Supreme Court Justice John Paul Stevens, who passed away on Tuesday at the age of 99, was a reliable and important voice on issues of voting rights and election law. Most famously, Stevens wrote an impassioned dissent from the Supreme Court’s decision to stop the Florida recount in the 2000 case Bush v. Gore, saying that doing so would cast a cloud over the legitimacy of George W. Bush’s election. He also wrote a lengthy—if somewhat meandering—dissent in the court’s 2010 Citizens United decision allowing unlimited corporate spending supporting or opposing candidates for election. And he wrote a strong dissent in the 1997 case, Timmons v. Twin Cities Area New Party, a less well-known case about “fusion voting.” If Stevens had his way in that case, it would have empowered minor political parties and at the same time made them less likely to be spoilers between major party candidates.
But there is one case that serves as a partial blemish on Stevens’ commendable voting rights record, his 2008 opinion in Crawford v. Marion County Election Board, upholding Indiana’s strict voter identification law. The justice wrote an opinion for himself, Chief Justice John Roberts, and Justice Anthony Kennedy, holding that such a law was supported by the government’s interest in preventing voter fraud and instilling voter confidence, even though Indiana could come forward with not a single case of voter fraud in the state’s history that would have been stopped by the law, and there was no evidence such laws actually bolster such confidence.
One might have expected Stevens to have joined Justice David Souter’s dissent, which pointed out not only the lack of any legitimate interest for the state law but also the burden that the law placed on some voters. And in fact after leaving the court, Stevens explained his skepticism about the law being a means of voters suppression but said he was confined to the material in the trial court record when he decided the case. (Judge Richard Posner, the 7th U.S. Circuit Court of Appeals judge who heard the case before the Supreme Court, expressed similar regrets.)
In hindsight, however, Stevens’ opinion looks like a brilliant tactical move that saved the country from a much worse decision that would have given a green light to restrictive voting laws across the country. His example teaches a lesson that other liberal justices of the Supreme Court no doubt are already beginning to absorb on a court with a firmly conservative majority.
The justices in the Crawford case divided into three camps. Stevens wrote for his group of three. Justice Antonin Scalia, wrote a separate opinion also in favor of upholding the law for himself and Justices Samuel Alito and Clarence Thomas. Both groups of justices believed that because the law did not burden most Indiana voters, a broad claim that the law violated the equal protection rights of voters failed. Souter, Justice Ruth Bader Ginsburg, and Justice Stephen Breyer dissented.
But by writing separately, Stevens may have prevented Roberts and Kennedy from joining in Scalia’s opinion, which would have made it a majority opinion. The main difference between Stevens’ opinion and Scalia’s opinion was how to handle cases where voters could demonstrate that they faced special burdens getting the right kind of identification to be entitled to vote. Stevens’ opinion left the door open for these “as-applied” challenges. Scalia’s opinion presented a much harsher principle: Because most Indiana voters faced no burden getting the right kind of identification to vote, no Indiana voters could bring suit against the law, even if they faced special burdens, because they were poor, had no birth certificate, or had another excuse.
Thanks to Stevens’ narrower opinion, which controlled the outcome of the case, we have had plaintiffs make claims that they should be entitled to an exemption from harsh voting laws, such as in a Wisconsin case that included claims of a concentration camp survivor who could produce no birth certificate or a woman who could not sign a declaration at the motor vehicles department because she did not have the use of her hands. Had Scalia’s views prevailed, these and similar kinds of claims would have had no chance in court.
We do not know if Stevens worked to peel off the votes of Roberts and Kennedy to avert a greater disaster. But the claim is plausible, and it is the best possible strategy for a liberal justice to pursue when facing a conservative-majority court. Indeed, Justice Elena Kagan’s opinion this term in Kisor v. Wilkie shows this same strategy in action. In Kisor, Kagan averted overturning an important principle of administrative law called Auer deference by considerably narrowing the meaning of that deference.
It was far from a perfect solution, but as Stevens taught, sometimes half a loaf is much better than none.
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