaning that the state has to have a really, really good reason for the law. The law survives strict scrutiny only if it is “narrowly tailored” to serve a “compelling state interest.” The vast majority of the time, if a law gets strict scrutiny, it will be declared unconstitutional. In the election law context, strict scrutiny requires a balancing test in which the Court weighs the law’s burdens on the voter versus the state’s relevant and legitimate justifications for the law.
The landmark decision in this line of cases is Harper v. Virginia Board of Elections (1966), which held that poll taxes violate Equal Protection because “voter qualifications have no relations to wealth.” But, as with many Warren-era decisions, this bedrock value has been whittled away by an increasingly conservative Court. In 1983, the Court held in Anderson v. Celebrezze that any law which has “even handed restrictions that protect the integrity and reliability of the election process itself” qualifies as “narrow tailoring,” essentially requiring a super duper severe burden (like, a poll tax, or fighting ninjas in front of the voting booth) on the voter to overcome the state’s interest. In 1992, the Court effectively threw up an additional hoop in Burdick v. Takushi, which forces the voter to overcome an additional balancing test (“reasonable restrictions” v. “character and magnitude of asserted injury”) just to get to the Equal Protection Strict Scrutiny analysis. In effect, over the past two decades, the Court has undermined the idea that voting is a “fundamental right” and has overburdened voters’ burden to prove they’re overburdened.
The 6-3 opinion (Roberts, Stevens, Kennedy, Scalia, Thomas, and Alito in the majority; Souter, Ginsburg, and Breyer in dissent) is rather extraordinary. Justice Stevens’ controlling plurality opinion found that SEA 483 does indeed infringe on a fundamental right, but the law overcomes strict scrutiny anyway–which is a little bit like giving an Oscar to M. Night Shyamalan because you didn’t count the stupid twist ending. In essence, when Stevens weighs the state’s interests versus the voters’ burdens, he finds that the state’s interest in preventing a crime nobody’s ever been convicted of overcomes the burden of poor old people having to travel all over the county, contacting state departments of revenue, paying a bunch of fees, and being humiliated by having to admit that they’re too poor to vote.
At least Stevens was willing to analyze the balancing test. Justice Scalia wrote in concurrence that the Indiana law doesn’t even meet the Burdick test, so the burden on the voter is, constitutionally speaking, so minor that it barely requires consideration. Scalia simply can’t understand why these poor old people are upset—I mean, they get to cast provisional ballots or could vote absentee if they wanted to. But, as Justice Souter notes in dissent, many absentee ballots are routinely tossed out or not counted because of technicalities or because they’re confusing. Plus, the provisional ballot is only counted if you can make your way down to the courthouse and sign an affidavit saying you’re too poor—even though the very fact that you’re poor is probably the reason you can’t get to the courthouse and pay the necessary fees anyway.
Essentially, Scalia wants to create a second class of votes—hey, you got to register your opinion about who you want to be president, but it’s probably not going to count. Scalia, true to his textualist nature, plays some word games with the terms “burdens” and “impacts.” Scalia argues that the “burden” on all voters is the same, even though it “impacts” voters differently. This is bullshit, and Scalia basically admits as much. We could require all voters to pass a literacy test because the “burden” is equal for all voters, but we can’t consider the “impact” of the law on those who can’t read. Well, why not just ignore the “impact” on those too poor to pay a poll tax just as long as all voters are “burdened” with paying $5.00 to vote? Scalia even acknowledges that “likely impact” is a factor in deciding whether a law is too burdensome (Storer v. Brown at 738), but just breezes on by this factor to re-assert his conclusory point that all burdens are equal as long as the law doesn’t say, “Poor black city dwellers and poor white country folk who live forty miles from the county seat have to pay a whole bunch of money they don’t have and make several dangerous trips just to have a small voice in the future of our country.”
Scalia, however, is right on one count, that Stevens’ invitation for individual voters to launch “as-applied” attacks on the law could create constant litigation to cut holes in the fabric of the Court’s decision. Fair enough, but it follows that voters who are too old and poor to get a state id probably don’t have the means to launch a complex constitutional case in federal court. Towards the end of his opinion, he tosses off a judicial-minimalism argument that is so formalistic that Scalia seems to willfully blind himself to its effects. Scalia says his real objection is that the Constitution vests the power to conduct elections in state legislatures in Article I. True enough, but this doesn’t mean that the state can restrict the right to vote inconsistently with the rest of the Constitution—as the Court did when it struck down the poll tax. But that doesn’t matter here. Scalia’s is a faux-democratic argument: He argues that the issue is best left to legislature, but would deny the most vulnerable citizens the right to vote for representatives in that legislature. How can hens vote the foxes out of the henhouse if the hens’ votes don’t count?
Equally bizarre is the analysis in Stevens’ controlling opinion, which is so divorced from the real lives of real-life actual real people that it reads less like work of an eighty-eight year old man and more like a grandson who is tired of taking grandma around for her errands. On the state’s side of the Anderson balancing test, Stevens identifies four state interests. First, to “modernize elections,” where Stevens invokes no less than Jimmy Carter and James Baker’s (former Secretary of State and captain of George W. Bush’s 2000 Florida recount team) Commission on Federal Election Reform to support his case. Oddly, Stevens quotes this passage from the Commission’s report: “There is no evidence of extensive fraud in U.S. elections or multiple voting, but both occur, and could affect the outcome of a close election.”
We already knew this, of course–otherwise, there would have been no need for Alberto Gonzalez’ Justice Department to fire those U.S. District Attorneys (all nominated by Bush and confirmed by a Republican Senate) for refusing to file frivolous voter fraud lawsuits in heavily Democratic precincts. If there have been no prosecution of in-person voter fraud in Indiana, and that Republican U.S. attorneys can’t find voter fraud even after extensive investigations, how much weight should this “state interest” have? At best, the Commission’s position is conclusory and faith-based: There’s no evidence of the Flying Spaghetti Monster, but you can’t say he doesn’t forge his signature on the Marion County, Indiana voter rolls. Still, Stevens puts his finger on the state’s side of the scale.
The second interest is bound up with the first: to deter and detect voter fraud. Stevens again emphasizes that not a single instance of voter fraud has ever been prosecuted in Indiana, as if he’s dissenting from his own opinion. If, say, ousted U.S. DA for Western Missouri (and Bush appointee and brother of Republican congressman Sam Graves) Todd Graves had caught Jackson County Democrats holding drunks at gunpoint outside the precinct like Steve Buscemi in Kansas City, then, yeah, good point. But it’s not, so Stevens has to travel in the wayback machine to pull up Boss Tweed as his chief exhibit. That’s right: Justice Stevens invokes Boss Tweed as evidence for in-person voter fraud in 2008. In fact, Stevens does find one instance of voter fraud in Indiana, involving absentee ballots cast during the 2003 Democratic Primary for East Chicago Mayor. Unbelievably, Stevens cites this as evidence of the need to prevent in-person voting fraud—the very remedy (absentee ballots) given to disenfranchised voters!
Stevens’ last point so lacks evidence he manages only a conclusory single paragraph. The third state interest is to safeguard voter confidence. He cites no evidence that Indiana voters have no confidence in their system, nothing. But he does name-drop the Carter-Baker report again, saying, well, if you don’t have safeguards, people are just going to think this whole election thing lacks integrity–you know, like legislature passing laws to intentionally disenfranchise the poorest and most vulnerable citizens from voting.
Finally, Stevens just kinda drops another argument, that Indiana needs to purge its bloated voter rolls of dead or moved citizens. Stevens likely dropped the argument because, well, there’s no possible way that requiring voter ID would help counties figure out who doesn’t need to be on the voter roll. If somebody shows up that isn’t on the list, sure, gotcha. But, unless dead people start showing up at the polls in mass, no names are coming off the list. So, unless this is the scene outside the Gary, Indiana voting precinct, and those zombie voters don’t have photo id, there has to be a more effective way to purge the rolls.
On the other side of the scale, Stevens is even less convincing. He wonders what the big deal is for somebody to cast a provisional ballot, and then within ten days go down to the courthouse and sign an affidavit that you’re too poor or without means to get an ID. Well, Justice, one reason that might cause a problem is the humiliation of having to admit, in a legal document, that you’re too destitute to cast a full ballot in an election. Second, part of the reason you can’t get your documentation together is that it’s too hard to get to the courthouse. Third, for those on fixed incomes, the cost of procuring an out-of-state birth certificate can be substantial, confusing, and time-consuming–which Stevens even admits is in opposition to the holding in Harper. Again, Stevens seems to be dissenting from his own opinion.
Stevens goes on to attack Justice Souter’s dissent in footnotes, as if he’s too embarrassed to respond in the main text of the opinion. His rebuttals recall the passage in Jeffrey Toobin’s The Nine, in which it’s revealed that Chief Justice Rehnquist took a private limo ride to the Court once he became sick. I am glad the Chief Justice, especially in his time of dire need, was able to get to the Court to do his important work, but not all of the sick and elderly can simply call up a limo and take a drive down to the courthouse. I could find no mention of how the eighty-eight year old Justice Stevens makes it to court every day, but I’ll bet he’s got it a helluva lot easier than most great-grandpas in the state of Indiana. Souter cites the fact that 43,000 elderly citizens in Indiana don’t have photo id, but Stevens just kind of dismisses the figure, even though the District Court admitted this into evidence, the State didn’t object, and it’s backed by extensive research described in Souter’s dissent. Stevens goes onto say that “supposition based on extensive Internet research is not an adequate substitute for admissible evidence,” even though the District Court admitted the evidence itself. Stevens apparently doesn’t realize that the government keeps a lot of official records on these here interwebs.
Stevens’ next argument is bizarre, and really drives a stake through the vampire heart of his argument. Souter cites the fact that public transportation is not widely available in Indiana, especially in rural counties where the county seat may be many miles away, or in large cities where the rigors of mass transit may be especially hard for the elderly and sick. Stevens wonders why these “elderly and indigent citizens” don’t just “obtain a photo identification…during a routine outing with family and friends or during a special visit to the BMV arranged by a civic or political group such as the League of Women Voters or a political party.” Apparently, poor old people are supposed to just drop by the BMV while out taking a ride down to the malt shop with their girlfriends. Fair enough, but it doesn’t seem to occur to Justice Stevens that the whole problem is that the trip itself can be extremely dangerous because they’re frickin’ old and sick.
And yes, Judge Posner, I have been a member of a political party who has helped transport old sick people to vote. I have personally “worked harder” to get supporters to the polls. In fact, I damn near dropped Mervin the diabetic on a sheet of black ice in an elementary school parking lot in Fort Madison, Iowa just to get his ass in to caucus for that scumbag John Edwards. I drove his motorized wheelchair into a snowbank at the nursing home. That wheelchair, my friends, is not making it twenty miles down the road in the snow to the Lee County courthouse in Keokuk so Mervin can fill out his I’m-too-poor-to-vote affidavit. I damn near broke Everett’s hip trying to get him out of the van. I lost Mary in the elementary school.
So don’t tell me, judges, that you can just pop over to the courthouse and all this is no big deal. When you’re dealing with the old and sick–the most vulnerable of our citizens–it is a big deal. It can also be life-threatening if you’ve got to go clear to the county seat, whether you live in a rural or urban area. And yes, I’d be just as pissed if these disenfranchised voters were going to vote Republican–hell, in many rural counties where getting to the County Clerk’s office is a long highway drive, they probably will. That’s not the point—especially as it relates to the Equal Protection Clause. Poor black folks in the city and poor white folks in the country all deserve the right to vote. Democracy demands it, and the Equal Protection Clause of the 14th Amendment of the United States Constitution, you would think, would command it.
Apparently, the chauffeurs of the elderly of the High Court are tipped well enough that they’ve made the justices so comfortable they don’t realize this. It shouldn’t take a de facto poll tax, three phone calls and a bunch of faxed documents to out of state departments of revenue, two thirty miles trips to the county courthouse, and if that falls through, another trip to courthouse to fill out a humiliating affidavit, just to vote. You’d think a damn-near ninety year old man would realize that.