Monday, March 21, 2016
What Green Party v Kemp says about Voter ID.
Today I read a ballot access case, Green Party v Kemp, which reduced ballot access signatures in Georgia from 50,000 to 7,500.
http://ballot-access.org/wp-content/uploads/2016/03/Georgia-win-president.pdf
http://ballot-access.org/2016/03/17/u-s-district-court-invalidates-georgia-petition-requirement-for-president-imposes-temporary-standard-of-7500-signatures/
The case could be very important to the Stop Trump movement; it shows it may not be too late to get courts to open up some of the strict ballot access rules that a candidate who starts now would face. Of course it took this case 4 years to get this far, and it's not over. I remember 1992 when Ross Perot split the conservative vote and Clinton was elected with 38%. Clinton could easily get 38% this year.
I'm not writing about it because of its immediate importance for ballot access. This post is about Voter ID.
The case is a textbook example of how to litigate under the Anderson v Celebrezze balancing test.
Plaintiffs that is; the state didn't seem to know how to proceed. In an Anderson case, there's a two step process. First, you have to get your ducks in a row to show how severe a burden the state's rules are. This takes more than a motion and a brief; Plaintiffs had already lost an earlier summary judgment motion. It takes carefully marshalled evidence supporting arguments. Here, the plaintiffs had an ace in the hole, Richard Winger of Ballot Access News. He is a walking encyclopedia of ballot access stats, and was able to show that all it takes to avoid ballot overcrowding is 5,000 signatures, that Georgia has a long history of overly restrictive ballot access rules that harm national campaigns like Nader's or the Constitution Party, a co-plaintiff in the case.
The court agreed, and found that the rules severely burdened plaintiff, and applied strict scrutiny, or in the alternative the upper range of the Anderson balancing test. By doing the analysis under both approaches, the court has largely insulated itself from further appeal; its finding is not an abuse of discretion or error of law. Nonetheless, this is a very different result from Jenness v Fortson, which had upheld 5% as being reasonable. The 50,000 signatures was based on a 1% requirement, only 20% as strict as Jenness. It's been awhile since I've read Jenness, but it may not have involved a national presidential campaign, one of the factors the court found important.
Anderson was from 1980, the second presidential campaign I was involved in. I guess the case was decided in 1983. For that long, it has been the standard for ballot access cases. But in 2008, the court used it as the standard in Crawford v Marion County, an election case that was not a ballot access case. In Crawford, the court did not, as here, remand back to the district or circuit courts, so the ACLU as counsel had no opportunity to make the kind of arguments and present evidence as plaintiffs did here. I've had no luck in getting anyone interested in revisiting Crawford and Indiana's voter ID rules, now that we've had years of data collection supporting a severe burden standard. In Crawford, the plaintiffs had not raised the severe burden test under Norman v Reed, because the court had never used those standards outside of ballot access before, but instead had usually applied strict scrutiny as in Harper v West Virginia Board.
So the Green Party case shows how to do it: Assemble your arguments showing either that the burden is severe enough to trigger strict scrutiny under Norman v Reed, or that the burden is severe enough to make it to the upper levels of the Anderson sliding scale. Green party did not cite to Norman, but to an 11th circuit case that must have been similar. In Crawford, a pre-enforcement challenge, plaintiffs didn't think they needed to show a severe burden, just enough of a burden to prove standing and justiciability, so they discussed the Amish and the homeless and little old ladies and outlier cases such as those. Instead, more is needed. You need someone like a Mike Pitts who can show that over a thousand people have had their votes thrown away. Some local elections turn on whether provisional votes do or don't get counted. Voter ID dilutes the votes of racial, political and age-based minorities. The unwarranted search without probable cause burdens privacy interests of every voter. Few voters are able to get a so called free ID, that those who can still have to buy the paperwork to get the free ID, and of those who can, most don't and won't, diluting the votes of others.
Most Indiana voters don't have a passport, although more Republicans do. Those are a few examples of burden. Keep piling that up until the burden is severe, or is in the upper range of the Anderson balancing test. All that was just step 1.
Once the standard of review is established, the same facts come right back into play. Think of the Anderson test as a scale, or a teetter-totter. Step 1 decides whether the fulcrum is placed. Step 2 then weighs the voters' interests against the state interests. In Green Party, the state interests turned out to be conjectural, flimsy, and not supported by evidence. I think voter ID would turn out the same way.
So I have a vision of how a case like this could go. I do not have the resources or the talent to do such a case myself, and there doesn't seem to be much of a coordinated national effort to resist voter ID.
The Clinton campaign is doing some cases, the ACLU has been active in PA, the NAACP is going strong in North Carolina, I'm not sure who is behind the Texas case, but I certainly can't find anyone interested in revisiting Indiana.
But I think Green Party shows a way forward, and I wanted to blog about it before it slipped my mind.
I do have one criticism of the Green Party strategy. They rely solely on a federal constitutional claim. My guess is that Georgia also has a state constitution. If this holding had been backed up with an adequate and independent state claim, it would be insulated from Supreme Court review. I think this decision will hold up on appeal, and the temporary relief should be enough if there is no stay, but after cases like Burdick and Twin Cities, plaintiffs should never neglect their state constitutional claims.
Today I read a ballot access case, Green Party v Kemp, which reduced ballot access signatures in Georgia from 50,000 to 7,500.
http://ballot-access.org/wp-content/uploads/2016/03/Georgia-win-president.pdf
http://ballot-access.org/2016/03/17/u-s-district-court-invalidates-georgia-petition-requirement-for-president-imposes-temporary-standard-of-7500-signatures/
The case could be very important to the Stop Trump movement; it shows it may not be too late to get courts to open up some of the strict ballot access rules that a candidate who starts now would face. Of course it took this case 4 years to get this far, and it's not over. I remember 1992 when Ross Perot split the conservative vote and Clinton was elected with 38%. Clinton could easily get 38% this year.
I'm not writing about it because of its immediate importance for ballot access. This post is about Voter ID.
The case is a textbook example of how to litigate under the Anderson v Celebrezze balancing test.
Plaintiffs that is; the state didn't seem to know how to proceed. In an Anderson case, there's a two step process. First, you have to get your ducks in a row to show how severe a burden the state's rules are. This takes more than a motion and a brief; Plaintiffs had already lost an earlier summary judgment motion. It takes carefully marshalled evidence supporting arguments. Here, the plaintiffs had an ace in the hole, Richard Winger of Ballot Access News. He is a walking encyclopedia of ballot access stats, and was able to show that all it takes to avoid ballot overcrowding is 5,000 signatures, that Georgia has a long history of overly restrictive ballot access rules that harm national campaigns like Nader's or the Constitution Party, a co-plaintiff in the case.
The court agreed, and found that the rules severely burdened plaintiff, and applied strict scrutiny, or in the alternative the upper range of the Anderson balancing test. By doing the analysis under both approaches, the court has largely insulated itself from further appeal; its finding is not an abuse of discretion or error of law. Nonetheless, this is a very different result from Jenness v Fortson, which had upheld 5% as being reasonable. The 50,000 signatures was based on a 1% requirement, only 20% as strict as Jenness. It's been awhile since I've read Jenness, but it may not have involved a national presidential campaign, one of the factors the court found important.
Anderson was from 1980, the second presidential campaign I was involved in. I guess the case was decided in 1983. For that long, it has been the standard for ballot access cases. But in 2008, the court used it as the standard in Crawford v Marion County, an election case that was not a ballot access case. In Crawford, the court did not, as here, remand back to the district or circuit courts, so the ACLU as counsel had no opportunity to make the kind of arguments and present evidence as plaintiffs did here. I've had no luck in getting anyone interested in revisiting Crawford and Indiana's voter ID rules, now that we've had years of data collection supporting a severe burden standard. In Crawford, the plaintiffs had not raised the severe burden test under Norman v Reed, because the court had never used those standards outside of ballot access before, but instead had usually applied strict scrutiny as in Harper v West Virginia Board.
So the Green Party case shows how to do it: Assemble your arguments showing either that the burden is severe enough to trigger strict scrutiny under Norman v Reed, or that the burden is severe enough to make it to the upper levels of the Anderson sliding scale. Green party did not cite to Norman, but to an 11th circuit case that must have been similar. In Crawford, a pre-enforcement challenge, plaintiffs didn't think they needed to show a severe burden, just enough of a burden to prove standing and justiciability, so they discussed the Amish and the homeless and little old ladies and outlier cases such as those. Instead, more is needed. You need someone like a Mike Pitts who can show that over a thousand people have had their votes thrown away. Some local elections turn on whether provisional votes do or don't get counted. Voter ID dilutes the votes of racial, political and age-based minorities. The unwarranted search without probable cause burdens privacy interests of every voter. Few voters are able to get a so called free ID, that those who can still have to buy the paperwork to get the free ID, and of those who can, most don't and won't, diluting the votes of others.
Most Indiana voters don't have a passport, although more Republicans do. Those are a few examples of burden. Keep piling that up until the burden is severe, or is in the upper range of the Anderson balancing test. All that was just step 1.
Once the standard of review is established, the same facts come right back into play. Think of the Anderson test as a scale, or a teetter-totter. Step 1 decides whether the fulcrum is placed. Step 2 then weighs the voters' interests against the state interests. In Green Party, the state interests turned out to be conjectural, flimsy, and not supported by evidence. I think voter ID would turn out the same way.
So I have a vision of how a case like this could go. I do not have the resources or the talent to do such a case myself, and there doesn't seem to be much of a coordinated national effort to resist voter ID.
The Clinton campaign is doing some cases, the ACLU has been active in PA, the NAACP is going strong in North Carolina, I'm not sure who is behind the Texas case, but I certainly can't find anyone interested in revisiting Indiana.
But I think Green Party shows a way forward, and I wanted to blog about it before it slipped my mind.
I do have one criticism of the Green Party strategy. They rely solely on a federal constitutional claim. My guess is that Georgia also has a state constitution. If this holding had been backed up with an adequate and independent state claim, it would be insulated from Supreme Court review. I think this decision will hold up on appeal, and the temporary relief should be enough if there is no stay, but after cases like Burdick and Twin Cities, plaintiffs should never neglect their state constitutional claims.
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