Legal Commentary

But of course, all this makes perfect sense if you think that the courts should generally stay out of voting rights litigation. That would explain why the Court has not been willing to review partisan gerrymanders. But it would not explain the Court's decision to strike down the poll tax, which was used for years to keep particular groups in power. And the real elephant in the room is Bush v. Gore, where five justices were clearly quite concerned that Florida's tabulation rules might be manipulated to help one party over another. (In that case, of course, the party benefited was the Democrats, and the Justices in the majority were conservative Republicans. Do we sense a pattern here?).

Like Carhart II, which upheld the federal partial-birth abortion ban against a facial challenge, Crawford leaves open an as-applied challenge by persons whose rights are inhibited by Indiana's voter ID rule; however such challenges will be expensive and difficult to raise in practice. (It's worth noting that the lineup of Justices in Carhart and Crawford is the same with the exception of Justice Stevens.). I tend to agree with Rick Hasen that Crawford gives a fairly strong signal to states that they can pass strongly partisan electoral regulation laws and the Court will look the other way if there is a fig leaf of a public minded purpose, substantiated by only the flimsiest of evidence. Marty points out that evidence of in-person voter fraud is pretty flimsy indeed.

And that brings up another interesting parallel between Crawford and Carhart II. In Carhart II, Justice Kennedy acknowledged that there were "no reliable data" to support the argument that women would be suffer mental or physical harm by agreeing to a partial birth abortion (as opposed to another method of abortion). Nevertheless, relying on Sandra Cano's amicus brief he assumed that some women would later regret their choices to have an abortion (not just partial birth abortions), and so he upheld the ban on partial birth abortions to keep women from making the wrong choice. In Crawford, Justice Stevens acknowledged that "[t]he 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." And yet based on two anecdotes, one from the 1800's, he upholds the statute.

Taking Crawford and Carhart together, we may conclude that these days you don't really need any empirical evidence to uphold limitations on constitutional rights against a facial challenge. All you need is truthiness. Don't get me wrong. Constitutional law has a place for truthiness. It may be all you need when legislatures only need to provide a rational basis for their actions. You can just make up stuff and the courts will defer to your stories. The question in this case, however, is whether Indiana's regulation of the right to vote should be judged by so lax a standard.

Full post as published by Balkinization on April 28, 2008 (boomark / email).