-
sponsorship
I hate showing ID just as much as the next guy. (Well maybe not as much as John Gilmore, one EFF's founders, who sued the federal government when he was denied boarding because he refused to show any ID.)
But as everyone knows sometimes it is background facts - i.e., not the facts of the case, but the facts in society - that drive decisions. And here, the background is the changing state of ID requirements in the U.S. Over the last 30 years or so, the US has created what is more or less a de-facto National ID card system, of mixed private and public parts, as Michael Froomkin pointed out in a 2004 paper. As the ID-requirement has spread into so many areas, like the entry of public and private buildings, it makes Indiana's law look reasonable, or at least something hard to decide on assumed facts.
So in part, politics; but in part, a battle over ID already lost long ago.
-
sponsorship
All the justices agree that states must "balance" the benefits and costs of voter ID requirements. The benefit is reduction in voter fraud; the cost is disenfranchisement of those who cannot obtain the ID. No one explains what an appropriate balance is, and the answer is far from clear.
To see the problem, suppose that a state can choose an ID requirement along a sliding scale from zero to maximal, where zero means something like "swear that you are eligible to vote and this is the only time you are voting" and maximal means something like supplying a birth certificate and a passport and a driver's license and thumbprints and dental records and retinal scans, etc. As the state increases the strictness of the ID requirement, the risk of fraud declines but the degree of disenfranchisement increases. The question is, what is the constitutionally permissible range on this scale?
It is tempting to think that the social cost of a single fraudulent vote is equal to the social cost of a single disenfranchised voter, and so the rule should be set at the point beyond which more voters would be disenfranchised than fraudulent votes prevented. But this conclusion would be hasty. We might think that even a little fraud throws the whole system in disrepute; or we might instead worry that disenfranchising people is much worse than tolerating a little fraud.
There are more complications. Suppose you think that the majority should rule, and so if a community has 100 eligible voters, then the candidate preferred by 51 should prevail. A strict ID rule, by excluding the poor, would bias results in favor of candidates supported by the rich. But what would be the effect of an insufficiently strict rule? Would the fraudsters favor the candidate of the rich or the candidate of the poor? If you are tempted to say that fraudsters would be paid by supporters of the rich candidate, then you should have second thoughts about supporting a weak rule. A weak rule would, along this dimension, hurt the poor by making it easy for the rich to finance voter fraud.
The current debate assumes that the majority party will choose a rule that keeps the minority party out of power. But once we agree that the majority party can enact anti-fraud rules, we again need to ask how to determine when the majority goes too far. Suppose that the majority belong to the Republican party, and that an incremental tightening of the rule eliminates 10 Democratic voters but also eliminates n cases of fraud. For the new rule to be permissible, can n be 10, or does it have to be 100 or 1000? Could n be 1? Does it matter who the fraudulent voters would have voted for? If they would have voted for Republicans, and n > 10, then the move injures Republicans. Perhaps the safest assumption is that fraud would favor neither party. But its cost would still need to be quantified; otherwise, it is impossible to choose a reasonable n. And how do we quantify the cost of fraud that, because it favors neither party, has no impact on the election?
Many people say that fraud undermines voters' confidence in the system. But so what? Do voters with less confidence vote less? If both the rich and the poor, or Republicans and Democrats, vote less, then reduced confidence won't affect the outcomes of races. And how do we decide how much fraud has to occur before confidence is seriously weakened?
The fact is that no one agrees on what voting systems are supposed to do, nor does anyone really understand how much voting fraud is tolerable and how much is too much; so no one can agree on what the costs and benefits of anti-fraud rules are. Perhaps this is the real reason that the Court is signaling that it wants to have nothing to do with this problem.
-
sponsorship
A few modest additions to the early word on voter ID. First, for all those who would prefer to insist that Justice Stevens is easily pegged as a dyed-in-the-wool liberal, the Stevens-Roberts-Kennedy opinion in Crawford v. Marion County Election Board is Exhibit Q in a long list of decisions in which Stevens, for reasons entirely his own, votes against the liberal line. (His passionate dissent in Texas v. Johnson, in which the majority rejected on First Amendment grounds a Texas anti-flag burning law, is another one that leaps quickly to mind.) The great Justice Stevens is many things, but predictably "liberal" is not one of them.
Second, on Marty's discussion of the paucity of evidence of fraud - Marty is of course right the evidence that fraud has been an actual problem is thin indeed. But I read Stevens' opinion to say that addressing actual fraud isn't the sine qua non of legitimate state interests. Rather, a state measure that promotes the perception of election fairness - whether or not fairness is actually a problem (even in a truthiness sense), or whether the measure will do anything to help the putative problem itself - is an interest itself sufficient to survive facial challenge (assuming the burdens on voters are not too great). That's the upshot of the lengthy passage from the Carter-Baker Federal Election Reform Commission findings Stevens quotes: "The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important." And it's of course the import of the separate section the Stevens opinion devotes to the state's interest in "safeguarding voter confidence." Especially given the hit voter confidence has taken in the post-Bush v. Gore world, I admit I can't see anything wrong with acknowledging this as a legitimate state interest.
As for the burden side of the equation - how much of a burden is an ID requirement? - Stevens, relying heavily on the district court's finding of fact, concluded that he just didn't see the evidence of the statute's generally burdensome nature (although burdensome in specific cases, absolutely possible). So given a legitimate state interest and the possibility that remains of proving the law too burdensome in the next case down the road, I'm not sure Stevens was actually that far out on a limb here.
Finally, having registered to vote for the first time as a resident of Indiana (I attended a fine public high school just outside Marion County), and being asked upon registration to repeat twice (in all friendliness and sincerity) which non-Republican party I wished to associate myself with ("You want to register with what party?"), a word on Indiana politics. The Republicans are conservative. The Democrats are conservative. The difference between them is, conservatively speaking, negligible on a great many matters of state concern. Now it could well be that things have changed a lot in the past, um, number of years since I registered to vote. But I wouldn't put much stock on the view that the outcome of this particular case is likely to rock the Indiana political landscape anytime soon. For that matter, I'm not entirely sure how much a splintered Supreme Court opinion leaving open a host of other possible challenges to such laws does to change anything either - other than to launch a new wave of litigation that should keep us here at Slate occupied well beyond election day.
-
sponsorship
David and I agree that we would like constitutional rules that would facilitate political bargains between people with different political interests; as David puts it: "if you ensure voters are who they say they are, we'll let you register more of them." But there is little reason to believe that the decision in Crawford facilitates such political bargains. Indiana's voter ID laws were among the strictest in the nation without any corresponding investment in government programs that would have made it easier for disenfranchised persons to comply with the law's requirements. It's worth noting, as Justice Breyer points out in his dissent, that the Carter-Baker commission conditioned its acceptance of voter ID laws on the requirement that states also make it very easy to obtain photo ID's and that these ID's would be issued free of charge. Doing so would help ameliorate the predictable effect of these laws acting as the equivalent of a poll tax by other means.
If you want to create incentives to achieve the sort of reforms envisioned by the Carter-Baker commission, you wouldn't want minimal judicial scrutiny of the sort the Court adopts. Rather, you would want a more searching judicial scrutiny that asked whether the state compensated for the difficulties it imposed on particular groups by creating methods of ameliorating those difficulties. Knowing that harsh laws would be struck down unless ameliorating programs were put in place would give legislatures incentives to strike precisely the sort of bargain that David favors. In contrast, the form of scrutiny the Court adopts in Crawford gives legislatures few incentives to strike such a bargain, because majorities can adopt voter ID laws that disenfranchise a significant number of voters who would vote for the opposite party without fear that the courts will strike these laws down.
-
sponsorship
JUSTICE STEVENS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Justice KENNEDY join.
That's from Crawford v. Marion County.
It reveals yet again just how influential Justice Kennedy is: He's such a swinging justice that the opposite poles now won't even let him swing.
And it reveals yet again just how fractured the Court really is. The Chief can stave off division in important cases only by deciding as little as possible. But now it appears, that approach doesn't even really work: it only gets you three, rather than nine. So much for dreams of a new era of good feelings.
-
sponsorship
Marty nicely describes the paucity of evidence supporting Indiana's claim in Crawford v. Marion County Election Board that voter fraud is rampant in Hoosier land. After all, the Court long ago held in Croson that Richmond could not rely on experiences eslewhere to defend it's affirmative action policies. Well, if evidence of race discrimination in the capital of the Confederacy was too uncertain to count unless backed up with local studies, then why should Indiana be able to rely on the lone phony voter in Washington state to save it preferred policy from constitutional challenge?
Fair enough. But consider the other side: just how much evidence did the plaintiffs have to show that the new law would disenfranchise lots of folks? After all, the district court found that 99 percent of Indiana voters already staisfty the new standard and that there is good reason to think that the 1 percent who may not now, easily can. That could be wrong, of course, but the paucity of evidence on both sides here does suggest the reason for the Court's reluctance to decide this facially. Of course, ignorance is not always an excuse. A poll tax is hard to describe as anything other than a burden on the right to vote, no matter if there is evidence of just how many poor people it would block from going to the polls. But an identification requirement is a burden only if in practice it actually operates that way. So, one would think there would need to be a pretty substantial showing first to support a facial attack.
Plus: it's not clear that the politics of this ruling are as bad as Jack or Marty indicates. Here, the state has on its side election monitor extraordinairre - President Carter -- who chaired a presidential commission on election reform that seemed to approve of voter ID requirements as being legitimate. As Carter no doubt reasoned, it may well be much easier politically to pass real reforms to make registration easier -- which could substantilly increase voting by the now disenfranchised -- if strict anti-ftraud measures are also in place. I'd be hesitant to see this case, therefore, as a bad development for those that want to increase the voting ranks. It may instead be a precondition for freeing new possibilities in election reform that could, on net, lead to greater enfranchisement. In other words, if you ensure voters are who they say they are, we'll let you register more of them. Don't we want a Constitution that would facilitate such a trade?
-
sponsorship
Forgive me for interrupting the conversation about the Supreme Court's decision today upholding Indiana's baleful voter ID law, which I hope will continue. But another topic for a moment: Depressing findings from the Chronicle of Higher Education. Even though well-off colleges say they're trying hard to recruit low-income students, the numbers are going in the wrong direction. At the 75 schools with endowments over $500 million, the share of students who received Pell grants, which means they come from families that make less than $40,000 a year, dipped from 14.3 percent in 2004-05 to 13.1 percent in 2006-07. The trend is the same at the 39 tippy-top richest schools: 19.6 percent of students there were low-income in 2004-05, compared with 18 percent two years later.
The time frame under study is short, to be sure. But it also matches a period in which colleges have been talking up class diversity, and in which the idea has been floated as an alternative to race-based affirmative action. The falling numbers show that well-qualified poor applicants don't submit applications in droves to the well-endowed schools, and that the schools haven't really figured out yet how to find them. A few campuses have shown that it's possible to improve at that task: The Chronicle noted schools that are exceptions to the rule because they have posted small gains: Amherst, Holy Cross, Williams, Princeton, and the Universities of Richmond and Texas at Austin. At Smith, 25 percent-plus students are low-income; at UCLA, 35 percent. What are those schools doing differently?
That's the big question, I think. I'd love to hear other people's thoughts, but my own sense is that the answer is not the big feel-good initiative that Harvard and Yale announced this winter: expanding financial aid so that it covers families that earn up to $180,000 or $200,000 a year. As this persuasive NYT op-ed points out, most schools don't have the money to give aid to upper-middle-class families (I hope that $200,000 a year still gets you into that category) as well as truly needy ones. And so, as the op-ed by former Columbia Dean Roger Lehecka points out, the Harvard and Yale move "sets an example that is likely to make it even harder for low-income students to attend the best college for which they are qualified." So forget Harvard and Yale—among the private colleges, what's Smith doing? Or Princeton or Williams or Holy Cross or Amherst?
(Cross posted at XX Factor.)
-
sponsorship
continue reading at Balkinization . . .
-
sponsorship
I'm just beginning to read through the opinions in today's decision upholding the facial validity of Indiana's voter-ID law. Along with many others, I have argued that the law is unconstitutional because it imposes burdens on voting without advancing any governmental interest. Thus, to my mind, the most noteworthy paragraph in Justice Stevens' lead opinion is the one in which he tries to adduce evidence of an actual problem that this law would address:
The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.
The third piece of evidence (Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor) is not really on point, as Justice Stevens more or less acknowledges, because it was "perpetrated using absentee ballots and not in-person fraud," and thus such a fraud scenario would be unaffected by the Indiana law. So what we are left with is (i) "flagrant examples of such fraud in other parts of the country [that] have been documented throughout this Nation’s history by respected historians and journalists" and (ii) "occasional examples [of such fraud that] have surfaced in recent years."
For the first proposition, what does the opinion cite? Only this: an anecdote about in-person voter impersonation allegedly orchestrated by Boss Tweed in 1868. And for the second—occasional "recent" examples? Justice Stevens tips his hat to the Brennan Center's showing that "much of" the evidence of such fraud "was actually absentee ballot fraud or voter registration fraud." Nevertheless, he states that "there remain scattered instances of in-person voter fraud." The evidence for this? That in the 2004 Washington gubernatorial election, a partial investigation confirmed that one voter committed in-person voting fraud.
So we have an anecdote about Boss Tweed and a single modern voter engaged in the sort of fraud at issue here. If that's the best case that can be made in favor of the law ...
[UPDATE: Much more—characteristically excellent—analysis from Rick Hasen here. On the issue I discuss above, and a terrific summary of the holding, Rick writes:
In a nutshell, the approach [of the governing plurality opinion] boils down to this: under the balancing approach of earlier cases (which the opinion says comes from cases such as Anderson and Burdick), a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong. Indeed, though Justice Stevens says that there is evidence of fraud to justify a voter identification requirement, the actual evidence he cites in the footnotes is incredibly thin—either reaching back to 1868 (footnote 11) or a single case of impersonation voter fraud found in a recent gubernatorial election in Washington state (fn. 12). Moreover, Justice Stevens says an interest in preserving voter confidence can justify such laws as well, ignoring undisputed evidence such laws are not at all likely to instill voter confidence (and could in fact do the opposite). Nor does it matter if the motivation in passing the law is completely partisan. The law is to be upheld unless "such considerations had provided the only justification for a photo identification requirement." So those with partisan motive need only find a nonpartisan pretext for such laws. Once the state has posited its neutral reasons for such a law, the law is to be upheld if it doesn't impose serious burdens on most voters. For those voters who do face serious burdens, they must bring an "as applied" challenge where they present specific evidence applied to them as to why the law is onerous. This channelling of election law cases into as applied challenges—part of a recent trend of the Court—is going to make it tough for a lot of plaintiffs who are burdened, and is in sharp contrast with the Court's approach in earlier cases, such as the Harper case striking down the poll tax for everyone, not just poor voters. The evidence in as-applied challenges must be specific and tested in litigation; as Justice Stevens says responding to Justice Souter's dissent: "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication."
* * * *
I am disappointed by how cursory that [plurality] opinion was in its review of the state's interest in light of the highly partisan atmosphere of election administration, and I fear that, despite the Stevens-Kennedy-Roberts' opinion's best intentions, this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections. It is a real disappointment from that perspective.
(Read more from Convictions contributors about the Supreme Court's voter ID decision.)
-
sponsorship
Adam Liptak's article in The New York Times described America's extraordinary incarceration rate, a rate clearly outstripping that of any industrialized country. But Liptak overstates the case when he talks about the relationship between incarceration and the crime rate. He notes that, there is "little question" that the high incarceration rate here has helped drive down crime," while conceding that "there is debate about how much." He quotes former Judge Paul Cassell as saying that a "good case can be made that fewer Americans are now being victimized" because of tougher crime policies. The implication of this statement and others in the article is that while the incarceration rate may be too high, it is somehow a necessary cost of controlling crime.
While I don't pretend to be an expert in crime statistics, the relationship between crime rates and incarceration is not remotely clear and to many lead to a conclusion opposite to that of former Judge Cassell's. See The Sentencing Project, "Incarceration and Crime: A Complex Relationship." and "Lessons of the Get Tough movement in the United States." Violent crime, which increased in the 60s, has experienced a sustained declined over the next three decades, a decline which does not necessarily correlate with onerous incarceration policies, but rather with a host of other factors -- the economy, the extent to which the crack epidemic simply ran its course, community policing, demographics. In any case, incarceration rates increased not because they were somehow essential to control crime but because criminal justice issued had become politicized, fodder for political campaigns and news stories. Murder stories, for example, increased even when the murder rate decline in the 1990s.
Some have even improperly identified the federal sentencing guidelines as a cause of crime rate reduction. 54% of federal prisoners are serving time for drug offenses, according to The Sentencing Project, with only 11% for violent crime. Drug crime rates have increased regardless of the increase in imprisonment. In any event, even assuming increased incarceration contributes to the drop in crime, federal sentencing comprises only a fraction of the sentences meted out in courts around the country. And while some states have guidelines, many do not, and none have copied the federal system's mandatory approach.
Apart from the crime rate, we ought to be looking at what some have called the criminogenic effects of mass incarceration, particularly of African Americans, about which Liptak has written on other occasions. We should be considering whether the mass incarceration of African Americans, particularly for non violent offenses, has wreaked more havoc to those communities than their crimes have. Large numbers of people are reentering communities which have little or no ability to absorb them. While prisoners are not committing crime in their communities while they are incarcerated, they also are not functioning as parents, workers, consumers or neighbors. As Marc Mauer (of The Sentencing Project) reports, there are now about 1.5 million children in the U.S. who have a parent in prison: "The effect on these communities is compounded by the fact that imprisonment has become an almost inevitable aspect of the experience of growing up as a black male in the U.S." an attitude which contributes to repeating the cycle in the next generation.
In short, it is not remotely clear that the blunderbuss approach to crime -- imprisoning everyone for as long as possible -- works, much less in proportion to its considerable costs.