Monday, September 05, 2016


Why Did Paul Clement Craft His NC Voting Brief as If Scalia Was Still Alive? A Theory

The above post makes interesting reading.
But I want to address an opposite idea.

In the various voter ID cases that have reached the Supreme Court, liberals have made liberal arguments and won the votes of the current 4 liberal judges, for a 4-4 stand-off.

This is better than the 6-3 loss in Crawford v Marion County, when Justice Stevens (generally considered liberal although he identified as a moderate Republican) joined and wrote the plurality opinion. And if Hillary wins or judge Garland gets confirmed the liberal faction may pick up a needed 5th vote. 

    But what I've been wondering, at least as an intellectual exercise, is how would one write a brief to try to convince Justice Thomas to vote against Voter ID? It's not an easy task. What I've seen come closest was the Rutherford Institute brief in Crawford. 
In the North Carolina case, the brief was written as though to the late Justice Scalia. 
This might be just politics. If the polls are right, majorities of both parties support voter ID and the 4-4 split reminds republicans that they need to vote for Trump so that Hillary doesn't get to appoint a new court. This briefing strategy worked to some extent - it picked up the votes of Roberts and Kennedy, who might have been in play.  

  A brief directed at Justice Thomas by supporters of the plaintiffs in voter ID cases might not convince Thomas, but might get the attention of either Roberts or Kennedy. If Stevens and Posner can change their minds, it is not beyond hope that one of these two might, given the right case and the right arguments. The N Carolina case may not be that vehicle, given the pro-defendant findings of fact by the district court. The Texas case might be the next opportunity.  

 Forget for a moment the adverse effects of voter ID on minorities and the poor. Let's look at how it burdens white middle class males. 

I see a few possible lines of attack. I'm not going to write such a brief. This is just a blog post.
So this is a barest of outlines.

The brandeis approach: Since 2008's Crawford, there has developed a wealth of empirical data showing that voter ID doesn't really accomplish anything. 

The Anderson test: In Crawford, the court announced that it would use the Anderson test, but did not remand to give plaintiffs a chance to argue their case under Anderson. Now they are forewarned, and the argument can proceed in two steps. [my W key is sticking, expect typos.]
First, you argue that voter ID imposes a substantial or severe burden, triggering either strict scrutiny under Norman v Reed, or heightened scrutiny under the upper areas of the Anderson balancing test.
Then, you make your case, under this heightened scrutiny.

Another line of argument, preserved in the Texas case, is that voter ID violates the 24th Amendment.
The district court found a 24th A violation, the 5th circuit reversed.
Justice Thomas claims to be influenced by the original intent of the founders. Usually he is talking about the revolutionary period, or sometimes the civil war era. Here, however, we would be looking at the intent of the Eisenhower Republican party in the 1950s, and the LBJ era when the amendment completed ratification. In his book about growing up with his grandfather in Georgia. Thomas remembers that period. Southern WII veterans, both blacks and poor white republicans, were coming home to find that they could not vote.  Democrats had their poll taxes paid for by the machines, Republicans, a minority party, had no such machine. The intent of the Amendment was to remove these kind of barriers. 

There's only one Supreme Court case on the 24th Amendment, Harman v Forssenius (1966).
It doesn't set out a standard of scrutiny, it just reaches its conclusion that the Amendment is not narrowly restricted to just poll taxes, but also reaches other barriers to full participation.

Georgia had a history of such barriers, as does Texas. When the Supreme Court denied a stay in the Texas case, Justice Ginsberg's 3-vote dissent mentioned the poll tax issue. Plaintiffs would do well to make sure the 24th A issue is not waived either in the questions presented or the briefing and argument.  

If Justice Thomas were to write about the original intent of the enactors of the 24th Amendment, it could be a landmark case. He might pick up the 4 liberal votes. I may be dreaming.

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