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Voter ID and Campaign Finance:
Reading over Crawford v. Marion County Election Board, the Voter ID case, it occurs to me that the case shares a lot of structural similarities with McConnell v. FEC, 540 U.S. 93 (2003), the McCain-Feingold/BCRA campaign finance case. In both cases, there were two basic issues: (1) What's the degree of scrutiny for a facial challenge to a statute that is claimed to infringe on constitutional rights central to the voting process, and (2) How much evidence is there of a problem in need of correction, and how hard should the courts look for it?

  Of course, the two cases raise different issues, and as with any two cases, different Justices can vote differently for lots of perfectly legitimate reasons. Still, it's interesting to note that the statutes in the two cases have generally opposite political polarities — while Voter ID laws tend to be supported by Republicans and opposed by Democrats, the 41 "no" votes against BCRA in the Senate were 38 Republicans and 3 Democrats — and there was only one Justice of the seven on the Court for both cases who voted either to uphold both laws or strike both down. And the vote of that one Justice, Justice Stevens, has of course been the subject of considerable speculation to answer the puzzle of why he voted as he did.

Related Posts (on one page):

  1. Similarities Between Crawford and McConnell:
  2. Voter ID and Campaign Finance:
Mike& (mail):
Interesting take. I hadn't thought of that myself, so I'm not sure yet if I agree. But very thought provoking.

Somewhat relatedly: Compare the standing reasoning in Newdow with the Justices' votes in other standing cases.

If "judicial activism" means that a judge is imposing his "will" instead of the "law," then shouldn't evidence of inconsistent positions serve as good evidence that a judge is attempting to engage in judicial activism?
4.29.2008 3:23pm
tarheel:
Mike&: Quite true on Newdow. There is no greater example of the bankruptcy of the standing "doctrine" and the ability of judges on both sides to forge the result that they want no matter what.
4.29.2008 3:45pm
GMUSL '07 Alum (mail):
Orin, I think that the issues aren't quite as close.

BCRA is about the money needed to disseminate speech (and time, manner, content, etc.), for which there is an affirmative right in the Constitution in the form of a prohibition on Congressional power. Regardless of its centrality to the voting process, it's a stand-alone right.

The Indiana case is a state law that certainly, on margin, makes it a small degree more difficult for a small portion of the people to vote. But there's no explicit affirmative right to vote (just a prohibition on the means or classes by which the vote can be restricted, so it's implicit at most). I also don't think that there is any sort of stand-alone right being infringed.

Hell, I had to show a photo ID to buy a ticket for the MARC train down from Baltimore to DC. Where are the people complaining about that marginal difficulty on my right (one of the few that survived the Slaughterhouse) to travel across state lines? There are no provisional trips on MARC where you can show a photo ID when you arrive, and if you don't have a photo ID, you won't be driving yourself or flying down either.
4.29.2008 3:48pm
OrinKerr:
GMUS '07 Alum,

I'm curious -- are your views on the two laws as a matter of policy the same as your views of the two laws as a matter of constitutional law? Or do they diverge?
4.29.2008 3:57pm
bittern (mail):
GMUSIL, you have no affirmative right in the Constitution to take a train, so shush. Take the stage or ride a horse.

Mike, is that what "judicial activism" meant when last we saw it? Hard to keep track. OK's idea suggests that at least 8 of 9 justices were results-oriented at least one of two votes. Question: was Stevens 0 for 2 or 2 for 2.
4.29.2008 3:58pm
john:
I'm no expert in this area, but isn't one big structural difference the special standard for First Amendment facial challenges?
4.29.2008 4:10pm
Anonymouseducator:
I ride the MARC all the time, and I have never shown ID. I buy my tickets at the machine though. It doesn't change your point, but you can ride the MARC without ID.
4.29.2008 4:12pm
Mike& (mail):
But there's no explicit affirmative right to vote (just a prohibition on the means or classes by which the vote can be restricted, so it's implicit at most).


Constitution:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

And:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

What is your method of statutory and constitutional interpretation? Can you cite any appropriate court cases or historical material that agree or disagree with your view?
4.29.2008 4:35pm
Mike& (mail):
BCRA is about the money needed to disseminate speech (and time, manner, content, etc.), for which there is an affirmative right in the Constitution in the form of a prohibition on Congressional power.... there's no explicit affirmative right to vote (just a prohibition on the means or classes by which the vote can be restricted, so it's implicit at most).


Here is how the First Amendment reads: "Congress shall make no law ... abridging the freedom of speech []."

Here is how the Twenty-Fourth Amendment reads: "The right of citizens of the United States to vote ... shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax."

Here is how the Twenty-Sixth Amendment reads: "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."

Please explain to me how those three provisions are materially different.
4.29.2008 4:41pm
bittern (mail):
[Deleted by OK on civiliy grounds. C'mon, folks, please try to keep the posts substantive and civil.]
4.29.2008 4:50pm
john:
Mike,

The first provision is a blanket prohibition on the abridgement of a constitutional right. The second and third provisions forbid abridgement of a constitutional right for specific reasons, but they do not foreclose abridgement for other reasons (like having committed a felony, for example).
4.29.2008 4:50pm
Mike& (mail):
The first provision is a blanket prohibition on the abridgement of a constitutional right. The second and third provisions forbid abridgement of a constitutional right for specific reasons, but they do not foreclose abridgement for other reasons (like having committed a felony, for example).


This is question begging. Specifically, your response presupposes that we have a definition of "constitutional right."

An alleged George Mason University law grad has alleged that, based on the text of the Constitution, the right to speak is explicit, and the right to vote is implicit.

My question is: Why? That is, what is it about the way the words are used in the constitutional passages cited that leads us to this conclusion?
4.29.2008 5:03pm
john:
I was just answering your question ("explain to me how those three provisions are materially different"), and I have no brief for the George Mason University law grad. The right to vote is just as explicit as the right to speak, but it is not as unqualified or absolute.
4.29.2008 5:06pm
PDXLawyer (mail):
Mike&- that's easy.

The Constitution says that the right to vote shall not be abridged "by reason of" or "on account of" a few specific reasons (age over 18, or failure to pay a tax, or on account of race or previous condition of servitude - you forgot that one). Abridging the right to vote for other reasons (for example, in many states, because of conviction of a felony, and in most states during actual incarceration after conviction) is Constitutionally uncontroversial.

By contrast, the First Amendment doesn't say that the Congress shall make no law abridging freedom of speech on account of political viewpoint, or because of unpatriotic content, or the like. The First Amendment says that the Congress shall make no law abridging freedom of speech [implicitly, for any reason whatsoever].

So, for example, the government can't say "you can speak, but only on the first Tuesday in November, and only at the place we designate for speaking." They can do that for voting.

Of course, maybe the drafters of the Constitution got it wrong, and there ought to be a general right to vote. It certainly seems plausible to me. But th text of the document itself goes the other way.
4.29.2008 5:07pm
John P. Lawyer (mail):
Though I usually avoid "personal squabbles," I think "Mike&" should stop posting if he cannot identify any material differences between the language of the First and 26th Amendments. Here's a hint - the 26th refers only to "age"
4.29.2008 5:10pm
Mike& (mail):
The Constitution says that the right to vote shall not be abridged "by reason of" or "on account of" a few specific reasons (age over 18, or failure to pay a tax, or on account of race or previous condition of servitude - you forgot that one).



There is that creepy "right to vote" phrase again. How do we know, by reading the text of the Constitution, that there is a right to vote? I contend that it is easy.

However, GMU Law Grad '07 said that the right to vote is implicit, not explicit. He said that the right to speak was explicit, not implicit.

Do you agree with that viewpoint? If you do, please explain. If you don't, then we are in agreement and thus your points above reference some other discussion.
4.29.2008 5:11pm
Mike& (mail):
Though I usually avoid "personal squabbles," I think "Mike&" should stop posting if he cannot identify any material differences between the language of the First and 26th Amendments. Here's a hint - the 26th refers only to "age"


I can't. I think both amendments recognize explicit constitutional rights.

How can you make an exception to a rule if there is no rule? How can you cut out a slice of cake if there is no cake?
How can you say a right shall not be abridged for x-reason if there is no underlying right?

Can you hear the sound of one hand clapping if there is no hand? ;-)

It's an (alleged) GMU Law Grad who claims that there is a difference between those amendments. I made that clear in my other comments. I'd like to hear his reasoning.

If you agree with him, I'd like to hear your reasons.
4.29.2008 5:17pm
Jacob Berlove:
To state the obvious, Titles I and II of McCain-Feingold facially abridge the Freedom of Speech, by rendering some heretofore (at the time of the adoption of the first and fourteenth amendements) permitted speech criminal unless compliant with a whole Byzantine system of regulation. The 1st amendement denies Congress (and, after its incorporation, the states) the right to enact any law that "abridges the freedom of speech".

But conservative justices are probably unsympathetic to Warren Court precedent protecting a right to vote. In 1789, some states still retained property qualifications, and the fourteenth amendement's equal protection clause and section that penalizes states denying non-criminal white men over 21 the right to vote were not understood to guarantee any implicit right at all- as proved by the need for a fifteenth amendment banning abridging the franchise due to race or previous condition of servitude. Indiana did not do so, nor did it abridge the franchise on account of age or sex. Since the constitution only bans poll taxes in federal elections, the justices are unlikely to set a strict standard in state ones, and the id card was available here for free (though the birth certificate wasn't). Since any further restrictions on a state's right to determine the qualifications of its voters doesn't fit in to the language of the constitution, of course you can't expect Conservative justices who want to pay lip service to contrary precedent to ste a very high standard of scrutiny. So, at least when it comes to the conservative justices, there seem to be legitimate non-political judicial philosophy reasons to explain the votes in these cases.
4.29.2008 5:50pm
John P. Lawyer (mail):
The 26th Amendment recognizes an "explicit" constitutional right that persons shall not be denied the right to vote because of their AGE. And that's it. That the 26th Amendment references a "right to vote" does not mean that that right exists wholesale elswhere in the constitution. Indeed, the passage of the 19th Amendment should clue you in on this fact. Now there are some that argue that there is a free-standing federal constitutional "right to vote" (see: WE NEED A CONSTITUTIONAL RIGHT TO VOTE IN PRESIDENTIAL ELECTIONS by Michael Dorf), but both the Constitution's text and Supreme Court precedent suggest otherwise. See: A Right to Vote by Jamin B. Raskin
4.29.2008 5:51pm
Roscoe (mail):
I disagree that the two situations are alike, or that one can not have a principled belief that one law is unconstitutional and the other is not.

With respect to the campaign finance law, the 1st Amendment, on its face, prohibits Congress from passing laws that restrict speech. That is precisely what the campaign finance law is, in fact it is specifically intended to restrict certain types of speech.

OTOH, the Constitution doesn't say anything close to prohibiting the states from requiring persons who wish to vote to prove who they are in some fashion. So to say the voter id law is unconstitutional, you have to expand the textural language in some fashion.

More significantly, the voter id law was not intended to restrict anyone's right to vote. Rather the clear intent of the law was to prevent voter fraud (and thereby prevent the dilution of the honest vote).
4.29.2008 5:59pm
common sense (www):
The United States shall guarantee to every state in this union a republican form of government...

I'm not sure if this is quite an explicit right to vote, but there is certainly an argument that a republican form of government includes a right to vote.
4.29.2008 6:50pm
Ryan Waxx (mail):

I'm not sure if this is quite an explicit right to vote, but there is certainly an argument that a republican form of government includes a right to vote.


If that is going to be your angle, then there are plenty of republican forms of government in which the right to vote is restricted in some fashion. You could even have poll taxes... that wouldn't make it not a republican form of government.

So that text you quote doesn't prove what you want it to prove. Sorry.
4.29.2008 6:57pm
Mike& (mail):
The 26th Amendment recognizes an "explicit" constitutional right that persons shall not be denied the right to vote because of their AGE. And that's it.


Your argument suggests that something that is qualified cannot be explicit. I never suggested, by the way, that the right to vote was not qualified. My claim was that it was explicit.

Your argument uses improper definitions. Qualified means limited; explicit means clearly stated. Something can be explicit and qualified. "You have the right to park your car here from 9 a.m. to 5 p.m." gives you an explicit and qualified right to park your car.

You can't say, "There is no right to park your car because you have to move it after 5 p.m." You do have a right to park your car. Your right is simply qualified.

Also, the Twenty-Fourth Amendment states: "The right of citizens of the United States to vote in any primary or other election for President or Vice ... shall not be denied or abridged ... failure to pay any poll tax or other tax."

I read that as saying you have a right to vote, and that right to vote may not be abridged by failure to pay a poll tax.

What is your interpretation of the Twenty-Fourth Amendment?

Again, if you want to claim that the right to speak is broader than the right to vote, I might agree with you. But if you want to claim that the right to vote is only implicit in the text of the Constitution, you'll need stronger arguments.
4.29.2008 7:22pm
common sense (www):
Ryan-
Explicit rights can be restricted. I wasn't arguing that in the least. I was merely weighing in the whether a right to vote is explicit or not, and not even stating an opinion- merely pointing out a part of the Constitution that might be read to provide an explicit right to vote. I don't think that anyone can argue that the right to vote can't be restricted.
4.29.2008 7:47pm
Cornellian (mail):
The 26th Amendment recognizes an "explicit" constitutional right that persons shall not be denied the right to vote because of their AGE. And that's it. That the 26th Amendment references a "right to vote" does not mean that that right exists wholesale elswhere in the constitution.

So on that reasoning, there's no "right" in the Constitution against unreasonable searches and seizures? After all, the 4th Amendment only says that the right shall not be violated, not that the right exists in the Constitution.

The 4th Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .
4.29.2008 9:29pm
GMUSL '07 Alum (mail):
Orin, to the extent that my policy views diverge from my constitutional views on McConnell, they're even more protective of speech. I think that Crawford was rightly decided as a constitutional matter, but my policy views are more or less agnostic -- I find it really hard to get worked up about showing a photo ID, which you also have to do to get on an airplane, buy alcohol, or even enter many, if not most, government buildings in this day and age. If anything, the photo ID requirement to enter a government building certainly infringes (though it does not restrict) the 1st Amendment right "to petition the Government for a redress of grievances" by making it more difficult to lobby, and the photo ID requirement to enter a courthouse similarly infringes one's right (in a pro se matter) to argue a hearing or the trial as one's own lawyer.

If some want to argue that a photo ID unconstitutionally restricts constitutional "access rights", then they should by all means, do so -- just as long as they do it across the board and not only in those places that comport with their political preferences.
4.29.2008 9:42pm
GMUSL '07 Alum (mail):
Mike&,

1) enough with the "apparently". There's nothing false about my alumni (and there was certainly no need to question it as many times as you did).

2) The 1st (and the 4th, per Cornellian's example, and the 2nd, ... ) textually and explicitly SECURES a right by prohibiting government action. It's called a NEGATIVE RIGHT. It, at least textually, applies across the whole field. That's why you don't have multiple provisions referring to freedom of speech, the right to keep and bear arms, or the right to be free of unreasonable searches and seizures.

In contrast, the 15th, 24th, and 26th ASSUME a right to vote. They do not SECURE it; instead merely prohibit voting restrictions based on certain disfavored classifications. That's why there are multiple provisions referring to it. E.g., nothing in the Constitution would stop Congress or any state from stripping the vote from: (a) people below a certain arbitrary IQ threshold (or other g-related test score), on the grounds that there was a necessary level of intelligence to be able to vote and understand the issues; (b) the elderly above a certain arbitrary age threshold, and the grounds that they were senile and similarly to make an informed choice.

Or, to put it more simply, Congress, at least textually and explicitly, has no right to work in the area of speech. In the voting area, they're just missing a few tools from their toolbox.

Feel free to disagree with my position, but it's far from baseless.
4.29.2008 9:57pm
Elliot Reed (mail):
More significantly, the voter id law was not intended to restrict anyone's right to vote. Rather the clear intent of the law was to prevent voter fraud (and thereby prevent the dilution of the honest vote).
You're confusing "clear" with "purported", and your first sentence has an extra "not.
4.29.2008 10:09pm
Roscoe (mail):
Elliot - I appreciate your pointing out the extra "not" in my post above (BTW, so long as we are picking nits, you are missing a closing quotation mark).

Having cleared up that important stuff, I don't think voter id laws are designed to keep legit voters from the polls, and don't accept that there are all these people with the capability to get to the polls that don't have (or can't get) a working id. Rather, these laws are a legitimate first step in response to a legitimate concern about voter fraud.

That being said, if you want, we can ditch "clear intent" and "purported intent" and compromise on "stated intent." I think the point of my post is still made.
4.29.2008 11:08pm
John P. Lawyer (mail):
cornellian: the only right secured by the 26th amendment is that your right to vote will not be abridged on the basis of age. That's it. it doesn't define the scope of the right to vote and it certainly doesn't mean that the constitution recognizes one textually.
4.29.2008 11:34pm
BZ (mail):
Well, before the thread got hijacked, I was going to post about OK's second point: "(2) How much evidence is there of a problem in need of correction, and how hard should the courts look for it?" I guess the flak has fallen sufficiently to actually discuss the issues posed:

I participated in both cases, including filing a Crawford brief discussing the existence of evidence of in-person voter impersonation fraud. To me, this was the critical question, because in an earlier case, Justice Stevens had said "two significant issues in these voter identification cases will be "the prevalence and character of the fraudulent practices that allegedly justify those requirements." Purcell, 127 S.Ct. at 8 (Stevens, J., concurring). In hundreds of pages of briefing, Petitioners and their supporters in this case argued that this sort of voter fraud NEVER occurred. Indiana and its other supporters did not present substantial examples of in-person voter fraud, but merely asserted that there was such fraud and that it was wide-spread.

Justice Stevens wrote the lead opinion for the court, joined by Justices Roberts and Kennedy. On this point, Stevens wrote:

"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,11 that occasional examples have surfaced in recent years,12 and that Indiana's own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor13—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."

Addressing the Petitioners' hundreds of pages of briefs arguing that there was no such fraud, Justice Stevens wrote: "While the [Brennan Center] brief indicates that the record evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud, there remain scattered instances of in-person voter fraud."

Justice Stevens then wrote: "There is no question about the legitimacy or importance of the State's interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear."

The impact of these findings was apparent in Justice Stevens' final conclusion, upholding the statute: "But if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners' facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting "the integrity and reliability of the electoral process." Anderson, 460 U. S., at 788, n. 9."

There was a simple split in this case: Petitioners and their amici = "no evidence. none whatsoever." Respondents and most of their amici = "there is evidence." There was no real digging necessary to resolve this split. For my part, I simply googled once and found tons of evidence, and reported it to the Court (and told them how I found it). Apparently, Justice Stevens did the same, or trusted those who did it for him.

But back to the central point of OK's and the other analyses, the suggestion that Justice Stevens was influenced by his Chicago experiences is plausible, but not the defining difference between this decision and McConnell. In McConnell, the "evidence" included a variety of broadcast ads targetted at individual legislators, who were also at the time candidates. I vetted and approved some of those ads under pre-BCRA standards, and they were fine. But to the three-judge panel, they were not pointed at legislation, but at the candidacies. That conclusion was, at best, arguable, given that the ads I reviewed referring to a candidate spoke specificly about the legislator being the Chairman of the relevant committee which was then about to consider the legislation. Under the first few years' of post-BCRA standards, that would have been an electioneering communication, even though the IRS (whose political evaluators including now-retired Jack Reilly and Judy Kindell were every bit as savvy about political machinations as anyone at the FEC) would have approved them. In the post-Wisconsin Right to Life era, those ads would not have been electioneering communications (at least under the FEC's December 2007 rules, which basically offer a return to the express advocacy standard of Buckley plus disclosure).

In other words, the biggest difference was not necessarily in ignoring evidence for a pre-ordained result, but that the evidence was different in both quality and interpretation. To wit: in McConnell the question was how to interpret the evidence which everyone agreed was there. In Crawford it was whether there was evidence at all. Once there was evidence in Crawford, game over. That was how the case was set up by the challengers. That was how it was decided. Not the same in McConnell.

So to return to OK's second point, it wasn't "how much evidence" but whether there was "any" evidence that decided this case. That's what Judge Posner did below, and that's what Justice Stevens did here.
4.30.2008 10:20am