Tuesday, March 08, 2016
In fact, the results in both cases were more nuanced. As reporter Linda Greenhouse explained in that New York Times article, the Supreme Court decision in Crawford was fractured. Although a majority of the Court rejected a full facial challenge to Indiana’s law on equal protection grounds, a plurality of the Court, as well as the dissenters, left open the possibility that Indiana’s law could be unconstitutional “as applied” to certain voters who faced special burdens in getting a voter identification law.
This is from a draft of a Hasen article I (updated) have now read. I was writing something similar to the above quote yesterday, in one more letter trying to get counsel for an as-applied challenge to voter ID in Indiana. The article mentions one of my previous failed as-appplied voter ID lawsuits, Stewart v Marion County. I believe Stewart failed because I couldn't find counsel, and was not competent to do it myself pro se. This doesn't mean that I wouldn't have lost or won on the merits, but I lost on procedure. There were numerous errors in the district court opinion, but I did not get in an appeal on time.
I now have a new opportunity to do an as-applied challenge.
I have what I think are the right plaintiffs, but I can't bring the case because I don't have a lawyer, or funds to hire a lawyer. I know better than to try to do it myself; I am not a good enough lawyer.
Yesterday I wrote:
Citizens United was an example of an as-applied challenge that resulted in sweeping relief, overturning not only parts of McConnell, but Austin itself. I think it's not out of the question for an as-applied challenge to Indiana's voter ID to do more than soften voter ID, but to strike it down.
The case I would like to bring offers a range of options for relief. Plaintiff X was denied a provisional ballot, he wouldn't show ID and was just told to leave. Can a person that happens to get damages, or does qualified immunity cover it, or do they have some other way of weaseling out?
Plaintiff H wouldn't show ID and was told she couldn't vote, but when she persisted she was given a provisional ballot, that was then not counted, although she went in person to the hearing and asked that her vote be counted.
https://www.youtube.com/watch?v=h_wlDDvoynU video of H asking them to count her vote.
A simple order directing them to count her vote would be only symbolic, but should make her a prevailing party for legal fee purposes.
Indiana's voter ID could be "softened" by changing the way provisional ballots are handled. Currently, a ballot without ID is irrebuttably presumed not countable, and thrown away. If the real concern is vote fraud, and not vote suppression, it would be enough to presume that provisional ballots are to be counted, unless there is some showing of individualized reasonable suspicion or probable cause or perhaps a preponderence of evidence that the vote should not be counted. That would accommodate both sides, those who care about voter fraud, and those who care about the fundamental right to vote. Questionable votes would be quarrantined long enough to conduct an investigation, leading to some votes being counted,and other voters referred for prosecution for voter fraud,and some ballots not being counted, even when prosecution is not feasible.
Other "softening" options would be for Indiana to stop charging for birth certificates, as Wisconsin did in Frank v Walker, at the Wisconsin Supreme Court. Indiana could also stop charging for driver's licenses, if they are going to be used for voter ID. My reading of the 24th Amendment is that it is unconstitutional to require for voting a document that a fee (i.e. tax) has been charged for, even if it also serves some other purposes, such as driving a car or buying booze. Eighty percent of Indiana voters do not qualify for "free" ID because they have already purchased driver's licenses. Alternatively Indiana could issue them "free" ID in addition to their driver's licenses, as a softening measure. Other softening options could include allowing a voter to use a thumbprint, or taking a photo at the polls as they do in New Hampshire.
The scare quotes around the "free" ID are because in order to get one, the voter needs, at a minimum, a birth certificate, which costs money, and also documents proving residency, such as a utility bill or lease or bank statement, which typically also involve money.
In my opinion whenever money is required to vote, this infringes on the 24th Amendment. The 24th prohibits charging any tax to vote. This is a very specific requirement, like the requirement that a president can only serve two terms. We don't say that a president can serve a third term when there is a compelling state interest in doing so. Harman v Forssenius didn't set out any standard of review, but what it did do was hold that the 24th not only prohibits making voting conditional on paying a tax (aka fee), it also prohibits undue barriers to voting. There's an as-yet unpublished article which claims that voter ID suppresses Democratic and black votes by some 2-4% more than GOP and white votes. If that holds up as good data, which I don't think has yet been established, that's pretty strong evidence of a First Amendment severe burden (triggering strict scrutiny), a 14th A. equal protection problem (a la Harper v WVa Board), and a barrier for 24th Amendment purposes. Justice Ginsberg, in her late night dissent, has indicated a willingness to address 24th Amendment issues. There are probably at least 4 votes for cert to do so. On an 8 person court, with two judges willing to look at the facts and claims of each case, those aren't bad odds. The second ever case on the 24th Amendment would be legally distinguishable from Crawford.
It is now March. Under Purcell, this issue should not reach the Court at the last minute, if relief were to be sought for 2016. Given adequate legal resources, it should be possible to seek a TRO in federal court, then the 7th circuit, then the Supreme Court, to place Indiana's voter ID on hold for the 2016 general election in time to give it due consideration. Indiana is not likely to be outcome determinative in the 2016 election. But a stay, if granted, would send a strong signal nationally that voter ID is problematic in ways not made clear by the headlines about Crawford v Marion County. Even a dissent like Posner's in Frank v Walker, or Ginsberg's, could generate headlines. I see such a case as having a political aspect as well as a legal one. But for some reason Hillary's not returning my calls. I'm not sure who to ask. Where's a Thurgood Marshall when you need one?
This is from a draft of a Hasen article I (updated) have now read. I was writing something similar to the above quote yesterday, in one more letter trying to get counsel for an as-applied challenge to voter ID in Indiana. The article mentions one of my previous failed as-appplied voter ID lawsuits, Stewart v Marion County. I believe Stewart failed because I couldn't find counsel, and was not competent to do it myself pro se. This doesn't mean that I wouldn't have lost or won on the merits, but I lost on procedure. There were numerous errors in the district court opinion, but I did not get in an appeal on time.
I now have a new opportunity to do an as-applied challenge.
I have what I think are the right plaintiffs, but I can't bring the case because I don't have a lawyer, or funds to hire a lawyer. I know better than to try to do it myself; I am not a good enough lawyer.
Yesterday I wrote:
Two friends of mine went to test voter ID in Indiana in the 2015 general election for mayor in Indianapolis. They did not show ID. One was given a provisional ballot which was not counted. The other was sent away from the polls, told to go to the DMV, get an ID,and come back. He did later come back with his ID and vote.
I believe they have standing to bring an as-applied challenge to Indiana's voter ID rules. They are willing plaintiffs, although they have no funds for such a project, being indigent student types. Crawford v Marion County was a facial pre-enforcement challenge that failed, but invited future as-applied challenges, which haven't materialized.
The analogy I use is McConnell v FEC was a failed facial challenge, but the BCRA opponents didnt give up, they came back with cases like WRTL I and II and then Citizens United. I believe the time is right, both at the 7th circuit which has twice split 5-5, and at the Supreme Court, for a followup case, and that this could be such a case.
What I don't have is a lawyer. I am a member of the bar but of very limited competency; I will not try to bring this case without the right legal team in place.
The case I would like to bring offers a range of options for relief. Plaintiff X was denied a provisional ballot, he wouldn't show ID and was just told to leave. Can a person that happens to get damages, or does qualified immunity cover it, or do they have some other way of weaseling out?
Plaintiff H wouldn't show ID and was told she couldn't vote, but when she persisted she was given a provisional ballot, that was then not counted, although she went in person to the hearing and asked that her vote be counted.
https://www.youtube.com/watch?v=h_wlDDvoynU video of H asking them to count her vote.
A simple order directing them to count her vote would be only symbolic, but should make her a prevailing party for legal fee purposes.
Indiana's voter ID could be "softened" by changing the way provisional ballots are handled. Currently, a ballot without ID is irrebuttably presumed not countable, and thrown away. If the real concern is vote fraud, and not vote suppression, it would be enough to presume that provisional ballots are to be counted, unless there is some showing of individualized reasonable suspicion or probable cause or perhaps a preponderence of evidence that the vote should not be counted. That would accommodate both sides, those who care about voter fraud, and those who care about the fundamental right to vote. Questionable votes would be quarrantined long enough to conduct an investigation, leading to some votes being counted,and other voters referred for prosecution for voter fraud,and some ballots not being counted, even when prosecution is not feasible.
Other "softening" options would be for Indiana to stop charging for birth certificates, as Wisconsin did in Frank v Walker, at the Wisconsin Supreme Court. Indiana could also stop charging for driver's licenses, if they are going to be used for voter ID. My reading of the 24th Amendment is that it is unconstitutional to require for voting a document that a fee (i.e. tax) has been charged for, even if it also serves some other purposes, such as driving a car or buying booze. Eighty percent of Indiana voters do not qualify for "free" ID because they have already purchased driver's licenses. Alternatively Indiana could issue them "free" ID in addition to their driver's licenses, as a softening measure. Other softening options could include allowing a voter to use a thumbprint, or taking a photo at the polls as they do in New Hampshire.
The scare quotes around the "free" ID are because in order to get one, the voter needs, at a minimum, a birth certificate, which costs money, and also documents proving residency, such as a utility bill or lease or bank statement, which typically also involve money.
In my opinion whenever money is required to vote, this infringes on the 24th Amendment. The 24th prohibits charging any tax to vote. This is a very specific requirement, like the requirement that a president can only serve two terms. We don't say that a president can serve a third term when there is a compelling state interest in doing so. Harman v Forssenius didn't set out any standard of review, but what it did do was hold that the 24th not only prohibits making voting conditional on paying a tax (aka fee), it also prohibits undue barriers to voting. There's an as-yet unpublished article which claims that voter ID suppresses Democratic and black votes by some 2-4% more than GOP and white votes. If that holds up as good data, which I don't think has yet been established, that's pretty strong evidence of a First Amendment severe burden (triggering strict scrutiny), a 14th A. equal protection problem (a la Harper v WVa Board), and a barrier for 24th Amendment purposes. Justice Ginsberg, in her late night dissent, has indicated a willingness to address 24th Amendment issues. There are probably at least 4 votes for cert to do so. On an 8 person court, with two judges willing to look at the facts and claims of each case, those aren't bad odds. The second ever case on the 24th Amendment would be legally distinguishable from Crawford.
It is now March. Under Purcell, this issue should not reach the Court at the last minute, if relief were to be sought for 2016. Given adequate legal resources, it should be possible to seek a TRO in federal court, then the 7th circuit, then the Supreme Court, to place Indiana's voter ID on hold for the 2016 general election in time to give it due consideration. Indiana is not likely to be outcome determinative in the 2016 election. But a stay, if granted, would send a strong signal nationally that voter ID is problematic in ways not made clear by the headlines about Crawford v Marion County. Even a dissent like Posner's in Frank v Walker, or Ginsberg's, could generate headlines. I see such a case as having a political aspect as well as a legal one. But for some reason Hillary's not returning my calls. I'm not sure who to ask. Where's a Thurgood Marshall when you need one?
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