Column: Voter-ID Laws and the 2016 Elections (New York Law Journal)

Last week, the 2016 presidential campaign officially kicked off with United States Senator Ted Cruz of Texas announcing his candidacy. On the same day the United States Supreme Court declined to review a case from the Seventh Circuit upholding a Wisconsin statute – ushered into law by presumed 2016 candidate and current Wisconsin Governor Scott Walker – that conditions the right to vote on production of government-issued photo identification by the prospective voter.

Photo identification voting requirements have generated enormous controversy around the country and frequent litigation, highlighted by the 2008 Supreme Court decision in Crawford v. Marion County Election Board¹ upholding an Indiana photo-identification requirement. Supporters of voter-ID laws claim they are intended to prevent voter fraud (though there is little or no evidence that voter fraud is a significant problem), while opponents argue the laws are intended to suppress the vote of minority voters (though there are few studies documenting the impact of such laws).

In light of the growing controversy over photo-identification laws and the fact that the Supreme Court last year blocked the Wisconsin law from being enforced during the November 2014 elections, many expected the Court to accept the Wisconsin case, which had been designed to revisit the 2008 ruling in the Indiana case. Other voter-ID challenges are candidates for future Supreme Court review – including one being litigated in Senator Cruz’s Texas – but the Court’s decision not to review the Wisconsin statute likely means that Crawford will govern how lower courts handle voter-ID challenges affecting the 2016 presidential election and that the Seventh Circuit ruling upholding the Wisconsin law will be highly influential. For those concerned about voter-ID requirements as we head into the 2016 elections, it therefore is worth examining these two cases, which are interesting not only because of their rulings but also because of the judicial dynamics surrounding them.

Photo ID in Indiana
Adopted in 1995 without any Democratic votes by a Republican-controlled legislature, the Indiana law required voters to present government-issued photo identification when voting in person, with accommodations being made for narrow categories of voters. Though photo identifications could be obtained without cost, it could be costly and difficult to obtain the underlying documents (such as a birth certificate) needed to get the ID.

Shortly after enactment of the law, the Democratic party and, separately, elected officials and community groups sued to block the statute in its entirety, arguing that obstacles to getting photo identification would prevent many people from voting and that professed concerns for voter fraud were pretextual. Following discovery, the District Court issued a 70-page opinion granting summary judgment to the state and shredding the plaintiffs’ factual presentation. The trial court found that the plaintiffs “had not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of [the law],” rejected as “utterly incredible and unreliable” an expert’s report that nearly one million registered voters in Indiana lacked acceptable photo identification, and estimated that the actual number of such voters was around 43,000 (about 1 percent of registered voters). The Seventh Circuit affirmed, but the Supreme Court accepted the case for review, raising hopes that it would strike down the law.

The controversy split the Court into three blocks, with three Justices issuing a lead opinion upholding the law, three other Justices concurring, and the remaining three Justices dissenting (in two opinions). The lead opinion from three Justices opened with a review of what it described as the law governing challenges to government schemes burdening the right to vote, going back to a seminal 1966 poll-tax decision and concluding with the key point that even slight burdens trigger constitutional scrutiny:
In Harper v. Virginia Bd. of Elections, the Court held that Virginia could not condition the right to vote in a state election on the payment of a poll tax of $1.50. We rejected the dissenters’ argument that the interest in promoting civic responsibility by weeding out those voters who did not care enough about public affairs to pay a small sum for the privilege of voting provided a rational basis for the tax. Applying a stricter standard, we concluded that a State “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” . . . . Although the State’s justification for the tax was rational, it was invidious because it was irrelevant to the voter’s qualifications.
. . . . In Anderson v. Celebrezze, however, we confirmed the general rule that “evenhanded restrictions that protect the integrity and reliability of the electoral process itself” are not invidious and satisfy the standard set forth in Harper. . . . .
In later election cases we have followed Anderson’s balancing approach. Thus, in Norman v. Reed, after identifying the burden Illinois imposed on a political party’s access to the ballot, we “called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation,” and concluded that the “severe restriction” was not justified by a narrowly drawn state interest of compelling importance. Later, in Burdick v. Takushi, we applied Anderson ‘s standard for “ ‘reasonable, nondiscriminatory restrictions,’ ” and upheld Hawaii’s prohibition on write-in voting despite the fact that it prevented a significant number of “voters from participating in Hawaii elections in a meaningful manner.”

In neither Norman nor Burdick did we identify any litmus test for measuring the severity of a burden that a state law imposes on a political party, an individual voter, or a discrete class of voters. However slight that burden may appear, as Harper demonstrates, it must be justified by relevant and legitimate state interests “sufficiently weighty to justify the limitation.”

Working from this doctrinal framework, the lead opinion first examined the interests that Indiana invoked in defense of the statute. Though it noted the record contained no examples of voter fraud in the state’s history, the lead opinion had no trouble concluding that the state’s claimed interests in modernizing its election procedures, deterring voter fraud, and safeguarding public confidence in elections were legitimate reasons that could support a photo-identification statute.

The lead opinion then turned to the burdens imposed by the Indiana scheme. Significantly – and at odds with the “however slight” burden standard it had articulated – the lead opinion rejected the notion that the routine act of obtaining a free photo identification from the state constituted a burden that triggered constitutional scrutiny for most of the population: “For most voters who need them, the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”

That left the issue of burdens on those who were not “most voters,” specifically those for whom it would be difficult to obtain birth certificates or other underlying documents Indiana required to obtain a photo identification, the homeless, and those with religious objections to being photographed. The lead opinion stated that evidence in the record and ‘facts of which we may take judicial notice” indicated these voters might face “a somewhat heavier burden” and was prepared to assess whether the state’s claimed interests in the statute were sufficient to justify those burdens on this small group of voters under the standards of Harper (the poll-tax case) and its progeny.

At this point, however, the plaintiffs ran into two problems. First, they had challenged the entire statute on its face, which meant they bore an unusually heavy legal burden. More significantly, they had a problematic factual record. According to the lead opinion, nothing in that record established how many voters lacked the required identification or provided any concrete evidence of the burdens voters faced in obtaining the required photo ID. In light of this, the plurality concluded that “the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute.”

Three liberal members of the Court dissented, though it is notable that they agreed with the general legal standards set out by the plurality and only disagreed with the lead opinion’s discussion of the burdens established by the record. More notable still, the author of the lead opinion was the very liberal Justice John Paul Stevens, who might have chosen to vote to uphold the statute as a strategic matter so as to allow him to write the Court’s lead opinion rather then be left with the three dissenters.

Regardless of the judicial dynamics behind the scene, one thing is clear from what emerged from Crawford: advocates viewed it as consciously leaving open a door to a future challenge to a voter-ID law and as delineating the type of factual record that advocates should bring through that door. And it was with that roadmap in mind that advocates believed the Court this year would take up the challenge to the Wisconsin voter-ID law.

Photo ID Redux in Wisconsin
Wisconsin enacted a photo-identification law in 2011. That statute was stricter in many respects than the Indiana one, accepting a narrower group of photo identifications, requiring photo ID for absentee balloting, and providing fewer accommodations for people who lacked ID. In light of these differences, the lack of any evidence of voter fraud in Wisconsin, and the fact that nearly 10 percent of Wisconsin’s registered voters lacked qualifying voter ID (as compared to the 1 percent in Indiana), the District Court believed the Wisconsin case differed materially from the Indiana one and declared the Wisconsin statute invalid in Frank v. Walker.²

The Seventh Circuit reversed in a breezy opinion by Judge Frank Easterbrook (who is notorious for this writing style).³ While acknowledging the factual differences between the record in the Frank case and the one in Crawford, Judge Easterbrook concluded that those differences did not allow Frank to escape the holding of Crawford. Most significantly, he focused on the fact that nothing in the record in the Wisconsin case documented any adverse effect on voters as a result of the Wisconsin voter ID law, which was in place for elections in 2012. Because of this absence, he concluded that the Wisconsin challenge was a facial challenge in the same way the Indiana case had been, therefore requiring the lower courts to adhere to the Supreme Court’s holding in Crawford. And he summarily dismissed the significance of 300,000 Wisconsin registered voters lacking qualifying photo ID on the grounds that the plaintiffs had failed to show that these people could not obtain ID if they tried.

Four days later the full Seventh Circuit deadlocked 5 to 5 on whether to grant en banc consideration of the panel’s ruling, thus leaving it in place. Judge Richard Posner penned a 7,700-word dissent that reads like a Shakespearian lament from a man tormented by a grievous mistake made earlier in life.⁴ The mistake? It was none other than Judge Posner who had written the Seventh Circuit opinion upholding the Indiana statute in Crawford. Tellingly, he uses as the foundation of his dissent a damning quote from the dissent to his own Crawford opinion: “Judge Evans, dissenting from our decision in Crawford, called the Indiana law ‘a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.’ But he cited no evidence to support his conjecture – a conjecture that now seems prescient, however.” For anyone interested in the voter-ID controversy, Judge Posner’s dissent is required reading.

Looking Forward
That the Supreme Court last week chose not to review the Wisconsin law is disappointing and somewhat alarming, given that the Wisconsin law is amongst the strictest of voter-ID statutes around the country (though the Wisconsin Supreme Court forced some helpful changes during the pendency of the Frank litigation). Nonetheless, there is every reason to believe the issue will return to the Supreme Court, as 15 other states now have some form of photo-ID requirements and more may be on the way. With Republican-controlled regimes driving the push for voter-ID requirements and with the lack of evidence of any meaningful voter-fraud problem, it is apparent that voter-ID laws are being put into place for illegitimate reasons, just as were poll taxes in the South. Those challenging voter-ID laws face considerable challenges in putting together a factual record like the one suggested by the Supreme Court in Crawford, but one can only believe that the Supreme Court will not stand idly by in the face of systemic efforts to disenfranchise people.

Footnotes
1 553 U.S. 181 (2008) (plurality)
2 2014 U.S. Dist. LEXIS 59344 (E.D. Wis., Apr. 29, 2014)
3 Frank v. Walker, 768 F.3d 744 (7th Cir. 2014)
4 Frank v. Walker, 773 F.3d 783 (7th Cir. 2014)