Constitutional Law

Hasen: An Election Law Double Standard

In an commentary on Findlaw, Rick Hasen examines the U.S. Supreme Court's recent (and overlooked – but not by us) ruling in Washington State Grange v. Washington State Republican Party regarding the system states adopt to conduct primary elections. He argues that the decision "could lay the groundwork for upholding a host of draconian laws making it harder for some people to vote . . . especially poor and minority voters."

Hasen argues that the outcome of the Court's decision is a double standard that disadvantages voters. He writes:

If a state tries to justify its election law, it can do so by merely positing -- not proving -- the existence of voter confusion [o]r another interest. However, if voters (or groups) want to challenge a law, then they need to come forward with actual evidence of confusion or another burden. For them to posit the risk of confusion is not enough. This kind of rule is going to make it much harder for those who seek to protect voting rights to succeed in court.

Hasen argues that the decision in Washington State Grange does not bode well for the Indiana voter ID law challenges in Crawford v. Marion County.

Now, rather than be accused of making up a new standard against facial challenges for purposes of deciding the hot-button Indiana voter ID case, the Chief can now point back to the Washington State case as precedent, and state that he is merely applying precedent.

And the effect of that decision? "[W]e can expect a host of other partisan election laws to be put in place, and for those laws no longer to be subject to facial challenges. That means, in turn, that the laws will have to be in effect for a while before they are challenged, and that they will cause damage in the interim, at a minimum."

Full post as published by ACS Blog on March 26, 2008 (boomark / email).