The Supreme Court will have to decide whether to take a voter identification case, the Crawford case from the Seventh Circuit, and Rick Hasen argues that it should.  The Crawford opinion, authored by Richard Posner, upholds a voter identification statute with a series of blithe assumptions about the relative insignificance, to individual voters, of voting; and it decides that states can impose these requirements on the off chance that there is fraud, hard as it is to detect or to prove.

     It is risky indeed to expect anything from the same Court that issued the notorious decision in Purcell v. Gonzalez.  There the Court suggested that evidence of fraud was not all that necessary to support voter identification initiatives since states could restrict the rights of one class of voters to assuage the mere fear of fraud among others.  Since Judge Posner employs similarly shoddy reasoning in Crawford, why should we believe that the Court would take this case and upgrade the quality of analysis in this area?  Serving up this case for the Court’s treatment, at this time, presents risks of the magnitude run by the State of Vermont and their supporters in the Randall v. Sorrell case, where a successfully litigated campaign finance case in the lower court turned to dust in Washington.  Except that here, the plaintiffs, having lost in the lower court, might enshrine their loss in the law of the land.

      The case would come before the Court when wars have broken out over the empirical support for (or against) these kinds of statutes.  The research enterprise has become a frontline in the dispute.  For this reason, a balancing test of any such law like Indiana’s, weighing harms against benefits, does not promise a clear answer.  It is more certain to yield different answers depending on who might be the tester.  One risk of having the Court take up Posner’s decision is that it will conclude that it is a masterstroke, a reason why evidence need not matter, which is just the conclusion that it reached in the Purcell decision.

      The dissent in Crawford called for frank recognition of the purpose behind the statute.  Hasen has written incisively about the weaknesses of intent-based analysis of election law enactments.  And yet, in the last weeks and months, the issue of voter fraud, now prominent in the nation’s politics, owes its high visibility to the question of intent.  This what the Congress is examining in the conduct of the Gonzales Justice Department, or what the press has identified in the pressures put on DOJ by Members of Congress dissatisfied with the performance of US Attorneys.  Intent is rightly the first point raised against the Indiana law by the Crawford dissent.  Worries about intent are unavoidable, forced by the known facts to our attention, and any judicial judgments now made without reference to or reliance on intent will have been decided with one eye deliberately closed to material facts.

      Neither in accepted social science, nor in a developed or accepted jurisprudence that turns on intent, is there much basis to hope that the Court will act wisely to protect the rights of voters now under attack by parties and legislatures.  In the politics of the times and the recent misbegotten decision-making of lower courts, like the Crawford court, there are plenty of excuses for a bad decision.  This seems like a perilous time to invite the Court to make one.  It might be best to hope that it will pass on the opportunity.

Bob Bauer