Lecture 5

The Right to Participate IV

PSC 293 (Race and the Law)
Lecture 5: Sliding Scale of Review for Election Laws that Affect
the Right to Vote
This Lecture

 Lecture 2
 Sliding Scale of Review for Election Laws that Affect the Right to Vote
 Issacharoff pages 92-127
 Burdick v. Takushi (1992)
 Crawford v. Marion County Election Board (2008)
Burdick v. Takushi (1992)

 Background
 Hawaii prevented voters from casting vote for write-in candidates
 The plaintiff wanted to vote for a candidate not listed on the ballot in an
unopposed race he wanted to vote for Donald Duck
 White, J. for a 6-3 Court
 He starts off by saying that not all laws that place some burden on the right to vote
are subject to strict scrutiny
 States have broad authority to structure elections to prevent chaos
 In Anderson v. Celebreeze (1983) the Court developed a more flexible standard
 Weigh the character and magnitude of the alleged injury to 1st and 14th Amendment rights
against the precise interests of the State as justifications for the burden
Burdick v. Takushi- II

 More from Justice White

 The Anderson standard looks and how much the 1st and 14th Amendment rights are
burdened
 Reasonable, non-discriminatory burdens held to a lower standard
 The burden here is quite limited to those that do not pick a candidate until shortly
before an election
 Voting rights cases are different from ballot access cases
 The election process is meant to minnow out candidates
 The Court buys Hawaii’s justifications
 Prevent sore loser candidacies
 Prevent unrestrained factionalism
Burdick v. Takushi- III

 Kennedy, J., joined by Blackmun and Stevens, JJ. Dissenting

 This prohibition took away petitioner’s right to cast a meaningful vote
 Many state legislative elections go unopposed
 Dominance of the Democratic Party in Hawaii
 He goes on to compare Hawaii to former Soviet bloc countries
 Does not allow for late developing events to be taken into account
 This fails any level of scrutiny
 There are less restrictive ways to prohibit sore losers

 Hawaii is on outlier on write-in prohibitions

 Sometimes write in candidates win (but rarely) Lisa Murkowski
Crawford v. Marion County Election
Board (2008)
 Background
 Indiana passes one of the nation’s first strict photo ID laws in 2005 (SEA 483)
 It was done so on strict party lines
 It is challenged by many Democrats within the state
 They say it burdened their right to vote under the 14th Amendment
 Will arbitrarily disenfranchise some voters
 The prevention of voter fraud does not outweigh the burden
 Voters would have to show a governmental issued photo ID in order to vote
 This would be a limited numbers of identifications it had to have an expiration date and
a photo this initially limited some college student identifications
 This is challenging the law on its face, not as applied
Crawford v. Marion County Election
Board- II
 Stevens, J. announces the judgment of the Court
 Joined by Roberts, C.J. and Kennedy, J.
 This was a plurality opinion
 Was this analogous to Harper? Court says no
 They apply the Burdick test here, not strict scrutiny
 Justifications by Indiana for the law
 Election modernization clean up over inflated voter rolls in Indiana
 Voter fraud but no evidence of in-person impersonation in Indiana
 But the over inflated rolls contain names of persons no longer voters

 Safeguarding voter confidence in elections

Crawford v. Marion County Election
Board- III
 More from Justice Stevens
 This does place a burden on some voters
 Most voters do already possess a driver’s license
 The State mitigates the cost of getting a photo ID by offering a free one for voting
 Other mitigation is the use of mail-in absentee voting for the elderly and handicapped
 Use of provisional ballot- 10 days to get an ID after Election Day
 The number of voters without an ID is small (but lawyering by plaintiffs)
 The precise interests of Indiana outweigh the potential burdens on voters
 The door is left open to an “as applied” challenge
Crawford v. Marion County Election
Board- IV
 Scalia, J, joined by Thomas and Alito, JJ. Concurring in judgment
 They would have used the Burdick approach
 The burdens here are not severe require only nominal effort to obtain ID
 They are reasonable
 Indiana goes beyond what is constitutionally required in its accommodations
 The burden is placed equally on everyone in Indiana
 This is non-discriminatory, generally applicable voting regulation
Crawford v. Marion County Election
Board- V
 Souter, J. joined by Ginsburg, J. dissenting
 They Breyer dissent is omitted
 They take issue with these burdens being “non-trivial”
 A trip to the Indiana BMV incurs travel costs (limited public transportation in Indiana), plus
those of obtaining the necessary documents to get the “free” ID
 This falls more on poor, elderly, and disabled voters
 Few voters took advantage of the provisional ballot process to get counted
 This could affect 43,000 Hoosiers, or 6-10% of voters nationally
 They also do not buy Indiana’s justifications for the law
 Does not touch the types of fraud that may actually occur, especially Indiana’s
documented issues with absentee ballot fraud
Crawford v. Marion County Election
Board- VI
 More from Justice Souter
 They also do not buy Indiana’s justifications for the law
 Does not touch the types of fraud that may actually occur, especially Indiana’s
documented issues with absentee ballot fraud
 See the 2003 East Chicago Democratic Primary and 1998 General Election Crawford County
 The state has not been able to identify a single case of in person impersonation fraud
 Poll workers already match signatures
 The arguments for election modernization and safeguarding confidence fall apart
 They see it as violating Harper in that some voters will not be able to vote for
financial reasons surrounding getting the ID
What level of burden?

 These laws are relatively new

 Many other states have passed these voter identification laws
 Wisconsin (Frank v. Walker, 7th Cir. 2016)
 The Court wanted the as applied challenge reconsidered
 South Carolina (South Carolina v. United States, D.C.C. 2012)
 Allowed a voter to fill out a hardship affidavit on not obtaining an ID (provisional but
not to be second guessed absent some reason)
 Texas (Veasey v. Abbott, 5th Cir. 2016)
 Texas was alleged to have had one of the most onerous voter identification laws
 Violation of VRA Section 2?
 But Oregon (and now Colorado/Washington) all vote by mail states
Who do these laws burden?

 Academic and other studies have shown that African-Americans, Latinos, and
younger people are those most likely to lack the proper identifications
 Is this vote dilution/vote denial?
 Partisan considerations
 These laws have been pushed almost exclusively by Republicans
 Some state courts have found against photo ID laws
 Arkansas, Missouri, Pennsylvania
Next Week

 The Right to Participate III

 Federal Statutory Provisions for the Right to Vote
 Arizona v. Inter Tribal Council (2013)
 Sandusky County Democratic Party v. Blackwell (6th Cir. 2004)
 Husted v. A. Phillip Randolph Institute (2018)
 Issacharoff pages 127-156
 Issacharoff Supplement pages 18-27