Saturday, December 09, 2017
I happen to be looking at some older files. In 2006 I wrote,
http://joellpalmer.blogspot.com/2006_02_01_archive.html
This is from the brief that Judge Posner refused to allow to be filed.
I quote it here because it's interesting in light of the Supreme Court's 2008 ruling in Crawford,
where they applied the Anderson test.
The panel erred in applying lax review. 8
Courts in Georgia and Missouri have blocked these measures as likely violating a number of federal and state constitutional guarantees of free and open elections, including federal claims of First Amendment, Poll Tax, and Equal Protection. Lake v. Purdue, No. CV119207 (Fulton Cty., Ga. July 7, 2006), Common Cause/Georgia v. Billup, 439 F.Supp. 2d 1294, 1345-50 (N.D. Ga. 2006), Weinshenk v Missouri, 203 S.W.3d 201, 212-15 (Mo. 2006).
These cases applied strict or exacting scrutiny, since core fundamental rights are involved, there is a risk of legislative self-dealing, and the poll tax amendment specifically forbids these practices. The most recent case, ACLU of New Mexico v. Santillanes, No. CIV 05-1136 ,(D. N.Mex. 2/12/2007), http://moritzlaw.osu.edu/electionlaw/litigation/documents/Chavez-OrdergrantingSJinpart.pdf, applied the 4 factor Anderson standard and concluded that the city’s voter ID regulations were unconstitutional.
Because the panel’s decision creates a split in authority over the constitutionality of the voter suppression program, if the Seventh Circuit does not address the matter, Supreme Court review may be needed. The panel’s decision may not reflect the opinions and arguments of the rest of the circuit. The split is between the panel of the 7th circuit, and every other court in the country which has reached the merits of voter ID.
The panel itself was sharply divided.
The public perception may be that the panel’s decision was capricious and arbitrary, based more on the personal preferences of the particular panel, than in formal rules of law. A well reasoned opinion from the full circuit, whether upholding or reversing the decision, would help to combat this perception.
The panel erred in applying deferential and lax review.
The Supreme Court has outlined a framework for analysis of election procedure claims, in which a court first measures the degree of the burden, and then applies either lax review under Burdick v Takushi, 504 U.S. 428 (1992), intermediate review under Anderson v Celebrezze, 460 U.S. 780 (1983), or strict scrutiny under Norman v Reed, 502 U.S. 279 (1992).
[A Court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Anderson, 460 U.S. 780, 790 (1983).
There are a few variants, such as the “exacting scrutiny” standard of Buckley v Valeo, 424 U.S. 1 (1976), or the balancing of competing interests tests of Burson v Freeman, 504 U.S. 191 (1992). Unfortunately, the Supreme Court has not set out any workable method of knowing when a burden is severe, so the genre remains fraught with indeterminacy. See Majors v Abell III’s discussion of McConnell v. FEC, 540 U.S. 93 (2003). “Reluctant, without clearer guidance from the Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional.” Majors v Abell III, 361 F.3d 349 (7th Cir.2004).
In the interests of brevity and avoiding duplication, this brief will not address the problems with the analysis under the lax scrutiny Burdick standard. Given the initial fatal error in choosing a standard of review, the conclusion of upholding the program is understandable.
=
Crawford: The dissenting judge, viewing the justification for the law as “hollow”—more precisely as “a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic”—would have applied a stricter standard, something he described as “close to ‘strict scrutiny light.’ ” Id., at 954, 956 (opinion of Evans, J.). In his view, the “law imposes an undue burden on a recognizable segment of potential eligible voters” and therefore violates their rights under the First and Fourteenth Amendments to the Constitution. Id., at 956–957.
https://supreme.justia.com/cases/federal/us/553/181/opinion.html
and in the notes: Contrary to Justice Scalia’s suggestion, see post, at 2 (opinion concurring in judgment), our approach remains faithful to Anderson and Burdick. The Burdick opinion was explicit in its endorsement and adherence to Anderson, see 504 U. S., at 434, and repeatedly cited Anderson, see 504 U. S., at 436, n. 5, 440, n. 9, 441. To be sure, Burdick rejected the argument that strict scrutiny applies to all laws imposing a burden on the right to vote; but in its place, the Court applied the “ ‘flexible standard’ ” set forth in Anderson. Burdick surely did not create a novel “deferential ‘important regulatory interests’ standard.” See post, at 1–2.
http://joellpalmer.blogspot.com/2006_02_01_archive.html
This is from the brief that Judge Posner refused to allow to be filed.
I quote it here because it's interesting in light of the Supreme Court's 2008 ruling in Crawford,
where they applied the Anderson test.
The panel erred in applying lax review. 8
Courts in Georgia and Missouri have blocked these measures as likely violating a number of federal and state constitutional guarantees of free and open elections, including federal claims of First Amendment, Poll Tax, and Equal Protection. Lake v. Purdue, No. CV119207 (Fulton Cty., Ga. July 7, 2006), Common Cause/Georgia v. Billup, 439 F.Supp. 2d 1294, 1345-50 (N.D. Ga. 2006), Weinshenk v Missouri, 203 S.W.3d 201, 212-15 (Mo. 2006).
These cases applied strict or exacting scrutiny, since core fundamental rights are involved, there is a risk of legislative self-dealing, and the poll tax amendment specifically forbids these practices. The most recent case, ACLU of New Mexico v. Santillanes, No. CIV 05-1136 ,(D. N.Mex. 2/12/2007), http://moritzlaw.osu.edu/electionlaw/litigation/documents/Chavez-OrdergrantingSJinpart.pdf, applied the 4 factor Anderson standard and concluded that the city’s voter ID regulations were unconstitutional.
Because the panel’s decision creates a split in authority over the constitutionality of the voter suppression program, if the Seventh Circuit does not address the matter, Supreme Court review may be needed. The panel’s decision may not reflect the opinions and arguments of the rest of the circuit. The split is between the panel of the 7th circuit, and every other court in the country which has reached the merits of voter ID.
The panel itself was sharply divided.
The public perception may be that the panel’s decision was capricious and arbitrary, based more on the personal preferences of the particular panel, than in formal rules of law. A well reasoned opinion from the full circuit, whether upholding or reversing the decision, would help to combat this perception.
The panel erred in applying deferential and lax review.
The Supreme Court has outlined a framework for analysis of election procedure claims, in which a court first measures the degree of the burden, and then applies either lax review under Burdick v Takushi, 504 U.S. 428 (1992), intermediate review under Anderson v Celebrezze, 460 U.S. 780 (1983), or strict scrutiny under Norman v Reed, 502 U.S. 279 (1992).
[A Court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Anderson, 460 U.S. 780, 790 (1983).
There are a few variants, such as the “exacting scrutiny” standard of Buckley v Valeo, 424 U.S. 1 (1976), or the balancing of competing interests tests of Burson v Freeman, 504 U.S. 191 (1992). Unfortunately, the Supreme Court has not set out any workable method of knowing when a burden is severe, so the genre remains fraught with indeterminacy. See Majors v Abell III’s discussion of McConnell v. FEC, 540 U.S. 93 (2003). “Reluctant, without clearer guidance from the Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional.” Majors v Abell III, 361 F.3d 349 (7th Cir.2004).
In the interests of brevity and avoiding duplication, this brief will not address the problems with the analysis under the lax scrutiny Burdick standard. Given the initial fatal error in choosing a standard of review, the conclusion of upholding the program is understandable.
=
Crawford: The dissenting judge, viewing the justification for the law as “hollow”—more precisely as “a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic”—would have applied a stricter standard, something he described as “close to ‘strict scrutiny light.’ ” Id., at 954, 956 (opinion of Evans, J.). In his view, the “law imposes an undue burden on a recognizable segment of potential eligible voters” and therefore violates their rights under the First and Fourteenth Amendments to the Constitution. Id., at 956–957.
In Anderson v. Celebrezze, 460 U. S. 780 (1983), however, we confirmed the general rule that “evenhanded restrictions that protect the integrity and reliability of the electoral process itself” are not invidious and satisfy the standard set forth in Harper. 460 U. S., at 788, n. 9. Rather than applying any “litmus test” that would neatly separate valid from invalid restrictions, we concluded that a court must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the “hard judgment” that our adversary system demands.
In later election cases we have followed Anderson’s balancing approach. Thus, in Norman v. Reed, 502 U. S. 279, 288–289 (1992), after identifying the burden Illinois imposed on a political party’s access to the ballot, we “called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation,” and concluded that the “severe restriction” was not justified by a narrowly drawn state interest of compelling importance. Later, in Burdick v. Takushi, 504 U. S. 428 (1992), we applied Anderson’s standard for “ ‘reasonable, nondiscriminatory restrictions,’ ” 504 U. S., at 434, and upheld Hawaii’s prohibition on write-in voting despite the fact that it prevented a significant number of “voters from participating in Hawaii elections in a meaningful manner.” Id., at 443 (Kennedy, J., dissenting). We reaffirmed Anderson’s requirement that a court evaluating a constitutional challenge to an election regulation weigh the asserted injury to the right to vote against the “ ‘precise interests put forward by the State as justifications for the burden imposed by its rule.’ ” 504 U. S., at 434 (quoting Anderson, 460 U. S., at 789).[Footnote 8]
In neither Norman nor Burdick did we identify any litmus test for measuring the severity of a burden that a state law imposes on a political party, an individual voter, or a discrete class of voters.
https://supreme.justia.com/cases/federal/us/553/181/opinion.html
and in the notes: Contrary to Justice Scalia’s suggestion, see post, at 2 (opinion concurring in judgment), our approach remains faithful to Anderson and Burdick. The Burdick opinion was explicit in its endorsement and adherence to Anderson, see 504 U. S., at 434, and repeatedly cited Anderson, see 504 U. S., at 436, n. 5, 440, n. 9, 441. To be sure, Burdick rejected the argument that strict scrutiny applies to all laws imposing a burden on the right to vote; but in its place, the Court applied the “ ‘flexible standard’ ” set forth in Anderson. Burdick surely did not create a novel “deferential ‘important regulatory interests’ standard.” See post, at 1–2.
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