[EL] ELB News and Commentary 7/12/13

[Robbin Stewart]

http://ballots.blogspot.com/2013/07/1-at-24-n-2-constitution-uses-words.html

[1] <http://electionlawblog.org/#_ftnref1> Id at *24 n 2 (“The Constitution
uses the words ‘right to vote’ in five separate places: the Fourteenth,
Fifteenth, Nineteenth, Twenty–Fourth, and Twenty–Sixth Amendments. Each of
these Amendments contains the same broad empowerment of Congress to enact
“appropriate legislation” to enforce the protected right. The implication
is unmistakable: Under our constitutional structure, Congress holds the
lead rein in making the right to vote equally real for all U.S. citizens.
These Amendments are in line with the special role assigned to Congress in
protecting the integrity of the democratic process in federal elections.

Hasen today has another round <http://electionlawblog.org/?p=52866> in his
posts on Justice Ginsburg.
I have two reactions to this.
First, does this signal a willingness by Ginsburg to take on a 24th
Amendment case, such a voter ID case? There are several 24th Amendment
claims percolating through the lower courts, one in Wisconsin in particular.

Second, would it make sense to put in a count in a complaint that, "taken
together, the 14th, 15th, 19th, 24th and 26th Amendments protect an equal
right to vote which is fundamental, and should be given strict scrutiny"?

Voter ID is intended to, and does, discriminate against blacks not because
they are black, but because they are Democrats.  Voter ID, at least in my
state, discriminates against those 18-20, because the over 65 cohort gets
to automatically use absentee ballots,and thus can avoid voter ID. Voter ID
discriminates against a small number of women who use different names than
on their birth certificate, for marital or professional reasons, and have a
more difficult time obtaining "valid" conforming ID.
The 24th Amendment establishes an absolute bar to the use of fees as a
condition to voting, and estabishes, in Harman v Forsennius, a prohibition
on obstacles to voting, although that case does not specify a standard of
review.
The 14th Amendment protects due process, which substantively probably
includes the right to vote.
It protects the privileges and immunities of federal citizenship, of which
voting in federal elections is one.
Most importantly here it provides for equal protection.

Equal protection can be mere rational basis at times, but when fundamental
rights are involved, strict scrutiny has traditionally been applied.
Caroline Products note 4.

Compare Crawford's use of the Anderson test with Harper v Virginia's strict
scrutiny.
These two approaches can be reconciled by Norman v Reed, which finds that
strict scrutiny applies if the burden is severe. No case tells us how to
know when a burden is severe; we are back to indeterminacy on this point.
But they know it when they see it.

What would be needed to invoke Norman v Reed is the right set of plaintiffs.
You would want a black person without ID. Maybe someone who has been told
they can't get a birth certificate without ID and can't get ID without a
birth certificate. Somebody hispanic.
A teenager. A woman who uses her second ex-husbands last name. A white
patriot redneck who is unwilling to submit to a search of their papers and
effects. Somebody who had to pay a fee to get documents.

You'd also want a Brandeis brief of how voter ID has been playing out in
practice. How many votes rejected? How many people turned away from the
polls without being given provisional ballots? How many elections decided
by less votes than the number not counted due to voter ID? What is tha
rcial and partisan breakdown of the rejected provisional votes? That sort
of thing.

The kind of argument I want to contruct is one that says voter ID provides
for unequal protection for racial and political minorites, to the class of
teenage voters, to women, and charges a fee for voting for most voters, and
creates extra paperwork hassles for those who are able to avoid the fee,
and that these involve a federally protected fundamental right,and should
be given strict scrutiny.

The case would distinguishable from Crawford, where plaintiffs didnt have
compelling facts or plaintiffs or the right legal theory. On the court
today are, I am going to assume, 4 votes against voter ID, 3 votes to
sustain it, and two swing votes, Kennedy and the Chief Justice.

A major win in such a case would be for the Court to apply strict scrutiny.
A minor win would be for the court to continue to apply the Anderson
balancing test, but find that the balance tips in favor of plaintiffs.


On Fri, Jul 12, 2013 at 12:16 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>    <http://electionlawblog.org/>
>     Justice Ginsburg’s Vigor, as Evidenced by Her Shelby County Dissent<http://electionlawblog.org/?p=52866>
> Posted on July 11, 2013 9:09 pm <http://electionlawblog.org/?p=52866> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> [This is one of a series of posts <http://electionlawblog.org/?p=52774>on issues related to the
> *Shelby County *<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>voting
> rights case flagged, but not fully developed, in my draft paper, Shelby
> County and the Illusion of Minimalism<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>
> .]
>
> One of the last major opinions Justice Stevens wrote for the Supreme
> Court, his dissent <http://www.law.cornell.edu/supct/html/08-205.ZX.html>in the
> *Citizens United* <http://www.law.cornell.edu/supct/html/08-205.ZS.html>campaign finance case, was a disappointment. Rather than being a strong and
> crisp statement of principles to support reasonable campaign finance
> regulation under anti-corruption, egalitarian principles, or both, the
> opinion was meandering and unfocused (so much so that I dedicated a law
> review article<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1737938>to its weaknesses). I had always been a fan of Justice Stevens and found
> this disappointing. Justice Stevens too expressed concern about his oral
> dissent in *Citizens United* in explaining why he decided it was time to
> retire<http://www.abajournal.com/news/article/justice_stevens_decided_to_retire_after_stumbling_during_citizens_united_di/>
> .
>
> I bring up the Stevens issue because there has been talk too that Justice
> Ginsburg should retire soon<http://www.thedailybeast.com/articles/2012/05/24/is-justice-ginsburg-risking-the-future-of-the-supreme-court.html>given her age and the chance that the next President might be Republican,
> giving Republicans the chance to put a young new conservative on the Court.
> In an interview last week with Joan Biskupic<http://www.reuters.com/article/2013/07/04/us-usa-court-ginsburg-idUSBRE9630C820130704>,
> Justice Ginsburg rejected retirement talk, putting the kibosh on
> conventional wisdom that she would retire at the end of the Court’s next
> term.
>
> The question whether the 80-year-old Ginsburg should retire is a difficult
> one, and  I will likely leave this debate for others. The issue is
> difficult because, unlike Stevens, Ginsburg is still at the top of her
> game. If Justice Ginsburg started missing a step, the case for her quick
> retirement would be an easy one.
>
> Her dissent in the landmark voting rights ruling last month, *Shelby
> County v. Holder*, is crisp and directed, pointed and clear. With a couple<http://electionlawblog.org/?p=52774>of exceptions (most importantly its
> attempt <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612> to
> paint a happy picture of Congress’s 2006 renewal), it is an exemplary
> dissent.
>
> Most impressive about the dissent is that Justice Ginsburg offers a
> nascent new theory of federal power to regulate state elections in the name
> of promoting democracy.This is hardly the stuff of a Justice going through
> the motions. The opinion puts forward the theory and at the same time
> explains what I’ve considered<http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html>to be a curious
> decision<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/are_the_liberals_on_the_supreme_court_savvy_or_suckers.html>of Justice
> Ginsburg and the other liberals <http://electionlawblog.org/?p=51773> to
> join in full Justice Scalia’s opinion in the *Arizona Inter-Tribal*
> <http://www.supremecourt.gov/opinions/12pdf/12-71_7l48.pdf>case.  Part of
> that opinion seems to give states new ammunition to fight *against*federal oversight of elections.  So why did Ginsburg sign it?  Here’s the
> relevant discussion from my draft paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>
> :
>
> The dissent offers a muscular and integrated vision of the five
> constitutional amendments mentioning the right to vote and, coupled with
> its view of the Elections Clause in Article 4, the Constitution gives
> Congress broad power to protect the franchise and democratic processes
> against state encroachment.[1] <http://electionlawblog.org/#_ftn1>
>
>  ------------------------------
>
>  [1] <http://electionlawblog.org/#_ftnref1> Id at *24 n 2 (“The
> Constitution uses the words ‘right to vote’ in five separate places: the
> Fourteenth, Fifteenth, Nineteenth, Twenty–Fourth, and Twenty–Sixth
> Amendments. Each of these Amendments contains the same broad empowerment of
> Congress to enact “appropriate legislation” to enforce the protected right.
> The implication is unmistakable: Under our constitutional structure,
> Congress holds the lead rein in making the right to vote equally real for
> all U.S. citizens. These Amendments are in line with the special role
> assigned to Congress in protecting the integrity of the democratic process
> in federal elections. U.S. Const., Art. I, § 4 (“[T]he Congress may at any
> time by Law make or alter” regulations concerning the “Times, Places and
> Manner of holding Elections for Senators and Representatives.”); *Arizona
> v. Inter Tribal Council of Ariz., Inc.,* –––U.S., ––––, –––– – ––––, 133
> S.Ct. 2247, –––– – ––––, ––– L.Ed.2d –––– (2013)).
>
> This footnote may help explain why the *Shelby County *dissenters were
> willing to sign on to Justice Scalia’s majority opinion in *Arizona v.
> Inter Tribal Council* despite language in the opinion which could be used
> later by states to fight federal election legislation by claiming such
> legislation impedes state power to set voter qualifications. *See*Richard L. Hasen,
> *The Supreme Court Gives States New Weapons in the Voting Wars*, The
> Daily Beast, Jun. 17, 2013,
> http://www.thedailybeast.com/articles/2013/06/17/the-supreme-court-gives-states-new-weapons-in-the-voting-wars.html.
> In a future case involving a state’s qualifications power being raised
> against a federal election rule, the dissenters likely would seek to
> distance themselves from the voter qualifications dicta in *Inter Tribal
> Council* just as they distanced themselves from the *NAMUDNO *dicta in *Shelby
> County*. Instead, the dissenters offer a nascent theory of broad
> congressional power to assure equality in voting.
>
>  So say what you will about whether Justice Ginsburg should retire given
> her age, giving President Obama a sure chance to appoint a young new
> liberal Justice to the Court. But don’t think for a moment that Justice
> Ginsburg isn’t up to the task of continuing at full (and impressive for any
> age) strength for the near term.
>
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