The Court and the States in the Age of ID

June 18, 2013
posted by Bob Bauer

So this is the question being debated about the Court opinion in the Arizona voting law pre-emption case: is it a major victory for the federal government, or just a win in this case, with the longer term effects to lie more on the side of the states’ authority to shape voting rights in federal elections? Forecasts range from sunny (The New York Times) to cloudy (Hasen) to stormy (Lederman).

Certainly Justice Scalia brought a majority with him in affirming the position he took in oral arguments on the legal options still open to Arizona in pursuing citizenship documentation requirements. The Court also settled the question, in favor of the states, of their authority to determine voter qualification in federal elections. But on the other side is the a strong statement of federal power under Article I, §4, to alter times, places, and manner state regulation, and there is the further view that the federal government’s claim to control of voter qualifications under a time, place and manner analysis was weak to begin with.

This is a framing of the case that rests on a standard tracing of doctrinal developments, questions and implications. There is an alternative view—one that groups this case with other recent ones testing state assertions of authority and that considers how, in functional terms, the Court has been resolving them. Under this view, it matters to an evaluation of the Court’s performance that a number of states have embarked on an unprecedented, sustained course of re-writing voting laws with a restrictive impact on identifiable populations of voters. Overall the Court seems to have shown scant interest in motives and effects and to have given the states leeway, largely encouraged them in fact, to stay on their current course.

The Court is aware of the concrete setting for these legal controversies. It has had to contend with the issues raised, for example, of partisan motivation, which it conceded “may have played a significant role” in Indiana’s adoption of its voter ID statute. Crawford v. Marion County Election Board, 553 U.S. 181, 203 (2008). But it has given little weight to these types of claims. In Purcell v. Gonzalez, 549 U.S. 1 (2006), in an almost casual analysis of asserted state interests in combating voting fraud, the Court proclaimed that states were rightly concerned with calming fearful voters who might otherwise not bother to cast their ballots. (“Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government.”) The Crawford opinion featured an admission that Indiana had no history of impersonation fraud but took comfort in the work of “respected historians and journalists” writing about voter fraud—and in the common knowledge that Boss Tweed had stolen votes in New York in the 19th century. Crawford, 553 U.S. at 195. As Justice Souter noted in his dissent, the hard-nosed analysis seemingly called for under Burdick v. Takushi, 504 U.S. 428 (1992) had gone by the boards. The state was off the hook.

Justice Scalia, in his Crawford concurrence, thought that the deference owed to state regulation of elections was far broader than the majority allowed for. Crawford, 553 U.S. at 204. (The proper test is a “deferential ‘important regulatory interests’ standard for nonsevere, nondiscriminatory restrictions.”) He did not agree that the Court was required to conduct a “balancing” test: he contended that it should apply strict scrutiny only when the burden on voting was severe, and his analysis left unclear when a burden might attain the requisite level of severity. In fact, the Justice suggested that a severe burden is only an obstacle to voting if it is “‘virtually impossible’ to satisfy.” Crawford, 553 U.S. at 205. (Scalia, J., concurring) (quoting Storer v. Brown, 415 U.S. 724, 728-729 (1974). So if everyone had to abide by the same rules—if photo identification was required of all—then the difference in impacts was of no constitutional moment.

Against this history, the Arizona decision has now been issued with Justice Scalia writing for the Court. True, he confirms the federal government’s power to alter rules fashioned by the states under Article 1, §4, but he does not have to reach far, relying (textualist that he is) on the express reservation of authority in the Elections Clause and on settled Court precedent. His reference to the “paramount” power of the Congress over the times, places, and manner of federal elections—a reference cited approvingly by the Times—is drawn from Ex Parte Siebold, 100 U.S. 371 (1880), a case decided 133 years ago. Arizona v. Inter Tribal Council of Arizona, No. 12-71, slip op at 6.

Otherwise Arizona does well. It is encouraged to seek other means of appending a documentation requirement to the Federal Form, and the Justice believes that in the circumstances, it may have available to it a constitutional remedy. And though by no means a requirement of deciding the case, he musters a clear majority for the proposition that states have control over voter qualifications. Perhaps this is the better view, but the Court seems in quite the rush to decide it.

There is much argument still to occur over this case, in law reviews and elsewhere, but when the doctrinal fine points have been fully explored, it will remain the case that the Arizona decision is hard to think about without reference to the contemporary struggles over voting rights. In Crawford, Justice Souter counseled close attention to “the lessons of history” in judging the weight to be assigned to states’ asserted interests, such as “the interest in combating voter fraud [that] has too often served as a cover for unnecessarily restrictive electoral rules.” Crawford, 553 U.S. at 230, n.32 (Souter, J.. dissenting). In the age of voter ID and other state-imposed burden on the right to vote, the Court seems to discount or disregard that history. Critics are concerned that it is a history in the process of repeating itself.

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