Saturday, February 17, 2018
Hasen in Crawford:
In this atmosphere, it is important for this Court to articulate clear and fair rules to resolve election administration disputes that transcend partisan politics and restore voters’ faith in the integrity of the electoral process. Most lower courts considering such disputes turn to this Court’s opinion in Burdick v. Takushi, 504 U.S 428 (1992), or other cases in this line, which articulate a flexible balancing approach to judging the constitutionality of state election laws. But the Burdick standard has not been correctly applied by some lower courts to cabin judicial discretion. Those courts have focused on the first part of the test: pegging the level of scrutiny to the character and magnitude of the burden the law places on some 4 voters. It is an uncertain endeavor, see Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 208 (1999) (Thomas, J., concurring) (“I am not at all sure that a coherent distinction between severe and lesser burdens can be culled from” the Burdick line of cases), and one that has led to strongly divergent results in similar cases. Finding a severe burden, some courts strike down voter identification laws. Finding a lesser burden, some apply an exceedingly low level of scrutiny that does not require the state to provide any evidence its law is reasonably calculated to serve its interest, and uphold such laws.
I am please to see Rick reminding the court of Justice Thomas's ACLF concurrence. The case involved campaign speech, both disclosure and disclaimer provisions. It produced a plethora of opinions. All nine justices agreed that McIntyre controlled the disclaimer part of the case. They split on other issues, such as the disclosure aspect.
Justice Thomas analysed it as an election case, not just a speech case. He discusses the different levels of scrutiny under Norman v. Reed, Anderson and Burdick. [2 pm saturday. i hope to continue this. what i'm doing is going through the amicus briefs in Crawford to see how they influenced the opinion, or failed to.
Hasen's amicus argument was adopted by the plurality, which for Marx purposes acts like a majority here. The court, 3 of them, held that the Anderson balancing test is to be used, so Juges Posner and (was it sarah barker evans or another indianapolis division judge?)
were wrong to have use Burdick lax scrutiny.
At this point I think the case could have been remanded back to Judge Posner, but it wasn't; they reached the merits.
I think I already posted about congressman ellison's brief. It will take me a while to go through the whole stack. I am trying to at least collect a list of the counsel and amici, for a possible future mailing seeking representation for my Indiana voter ID case.
In this atmosphere, it is important for this Court to articulate clear and fair rules to resolve election administration disputes that transcend partisan politics and restore voters’ faith in the integrity of the electoral process. Most lower courts considering such disputes turn to this Court’s opinion in Burdick v. Takushi, 504 U.S 428 (1992), or other cases in this line, which articulate a flexible balancing approach to judging the constitutionality of state election laws. But the Burdick standard has not been correctly applied by some lower courts to cabin judicial discretion. Those courts have focused on the first part of the test: pegging the level of scrutiny to the character and magnitude of the burden the law places on some 4 voters. It is an uncertain endeavor, see Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 208 (1999) (Thomas, J., concurring) (“I am not at all sure that a coherent distinction between severe and lesser burdens can be culled from” the Burdick line of cases), and one that has led to strongly divergent results in similar cases. Finding a severe burden, some courts strike down voter identification laws. Finding a lesser burden, some apply an exceedingly low level of scrutiny that does not require the state to provide any evidence its law is reasonably calculated to serve its interest, and uphold such laws.
I am please to see Rick reminding the court of Justice Thomas's ACLF concurrence. The case involved campaign speech, both disclosure and disclaimer provisions. It produced a plethora of opinions. All nine justices agreed that McIntyre controlled the disclaimer part of the case. They split on other issues, such as the disclosure aspect.
Justice Thomas analysed it as an election case, not just a speech case. He discusses the different levels of scrutiny under Norman v. Reed, Anderson and Burdick. [2 pm saturday. i hope to continue this. what i'm doing is going through the amicus briefs in Crawford to see how they influenced the opinion, or failed to.
Hasen's amicus argument was adopted by the plurality, which for Marx purposes acts like a majority here. The court, 3 of them, held that the Anderson balancing test is to be used, so Juges Posner and (was it sarah barker evans or another indianapolis division judge?)
were wrong to have use Burdick lax scrutiny.
At this point I think the case could have been remanded back to Judge Posner, but it wasn't; they reached the merits.
I think I already posted about congressman ellison's brief. It will take me a while to go through the whole stack. I am trying to at least collect a list of the counsel and amici, for a possible future mailing seeking representation for my Indiana voter ID case.
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