Legal Commentary

Crawford, Continued

By Professor University of Miami School of Law

It is relatively rare that I find myself agreeing with anything coming out of the Washington Legal Foundation, but it does happen.

And WLF Chief Counsel Richard Samp’s analysis in More on Crawford: The Court Steps Back From Electoral Refereeing, which is published at SCOTUSblog, has a lot I agree with, especially this part, some of which is a more elegant version of what I said yesterday,

I disagree with those who suggest that the Crawford shuts the courthouse door entirely, even to discrete groups of voters who can demonstrate that a nondiscriminatory election regulation imposes a disproportion impact on their groups. While Justice Scalia’s opinion provides little comfort to such groups, Justice Stevens seems quite receptive - suggesting that there are as many as six justices who would allow such suits. Indeed, Justice Stevens virtually invites a follow-on lawsuit by one group of voters: those who have a religious objection to being photographed. He makes clear that while it may be an acceptable burden to require provisional voters to make a single trip to the county courthouse to validate their ballots, the burden becomes unreasonable if a voter is required to make the trip election after election, as Indiana law apparently would require of those with a religious objection to being photographed. Perhaps Justice Stevens calculated that such suits would be relatively uncommon and thus minimally intrusive. Political parties might well be less interested in financing a challenge to a voter ID law if the end result would be to ease ID requirements for a very small group of voters.

Justice Stevens also indicated that a voter ID law is likely unconstitutional if a State charges a fee to provide the mandated ID. Indiana avoided that problem by eliminating its fee for non-driver IDs at the same time that it adopted the voter ID law. Justice Stevens apparently took a stand against ID fees in order to remain consistent with Harper v. Virginia Board of Elections, the 1966 decision that struck down a $1.50 nondiscriminatory poll tax. But the distinction he makes between prohibited ID fees and the other financial burdens imposed by voting regulations is never made clear. It is not at all self-evident why a fee to obtain an ID is any more burdensome than is the cost of transporting oneself to the county courthouse to validate a provisional ballot.

Full post as published by Discourse.net on April 29, 2008 (boomark / email).