Friday, July 12, 2013
[1] 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 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 the racial 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.
Hasen today has another round 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 the racial 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.
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