Balkinization
In Crawford v. Marion County Election Board, the Supreme Court continues a trend of using the technical doctrines of facial challenges to swat away constitutional litigation and drive questions back to the political process. Whether you think that is a good or a bad thing depends on your view of whether the Indiana legislature was essentially limiting access to the ballot to certain classes of voters in order to help the Republican Party stay in power. If you think that the political process will take care of enfranchising these voters, you need not worry too much about the result. If, on the other hand, you think that the political process is being used to build in advantages for one party over another, there is greater reason to be concerned.As Justice Stevens' plurality opinion points out, all of the Republicans in the Indiana General Assembly supported the bill, while all of the Democrats opposed it. That degree of polarization speaks volumes about the purposes behind the legislation, but the real question is what message you (or the Court) wants to hear. One of the most famous ideas in constitutional law is the idea taken from the Carolene Products decision: courts should closely scrutinize laws when government officials try to skew the rules of political competition to keep their party in power. It's hard to get better evidence of a concerted attempt to fix the voting rules on behalf of a particular party than in this case. I guess we would need a speech on the floor by the majority leader saying "This is designed to screw voters most likely to vote Democrat and throw us out of office." Indeed, even if there was such a speech, it's not clear that it would make a difference to the plurality's new rule. The rule of the case, apparently, is that there are no returns for a Carolene Products defect.
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 a facial 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.
