By Ruth Colker

The Brennan Center for Justice recently published a comprehensive report entitled “The Machinery of Democracy: Voting System Security, Accessibility, Disability, and Cost” which should be required reading for all election officials. It can help them comply with the requirements of the Help America Vote Act of 2002, 42 U.S.C. � 154981(a)(3)(A), that new voting systems, purchased with federal funds by January 2007, should allow voters with disabilities to complete and cast their ballots “in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.” The Brennan Center Report reminds us that each polling place must have “at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities,” id. � 15481(a)(3)(B). Further, the Federal Elections Commission (FEC) set forth a list of technical standards and recommendations in 2002 called the “Voluntary Systems Standards” which specified what is meant by “accessible voting systems” for direct recording electronic (“DRE”) voting systems. Finally, the Election Assistance Commission (EAC) published further guidelines in 2005 for all voting systems, not simply DRE’s. The Brennan Center Report goes much further in considering what kinds of voting systems are likely to provide genuine accessibility to a range of individuals with disabilities. In theory, many of the new voting systems that will be in place by January 2007 do create the possibility of much more accessible voting than we have ever seen before. In practice, it is not clear whether voting boards will fully take advantage of these opportunities as they procure new technology. I will focus on two challenges posed by the Brennan Report which have not been highlighted in previous discussions of voters with disabilities. First, we often tend to think of individuals with disabilities as a discrete group of people who readily self-identify as such. Yet an individual who has trouble reading small print or lacks manual dexterity or has hands that shake when she tries to touch objects may not think of herself as “disabled.” She would not necessarily enter the polling place expecting to need to use anything other than the regular voting equipment. The Brennan Report recognized this problem and inquired whether a particular voting technology allows a voter to “choose and change accessibility and language options without the assistance of a poll worker.” Computer-based systems fared best on this measure. Some of these systems allow voters to change visual and audio settings while they are casting their ballots. Others require poll workers to change the settings if the voter wants to make a change during the voting process but, in theory, allow a change to be made. Yet other systems allow the visual features to be changed during the voting process but do not allow the audio settings to be changed. The key advantage to many of these computer-based systems is that the voter doesn’t necessarily have to self-identify to obtain an accessible machine. All the machines can be set to have flexible settings which will serve most individuals with disabilities. Nonetheless, computer-based systems are far from perfect for many individuals with disabilities. They often require significant fine motor skills. Although they can be equipped with devices that allow voters to use alternative methods of recording their votes, these methods are not usually available universally. A voter would have to request these devices, and they may not be available at a particular polling station. In some cases, voters would have to bring their own equipment to supplement the equipment made available at the polling places. Those kinds of problems impede voting accessibility. Although computer-based systems are not perfect, they do offer significant flexibility for accessibility. Paper-based systems offer much less flexibility. They also present significant privacy problems. Voters can typically request ballots with large type face but, if few voters make that request, then the privacy of the ballot is lessened. Voters who begin to vote, thinking their eyesight is adequate, also have significant problems with paper ballots if they start having visual problems while voting. It is usually difficult to seek to void a ballot and begin anew with a larger typeface. Paper ballots also present other problems. Audio versions of paper ballots can be made available but those present their own set of difficulties and the voter still has to find a way to record her preference confidentially. Finally, paper ballots present hurdles for those who cannot record their vote manually. Again, any solutions tend to compromise confidentiality. Second, the Brennan Report reminds us that we need to consider the needs of voters with multiple disabilities. Some voters need both audio and visual accessibility, and have limited fine motor skills. They may also need portable voting machines that can be brought to the street curb for voting from a car. Hence, paper-based systems that offer audio recordings may still not serve the population that additionally has fine motor impairments. The audio recording devices often require significant fine motor skills. Again, computer-based systems can offer more flexibility if they allow the voter to access several of its accessible features. These two insights may seem minor but neither can be found in the recommendations offered by the FEC in 2002 or the EAC in 2005. If our goal is to expand voting participation by individuals with disabilities, we need to be mindful of those who may not self-identify as disabled as well as those with multiple disabilities. Prior recommendations have thought of voters as self-identifying as either blind or deaf or manually impaired. The Brennan Report can help us reach voters more broadly by better understanding the range of challenges they may pose for election officials.

By Terri L. Enns

Today, October 3, marks the first day of absentee voting in Ohio. While Ohio’s new “no excuse” rules were in effect for the primary elections in May, the much higher turnout expected for the current general election season will be the first large-scale test of the impact of these new laws on the election system. With the Governor’s office changing, several critical Congressional seats up for grabs, and the election of the entire Ohio House of Representatives as well as one half of the state Senate, turnout will no doubt be significantly higher than for the primary.

Permitting any eligible voter to vote by absentee ballot without requiring the voter to provide a reason has the potential to impact Ohio’s elections process in a variety of ways. I anticipate changes in at least three main areas: campaign strategies, voter behavior, and election administration.

Changes in campaign strategies are already apparent. Rather than being able to wait until several weeks before the election, campaigns must appeal to an unknown percentage of the voters who will be casting their votes from now until Election Day. For example, in the Sunday edition of the Columbus Dispatch, supporters of one of the ballot initiatives printed a full page ad which included a special box urging “If you vote Absentee, vote YES on Issue 3.” Full page ads have not ordinarily appeared this early in previous elections, especially not with a jingle targeted specifically at absentee voters. In the past, campaigns could predict both the percentage and the types of voters who would be using absentee ballots, based on the list of reasons that made a voter eligible to vote by absentee ballot. For the current election, and most likely several elections into the future, the campaigns will have to guess about who their early ads should target. Campaigns will have to learn which types of advertisement are most effective for persuading which types of voters, those who vote by absentee ballot and those who go to the polls on Election Day.

Get Out The Vote strategies will surely be impacted by the ability of any eligible voter to vote by absentee ballot. An example of this is today’s planned rally at The Ohio State University with U.S. Senator John Kerry and others, with shuttles scheduled to take students to the Franklin County Board of Elections to request and cast absentee ballots. In order to plan how properly to deploy their Election Day ground troops, campaigns will have to analyze which demographic groups are likely early voters and which are likely to want to go to the polls.

In addition to the campaigns needing to adjust for the new environment, voters may also adjust their behavior. Those voters who do not feel they will be swayed by late-breaking information may be the group who votes by absentee ballot. Since such voters will not have the same information as those who vote on Election Day, one group of absentee voters may be those who are more committed to a particular party or candidate. Difficulties arise for such persons in situations such as the resignation late last week of Representative Mark Foley in Florida. An analogous situation in Ohio involving a candidate withdrawal after absentee ballots are returned could find those persons most committed to a particular candidate having their votes voided and not counted.

Another group of voters who may turn to absentee ballots are those with a distrust of electronic voting. The Governor of Maryland, following a disastrous primary in some Maryland precincts, has suggested that Maryland voters should vote by absentee ballot due to his concerns about the security of electronic voting. Absentee ballots provide a paper vote, which some voters feel is more secure than even an electronic system with a voter verified paper audit trail. Ohio counts absentee ballots by optical scan machines, so even absentee voters will have to trust electronic machines for some stage of their voting process.

A third group of people who may choose to vote by absentee ballot are those who wish to have Election Day free for election-related activities. While persons working as poll workers were among those previously eligible to vote by absentee ballot, the new system frees up Election Day for participants to assist with GOTV efforts, conduct exit polls, and engage in other more partisan activities that previously would need to be interrupted by going to the polls, which requires time both going to one’s home precinct and then waiting in a line.

Election administration itself is impacted in significant ways by the expansion of absentee voting. Absentee ballots require various additional steps by both voters and election workers. For example, Ohio law now requires identification in order to vote, and that rule includes absentee voters. Absentee voters must now provide ID both at the time they request the ballot and when they return the completed ballot, both of which must also be checked by election workers. Election workers must note on the poll list that a voter requested an absentee ballot and must check not only the ballot but also the identification envelope for proper execution. Some of these additional requirements hold the potential for errors by voters, especially the identification requirements, which are new. Some of the errors in marking the ballots would not occur at the polling place, as electronic machines indicate some types of errors to voters before they complete the act of voting. Combined with the possibilities of errors by election workers, the increased number of absentee ballots risks an increased number of persons whose votes will not be counted.

Each absentee ballot requires treatment by hand at several steps of the counting process. Signatures need to be compared, envelopes opened, ballots counted, and poll books marked. Add that to the increased number of provisional ballots expected because of Ohio’s plethora of circumstances for which a provisional ballot is required, and election results may be delayed. As of this writing, some county boards of elections have indicated that they are seeking to clarify with the Secretary of State’s offices whether any of the steps required for verifying and counting absentee ballots may be completed before Election Day.

Administrative challenges caused by long lines at polling places during the 2004 presidential election provided the main impetus for passing the no excuse absentee rule. Obviously, the more voters who vote by absentee ballot, the fewer people who will be at the polls on Election Day. By reducing the number of people voting on Election Day, the increased use of absentee ballots has the potential to decrease errors by both voters and poll workers at the polling place, as the pressures of long lines increase the likelihood of errors.

The expansion of the number of voters eligible to vote by absentee ballots holds both promise and peril. Until the November election is completely counted, we will not know the full impact, both positive and negative, of this wider use of absentee ballots. Some claim that the process will raise costs and delay counts, as we wait for all absentee ballots to be read by optical scan machines after elections officials complete all of the signature and identification verification. Others, such as Friday’s editorial in the Columbus Dispatch, argue that it will increase participation by being more convenient. Still others, such as Maryland’s Governor Ehrlich, believe that absentee ballots are more reliable than electronic voting. In any case, this November will provide a first look at how the elections process in Ohio is impacted by the new, more open rules for absentee voting.

One of the intangible impacts of the increased use of absentee balloting is the spreading of voting from a single day to over a month. I have concerns about a subtle drop in the commitment to voting when there is no single day when all members of the community are encouraged to gather and cast their votes in person. Our current system makes this difficult and inconvenient in a number of ways, many of which would be alleviated, at least somewhat, by making Election Day a holiday. From the increased availability of persons to work the polls to the decreased need for people to vote before or after work, a holiday on Election Day could counter some of the issues that led to the expansion of absentee voting. It remains to be seen if broader use of absentee ballots ultimately reduces the percentage of people who vote due to the lack of a single, clear day when we all express our democratic choices, or if the convenience of casting ballots on our own schedule and in our homes increases voter participation.

By Donald B. Tobin

I was an appellate attorney in the Tax Division at the United States Department of Justice. The Tax Division would represent the IRS in any enforcement proceeding regarding the All Saints Church summons. I left the Department of Justice in 2001 and was never involved in any proceeding regarding All Saints Church.

All Saints Church has recently indicated that it will refuse to respond to a summons by the IRS seeking documents related to possible violations of All Saints Church’s tax-exempt status. The IRS is investigating whether All Saints improperly intervened in the Presidential campaign by giving a sermon critical of President Bush. Churches, like other 501(c)(3) tax-exempt organizations, are required to refrain from participating or intervening in an election on behalf of a candidate.

All Saints claims that the IRS’s actions are improper and amount to a violation of All Saints Church’s First Amendment rights. What is going on here? Why is a church refusing to comply with an IRS summons?

As part of a compliance initiative designed to reign in improper attempts by tax-exempt 501(c)(3) organizations to intervene in candidate campaigns, the IRS opened an investigation into activities by All Saints Church. The IRS expressed concern regarding a sermon given at All Saints Church that criticized President Bush on the eve of the 2004 election. As part of the investigation, the IRS did what it usually does: It requested documents from the taxpayer. According to press reports, All Saints Church refused to comply. The IRS then issued a summons asking for the information. Once again, this is common procedure when a taxpayer refuses to comply with the request. All Saints has now decided not to comply with the summons. This also often occurs. While I personally think this is a strategic mistake here, it is a method by which the taxpayer can contest the IRS’s action.

The IRS will now likely file a motion in court to compel All Saints Church to comply, and All Saints Church will have an opportunity to respond. Neither the IRS’s actions, nor All Saints Church’s refusal to comply is very remarkable.

The problem for All Saints, however, is that enforcement of the summons is not a decision on the merits. Instead the summons is enforced if the IRS’s actions comply with a four-part test set out in United States v. Powell, 379 U.S. 48 (1964). Under the Powell test, the IRS must show that 1) it has a legitimate purpose in requesting the information, 2) the inquiry is relevant to that purpose, 3) the information is not in the Commissioner’s possession, and 4) the proper administrative steps have been taken with regard to the issuance of the summons.

In my view, the IRS’s summons clearly meets the 4-part test. The IRS has a legitimate interest in ensuring that 501(c)(3) organizations comply with the statutory requirements. Its request is relevant for that purpose. The Commissioner does not have the relevant information, and the Commissioner appears to have complied with the statutory requirements. (I concede that All Saints Church could try to raise its First Amendment claim at the summons stage. As discussed later, I think the First Amendment argument is the weaker of All Saints Church’s two arguments).

The summons from the IRS also appears to be perfectly reasonable (the summons is available on All Saints Church’s web site). It requests information that would be both hurtful and helpful to the church’s case. It appears the IRS is doing what it is supposed to be doing – gathering information to determine whether further action is warranted.

All Saints argues that the summons is overly broad and burdensome, but these claims seem a little far-fetched. For example, All Saints claims that since it prays for President Bush every Sunday, the request for all communication that references candidates is overly broad and burdensome. The summons, however, specifically excludes general prayers for national leaders. We should not be demonizing the process or the IRS here. The IRS is enforcing the law. The IRS should be provided with the necessary information to proceed so that it can make an informed decision whether it believes All Saints Church violated its (c)(3) status. Who knows, the information provided by All Saints Church might encourage the IRS to close the case.

There is a second question, and the more important one, which is whether All Saints Church has actually violated the Code. All Saints first argues that the IRS’s actions are a violation of its First Amendment rights. As I have argued elsewhere, All Saints Church is just wrong in this regard. (See Donald B. Tobin, Political Campaigning by Churches and Charities: Hazardous for 501(c)(3)s; Dangerous for Democracy, forthcoming Georgetown Law Journal). All Saints Church receives significant benefits from its tax-exempt status, and it does not have a right to that status. It can choose to intervene in an election all it wants, but it cannot do so and maintain its 501(c)(3) status.

All Saints Church’s alternative argument, and in my view the better one, is that it did nothing wrong, and that the sermon did not violate the political campaign ban. That is presumably what the IRS is trying to determine by issuance of the summons. Section 501(c)(3) provides that a 501(c)(3) organization may not participate in or intervene in a campaign on behalf of a candidate for public office. The question for the IRS is whether the sermon given by All Saints violated that provision. This is where I think All Saints should wage its fight. (I concede that my strategy might be different if I thought the summons would produce very damaging information, but there appears to be no indication that All Saint’s is worried about this at all.) It is an open question whether the sermon crossed the line, and All Saints Church’s best option is to insist on its innocence and file suit if the IRS actually revokes its status. Whether All Saints crossed the line or not, however, will have to wait for another weekly comment.

By Daniel P. Tokaji

The 2006 election season has already been a busy one in the courts. There have been lawsuits over voter ID requirements in four states, with courts in two of them issuing injunctions against the enforcement of newly enacted laws and one denying an injunction just last week. Another prominent subject of litigation is voter registration, with state requirements for nonpartisan registration efforts and state list maintenance practices being challenged in several states. There continues to be considerable judicial attention to voting technology as well, based on claims that existing equipment is vulnerable to fraud or that it fails adequately to accommodate people with disabilities.

The question of what role the courts, especially the federal courts, should play in the processes of democracy is a complex and hotly contested one. This comment argues that litigation is an essential means by which to protect voting rights, particularly those of minority groups, from being squelched by an overreaching majority. If brought soon enough, it may prevent problems from occurring and prevent post-election fights like we saw in Florida’s 2000 election. Even when pre-election litigation is unsuccessful, it can play a vital role in clarifying the rules of the game for election officials, poll workers, and most importantly voters.

Looking Back to 2004

To understand the constructive role that pre-election litigation can play, it is helpful to look back to the 2004 election season, in which there was a great deal of litigation in the weeks and months leading up to the election. That was particularly true in Ohio. Among the subjects that were the subjects of litigation before the 2004 election season were voting equipment, voter registration, provisional voting, ID requirements, and challenges to voter eligibility. There were also lawsuits filed on or after Election Day seeking to remedy the long lines at the polls, to compel a recount, and to contest the election results.

On the whole, the lawsuits that were brought in Ohio’s 2004 election played a constructive role. The litigation over provisional ballots (Sandusky County Democratic Party v. Blackwell) is a prime example. The Democratic Party and the League of Women Voters brought suit weeks before the November 2004 election, to challenge a rule issued by the Secretary of State’s office providing that provisional ballots would not be counted if cast in the wrong precinct. The rule also required poll workers to deny a provisional ballot to a voter, based on their on-the-spot determination of whether the voter was eligible to vote in the precinct. The district court found the states’ rule to be in conflict with the Help America Vote Act of 2002 (“HAVA”) on both counts. The matter ultimately went up to the Sixth Circuit, which reversed the district court on the issue of whether wrong-precinct ballots should be counted but affirmed on voters’ right to cast a provisional ballot, if they affirm that they are eligible and registered, even though a poll worker thinks otherwise.

Even though plaintiffs lost on the claim that received the most attention – that wrong-precinct provisional ballots should be counted – the lawsuit still had a beneficial effect. It clarified that voters had a right to receive and cast a provisional ballot if they affirm their eligibility, regardless of whether poll workers agreed. In addition, the publicity surrounding the rulings made the rules of the game clear to everyone, in advance of the election. This assured consistency, at least with respect to wrong-precinct ballots, in the counting of provisional votes by local election officials. It also made clear to voters that they had to be sure of going to the right polling place on Election Day, if they wanted their votes to be counted.

While there’s no way of measuring with precision the educative function served by this court order, the high percentage of provisional ballots counted in Ohio’s 2004 election (77.9% according to the Secretary of State’s web site) suggests that there was some useful effect. Having court rulings on the rules for counting wrong-precinct provisional ballots, in Ohio and several other states, also had the effect of preempting post-election fights over this issue.

The Role of the Federal Courts

Though often overlooked, an important part of the Sixth Circuit’s opinion in Sandusky County Democratic Party is its conclusion that voters have a right to bring suit in federal court, if state or local election officials violate rights protected by HAVA. Under a civil rights statute enacted during Reconstruction, people whose federal rights are violated under color of state law have a right to bring suit in federal court. This statute, codified in Title 42, section 1983 of the U.S. Code, is commonly known as “Section 1983.” At the time of its enactment, it was designed to ensure that newly freed slaves would have access to the federal courts, where their rights were violated by state and local authorities.

Although we are a long way from Reconstruction, the purposes behind Section 1983 remain vital today, particularly when it comes to the voting process. Access to the federal courts is essential, to provide a relatively neutral and independent forum for resolving election disputes. While no one would pretend that federal judges are uniformly without partisan bias, they are more insulated from political pressures than other institutions of American government. That includes the state courts, in which judges are subject to election and retention elections – and in some states, judges run for election as the Republican or Democratic party candidate. Under these circumstances, it is unreasonable to expect that state judges will make decisions without regard to partisan consequences.

By contrast, federal judges have life tenure, which gives them a measure of independence and insulation from partisan politics that state courts don’t always have. The independence that federal courts enjoy is especially vital when it comes to the protection of minority rights, including but not limited to racial minorities.

This Year’s Voting Rights Docket

A number of pending cases concern election rules enacted by a state legislative majority which arguably infringe on minority voting rights. Foremost among them are the current battles over state laws that would restrict access to the ballot, to the disadvantage of certain groups.

Perhaps the most significant subject of litigation thus far has been the voter identification requirements which several states have enacted since 2004. In Georgia, the legislature passed a law requiring voters to present government-issued photo ID to have their votes counted. Common Cause and other citizen groups challenged the law, on the ground that it amounted to an unconstitutional poll tax, and a federal court agreed (Common Cause/Georgia v. Billups). The Georgia legislature enacted a modified version of the law earlier this year, which has been enjoined by both the federal court and a state court. A similar photo ID law was stopped by a state court in Missouri. On the other hand, courts have thus far allowed a photo ID law in Indiana and a non-photo ID law in Arizona to go into effect.

The issues presented by the photo ID cases are especially appropriate for judicial resolution. Plaintiffs in these cases allege that the laws passed by a majority of the state legislature have a disproportionate effect on certain groups of voters, including racial minorities, elderly voters, and poor voters. It is in such cases, where the voting rights of a minority are placed at risk by the majority, that judicial intervention is most appropriate.

Similar concerns attend the litigation over voter registration, now going on in a number of states. Federal courts in Florida and Ohio have enjoined rules restricting voter registration drives by nonpartisan organizations such as the League of Women Voters. There has also been a federal court order in the State of Washington, discussed here, concerning a requirement that voters be “matched” against Social Security or driver’s license records before being registered (Washington Association of Churches v. Reed).

Voting technology also remains a hot litigation topic, as has been the case since 2001. Concerns regarding the security of electronic voting have previously prompted lawsuits in California, Maryland, and Florida, among other states. Another electronic voting lawsuit is pending in Colorado, according to this report, and a recent report on the security of Diebold voting machines by Princeton researchers will likely fuel these concerns. Meanwhile, disability rights groups in California have brought suit to challenge the accessibility of that state’s voting equipment, arguing that it fails to provide the private and independent voting that HAVA mandated. There are serious risks in attempting to rush new equipment into use within weeks of an election. On the other hand, these cases could result in better procedures that will promote election integrity or improve disability access.

There’s no telling how these lawsuits will ultimately be resolved. The key point is that pre-election litigation can play an essential role in protecting voting rights, particularly where a majority acts to limit or impede participation by a minority of citizens. If such lawsuits are brought and resolved sufficiently in advance of the election, they may ensure that the fundamental right to vote of all citizens is respected.

Even where pre-election litigation is unsuccessful, it may clarify the rules of play for all participants, including both voters and those responsible for making the election run smoothly. It is far better to resolve election disputes – especially those implicating the right to equal participation – well before Election Day than to clean up the mess afterwards.

By Christopher S. Elmendorf
Professor of Law
University of California at Davis

Editor’s Note: This week we are pleased to offer the views of a Guest Commentator in this column. The author is a professor of law at the University of California at Davis. The argument of this Weekly Comment is elaborated in an article he is currently drafting. He welcomes feedback by email at cselmendorf@ucdavis.edu.

“Voter identification” has become a central bone of contention for election reformers. Bills to impose new identification requirements on would-be voters have recently been enacted in Arizona, Georgia, Indiana, Missouri, and Ohio; related measures are pending elsewhere. Proponents insist these safeguards are needed to deter fraud and rebuild public confidence in voting systems. Critics say the new ID laws are thinly veiled attempts to reduce the number of votes cast by low-income, minority, and elderly voters, all major Democratic Party constituencies. So goes the debate in the political arena, at least.

When the battle shifts to the courts, the debate re-centers on the degree to which the challenged ID requirements burden the right to vote. Last summer, federal district courts pursuing this inquiry reached opposite conclusions about quite similar voter ID statutes in Georgia and Indiana. This Weekly Comment proposes that the courts might handle such cases more successfully with a doctrinal framework that more closely tracks the argumentation in the political arena. In these cases, the politics do belong in court.

Remembering Carrington

Overlooked so far in the legal tussle about whether the Georgia and Indiana ID provisions have the effect of “unduly burdening” the right to vote is an even more foundational precept: legislators may not enact voting regulations for the purpose of diminishing electoral participation by citizens possessed of views the lawmakers disfavor.

Back in 1965, when the Supreme Court’s right-to-vote jurisprudence was still in its infancy, the Court held in Carrington v. Rash that “[f]encing out from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” And if it’s unconstitutional for the state categorically to deny the franchise to a sector of the population because of its views, then purposefully hindering electoral participation by that sector should also be verboten. Yet Carrington received nary a mention in the Georgia and Indiana opinions, nor was the case cited in the plaintiffs’ briefs.

Perhaps this should not come as a surprise, however, for Carrington occupies an odd position in the Supreme Court’s pantheon of voting rights opinions. Carrington’s “fencing out” language is regularly invoked to explain why heightened means-ends scrutiny of laws that substantially burden the right to vote is warranted. Because such laws may well have been enacted for an exclusionary purpose, the thinking goes, it is incumbent on the judiciary to establish whether they are reasonably well tailored and advance important state interests. But only rarely do judicial decisions actually turn on a finding that the challenged law was or was not enacted for the purpose of fencing out voters because of their political views.

As best I can tell, there is not a single appellate-court opinion that provides guidance on how to adjudicate claims that an election-administration statute is unconstitutional because intended to fence out. The voter ID litigation could and should occasion the development of a suitable framework.

On Scrutiny Levels and Threshold Findings: Implementing Carrington

Courts faced with new fencing-out claims would do well to heed a central lesson of the Supreme Court’s undue-burden jurisprudence: that lines must be drawn, however imperfectly, between important and unimportant categories of voting rights cases, and heightened scrutiny reserved for the former. Thus, under Burdick v. Takushi, courts presented with an undue burden claim must first determine whether the challenged law significantly or minimally burdens voting rights. Substantially burdensome laws receive heightened scrutiny, whereas laws whose burden is slight will be sustained if supported by a conceivable rational basis. The Supreme Court explained that this bifurcated framework for judicial review was necessary because “[t]here must be substantial regulation of elections . . . if some sort of order, rather than chaos, is to accompany the democratic processes,” notwithstanding that such electoral regulations “will invariably impose some burden upon voters.”

Burdick was correct that if courts are not to usurp the whole of election law, heightened scrutiny must be reserved for a limited subset of cases somehow identified via threshold inquiries. Whether Burdick’s burden threshold applies to Carrington-grounded claims of exclusionary intent is, however, an open question. Certainly it would be feasible to extend Burdick in this direction. Courts confronted with a Carrington claim would decline to inquire into non-admitted purposes (or, often equivalently, means-ends fit) absent a finding of significant burden. One who favored this approach could point to loosely supportive dicta from the Supreme Court. Yet for reasons I shall get to momentarily, I believe that Carrington merits a distinctive threshold inquiry of its own.

In lieu of the Burdick inquiry, courts adjudicating Carrington claims should choose scrutiny levels based on whether certain readily verifiable factors raise what I shall call a reasonable suspicion that the challenged law was enacted for fencing-out purposes. For example, this suspicion might be deemed to arise if (1) the voting restriction was enacted substantially along partisan lines; (2) there is some evidence that the law will disproportionately inconvenience citizens who are statistically more likely to support the opposition party; and (3) the law is a permanent measure, rather than a time-limited experiment with provisions for independent evaluation of its impacts on electoral participation by the ostensibly disadvantaged classes.

Like Burdick’s step-one inquiry concerning the extent of burdens, this threshold probe for reasonable suspicion would determine whether the challenged statute will receive heightened scrutiny for means-ends fit. If the suspicion obtains, the law’s defenders would have to establish that it is reasonably tailored to advance a substantial state interest. If the threshold inquiry comes out negative, the law would be sustained so long as there is a conceivable rational basis for it.

There are other ways of formulating a Carrington-specific test for separating important from unimportant voting rights claims, and it is not my purpose here to say just how the test ought to be cast. Instead, I’d like to briefly address why a Carrington companion to Burdick’s burden inquiry is called for. The argument has two parts, one theoretical, the other decidedly pragmatic.

Why Not Stick with Burdick?

At the level of theory, a distinctive threshold test for fencing-out claims is warranted because courts that focus exclusively on the “size” of the burden are sure to miss a significant class of harmful laws. Constitutional law should be concerned not only with what putatively exclusionary voting legislation does, but also with what it communicates, what it leads citizens to believe about the integrity of the political process. Laws that reasonable onlookers regard as attempts to prevent disfavored political factions from registering their political preferences work a special harm to public confidence in government. Courts might perform a real service to democracy by striking down egregiously intended (even if rather ineffectual) exclusionary legislation and, perhaps as importantly, by legitimating contentious bills that some citizens otherwise would regard as mischievously intended.

The second rationale for a Carrington companion to Burdick is that sometimes it is impractical to establish the true magnitude of a statute’s burden on the right to vote until well after the burden has been incurred — even if the burden is severe. Where this is so, reasonable suspicion (of fencing-out intent) could serve as a workable proxy for significant burden. After all, sophisticated politicians with devious intentions are not likely to fumble their choice of means.

The voter identification cases nicely illustrate the point. Professor Spencer Overton argues convincingly in a forthcoming article that the burden of a voter identification law should be understood not in terms of whether the ID requirement makes voting unreasonably difficult from the point of view of some hypothetical “average” citizen, but rather in terms of the law’s impact on the ability of actual groups of like-minded citizens to register their collective voice at the ballot box. As the Supreme Court itself has said, laws that selectively reduce electoral participation by politically identifiable segments of the population should generally be deemed more burdensome, within the Burdick framework, than laws that reduce participation symmetrically.

Accepting this as a starting point, consider the challenge of figuring out whether the Georgia or Indiana photo-ID laws will substantially burden the right to vote. When these laws were enacted, neither state had records of the percentage of registered voters in politically salient demographic categories who possessed permissible forms of identification. But even if such records did exist, and even if they showed, as the plaintiffs hypothesized, that poor persons, the elderly, and African-Americans were systematically overrepresented among the ranks of the ID-less, that still wouldn’t tell a great deal about the burden. As a legal matter, the magnitude of the burden is a function of whether group members disproportionately lacking in photo identification successfully adjust, in the aggregate, to the law’s requirements, either by voting absentee (neither Georgia nor Indiana extended the photo-ID requirement to absentee voting), or by obtaining and bringing to the polls an authorized form of identification. Adaptation or its absence may not be discernable until a number of elections have been held under the new regime, and even then ascertaining the burden may depend on large, costly longitudinal surveys that track electoral participation rates and reasons among target and control groups.

In the Georgia litigation, the federal district judge justified heightened scrutiny by speculating (initially on the basis of a few dozen affidavits from registered voters) that “many” poor, elderly, and African-American voters would have difficulty voting under the new regime. In Indiana, the judge sneered at the plaintiffs’ arguments from affidavits and “common sense,” insisting on reliable quantitative evidence of the law’s supposed deterrent effect on electoral participation by vulnerable groups. A more satisfactory answer might have been that while the ultimate burden of these laws remains unknown, they nonetheless warrant heightened scrutiny because the circumstances of their enactment raise a reasonable suspicion of fencing-out intent.

By Daniel P. Tokaji

In the last week of June, the Supreme Court decided two cases that have significant implications for the law of American democracy. The first one, League of United Latin American Citizens v. Perry (“LULAC“), involved Texas’ mid-decade congressional redistricting plan backed by Representative Tom DeLay. The other case, Hamdan v. Rumsfeld, was a challenge to the authority of the military commissions formed to try prisoners detained in Guantanamo Bay, Cuba. Although these two opinions obviously address very different subjects, they have something important in common.

There is always a danger in writing about Supreme Court cases too soon after they have been decided. Our own views about how such important cases should have been decided may detract from our ability to see what the Court has actually said. At the risk of falling prey to this risk, I think that both Hamdan and LULAC represent a serious and promising effort to grapple with the proper role of the federal judiciary in a democratic society. Both cases address the role that federal courts ought to play in protecting those who cannot adequately protect their interests through ordinary political channels. Although this is a longstanding preoccupation of the federal courts, what is distinctive about these cases is that this protection comes not through constitutional adjudication but through statutory interpretation. In this sense, I take the opinions in these two cases to represent a good week for the Justice John Paul Stevens and, more importantly, a good week for democracy.

I start with the LULAC opinion, in which the Supreme Court held that the Texas legislature had violated Section 2 of the Voting Rights Act, by redrawing a Laredo-area district (District 23) so as to prevent Latinos from electing candidates of their choice. At first glance, it might seem odd to give Justice Stevens credit. After all, the opinion was authored by Justice Kennedy. Moreover, Justice Stevens dissented from the LULAC Court’s holding on the issue upon which most commentators had focused before oral argument: whether Texas’ redistricting should be struck down as an unconstitutional partisan gerrymander. Justice Stevens believed that the Texas plan should be deemed unconstitutional because it “violate[d] the sovereign’s duty to govern impartially,” but a majority of the Court disagreed, while leaving the constitutional standard to govern partisan gerrymandering claims unclear.

While Justice Stevens’ position on the partisan gerrymandering claim did not carry the day, an examination of the transcript from the oral argument suggests that he played an important role in developing the theory upon which the Court relied, in holding that the newly drawn District 23 violated the Voting Rights Act. Section 2 of that Act broadly prohibits election practices that result in the denial or abridgment of the vote on account of race. The statute itself is imprecise in what it prohibits, but the Supreme Court’s 1986 decision in Thornburgh v. Gingles required minority voters to show three things to challenge a redistricting plan: 1) that they’re sufficiently large and geographically compact, 2) that the racial minority is politically cohesive, and 3) that there is sufficient bloc voting by whites which ordinarily defeats minority-preferred candidates.

During the argument, Justice Stevens asked Texas’ attorney, “if there were a violation in district 23 of section 2, could it be cured by creating a district … farther to the east,” referring to a new majority-Latino district that the state had created (District 25). That district combined two groups of Latinos who were geographically dispersed and culturally distinct. In asking this question, Justice Stevens specifically referred to the constitutional limitations that the Court placed on noncompact majority-minority districts in Shaw v. Hunt (“Shaw II“). In response, Texas’ lawyer acknowledged that this would be impermissible if the two districts were in “wholly different areas” of the state.

The Court’s opinion with respect to District 23 embraces a more elaborate version of the theory that Justice Stevens floated at oral argument. The analysis consists of three parts.

1. The Court applied the three Gingles factors to District 23 and found that they were satisfied. It concluded that the redrawn District 23 deprived Laredo-area Latinos of an “opportunity districts,” by preventing them from electing a congressional representative of their choice.

2. The Court addressed the question whether Texas’ creation of a new majority-Latino district elsewhere in the state could “make up” for the harm that Latinos suffered through the redrawing of District 23. In concluding that it could not, the Court specifically referred to Shaw II. In what is among the most significant parts of its opinion, LULAC holds that a state is allowed “to use one majority-minority district to compensate for the absence of another only when the racial group in each area had a §2 right and both could not be accommodated.” The Court went to conclude that the Latinos in the newly created majority-minority district (District 25), did not have a Section 2 right because of the geographic dispersion and cultural dissimilarities between the two groups of Latinos in this district.

3. The Court concluded that, looking at the whole of the state, the “totality of circumstances” showed a violation of Section 2 of the Voting Rights Act. Prominent among the circumstances the Court thought relevant were the Texas legislature’s efforts to protect the incumbent in District 23, despite his unpopularity among Latinos, and the creation of the noncompact District 25 which combined two communities of Latinos with little in common.

This is only a cursory summary of the Court’s holding on the Section 2 issue, which my colleague Ned Foley has described and defended at greater length in this comment.

The key point that I wish to make is not just that the majority adopted Justice Stevens’ theory. It is that the Court’s opinion incorporates constitutional law’s traditional preoccupation with the protection of minorities who cannot adequately protect their interests through ordinary political channels. This idea is hardly new. It can be traced to the Federalist Papers and finds its best-known exposition appears in the famous footnote 4 of United States v. Carolene Products (1938), in which the Supreme Court suggested that heightened judicial scrutiny might be appropriate where there is a curtailment of the political processes that can ordinarily be relied upon to protect minorities. In Texas, the Republicans’ complete control over the redistrict process left Laredo’s Latinos unable to protect their interests through the ordinary political process.

What’s intriguing about LULAC is that it imports Carolene Products‘ concern with cases where the political process breaks down, from the realm of constitutional adjudication to that of statutory interpretation. In Carolene Products, the Court suggested that more searching constitutional scrutiny of state legislation might be warranted where a minority can’t adequately protect its interests through the ordinary political process. In LULAC, the Court silently incorporates this insight into its interpretation of Section 2, construing that statute to proscribe an entrenched majority’s effort to protect its own power by locking out a relatively powerless minority group. To be sure, the Court rejected the broader entrenchment claim that the Democratic Party had advanced, which challenged the constitutionality of Texas’s entire plan rather than just one district within that plan. Still, its Section 2 holding represents a worthy effort to incorporate a traditional concern of constitutional adjudication into the interpretation of a civil rights statute.

A similar effort is apparent in the Supreme Court’s opinion in Hamdan v. Rumsfeld, probably the most important decision of the term. The influence of Justice Stevens is self-evident in this case, as he wrote the majority opinion. Its implications for democratic governance may be less obvious, but they at least as significant as those in LULAC.

If there were ever a group of people that lacks the power to protect its interests through ordinary political channels, it is the prisoners being detained at Guantanamo Bay. A Yemeni national, Mr. Hamdan is not a U.S. citizen. Like the others detained at Guantanamo, he does not vote. And he is the quintessential disfavored minority, alleged to be working with al Qaeda in hostile activities directed at the United States government. A Carolene Products-type analysis might thus suggest that courts should direct searching constitutional scrutiny of the treatment of Guantanamo detainees, given their inability to protect their interests through the political branches of government.

Although that is not the route that the Court took in Hamdan, its reasoning ultimately serves a similar objective. This is difficult to see, given that the Court’s opinion delves so deeply into seemingly arcane interpretive questions – so much so that it is easy to miss the forest through the trees. By stepping back a bit, however, it is evident that in Hamdan, as in LULAC, the Court expressly engages in statutory interpretation to protect minority interests in a manner that is more commonly associated with constitutional adjudication.

This is evident in several portions of Justice Stevens’ opinion. Writing for the Court, he expressly finds it unnecessary to reach Hamdan’s argument that Congress unconstitutionally suspended the write of habeas corpus, since “[o]rdinary principles of statutory construction suffice to rebut the Government’s theory.” Specifically, the opinion narrowly interprets a 2005 law passed by Congress, concluding that it did not mean to deprive federal courts of jurisdiction over pending cases like Hamdan’s. The Court goes on to conclude that no prior act of Congress gave the President the authority to convene military commissions in the manner that has been done with those formed to try the Guantanamo detainees. The commissions, as the Court explained, denied prisoners certain “fundamental protections” such as “the right to be present.” But again, the Court’s reasoning does not rest on the Constitution, but instead on its interpretation of the Uniform Code of Military Justice, which the Court interprets to restrict the President’s power to prescribe procedures for military commissions. Reading between the lines, the Court appears to be suggesting that basic procedural rights ought not be denied, without the clear assent of both political branches, the Congress and the President.

Though it is easy to get lost in the details, the key point here is that the Court relies on a nuanced construction of statutes to protect the rights of a disfavored minority. For Justice Stevens and, at least for the moment, a majority of the Roberts Court, statutory construction is more than a mechanical exercise. It is an effort to enforce basic democratic values that might be lost without judicial intervention. The implications of the Court’s holding for American democracy are most clearly voiced in Justice Breyer’s brief concurrence (which, curiously, is joined by all the justices in the majority except Justice Stevens):

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthen’s the Nation’s ability to determine – through democratic means – how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

In taking this approach, the opinion in Hamdan, like that in LULAC, could turn out to be a harbinger of the Roberts Court’s approach to democracy. If these cases are any indication, the Court will likely be reluctant to intervene on constitutional grounds, even in cases where there is arguably a breakdown of the democratic processes that can ordinarily be relied upon to protect minorities. On the other hand, it is possible that the Court will resort to statutory interpretation – as it did in both Hamdan and LULAC – to achieve a similar end. Only time will tell, of course, but these two opinions are promising in their suggestion of a more thoughtful approach to statutory interpretation, one that takes into consideration the vital role of the federal judiciary in promoting fair democratic governance.

By Dale A. Oesterle

I wrote earlier on this site about the growing use of “wedge” citizen initiatives by political parties in the United States. Political parties are attempting to put on state ballots initiatives that energize their voting base. The strategy is most effect in non-presidential race years.

I also noted that the strategy is risky. Here is the story of one that backfired.

In Ohio a conservative candidate for the governor’s office and the current Secretary of State, Kenneth Blackwell, ran against a moderate and the current State Attorney General, Jim Petro. Blackwell, as part of his campaign, organized a citizen initiative for constitutional limits on state and local government taxing and spending. It is known as the Tax and Expenditure Limitation (or TEL for short).

On the eve of the primary, which Blackwell won by 14 percent of the vote, Blackwell supporters presented formally the initiative to the Secretary of State, Blackwell, with enough signatures to put the proposition on the ballet. The Secretary of State’s office implemented the administrative procedures necessary to certify the number of signatures and put the language on the ballot for the next election.

After the primary victory, opposition to TEL formed immediately from numerous interest groups across the state. State universities to local firefighters argued that TEL would have an undue and unintended burden on their operations. Democrats argued that TEL was poorly drafted and would lock-up the state’s finances. They were right.

Drafters of the TEL amendment, a very complex package of rules, had overlooked a basic ambiguity in the description of the voting majority needed to limit taxing and spending limits. Was a “majority of electors” a majority of those registered (entitled?) to vote or a majority of those actually voting? The former standard would require vote totals of one-hundred percent of those voting if only fifty percent of registered voter went to the polls. The drafters were also careless and over-inclusive in the definition of government units that would fall under the limits.

Both drafting problems could be easily fixed by language changes but, and this is the risk, the language of the initiative was locked in cement once the signatures were gathered. Amendments were not possible; the errors could not be fixed.

The Republicans now had a real problem on their hands. Blackwell had to support TEL in the governor’s race against a popular Democratic candidate and TEL was galvanizing the opposition. Universities and firefighters are respected in this state.

Republicans, in control of both house of the state legislature, crafted a clever retreat. The legislature would pass a watered down version of TEL, correcting its errors, and the proponents of the citizen initiatives would withdraw TEL. Blackwell would claim credit for the new legislation.

There is one problem. The proponents, who had submitted their petitions to the Secretary of State, had no express power to withdraw the initiative. The legislature’s solution was an amendment to the statute implementing the constitutional initiative right. The legislature passed language that enables a majority of the members of a committee nominated to represent the signatories of an initiative petition to withdraw a petition anytime before the Secretary of State “certifies” the language to local election boards, sixty days before the date of election.

At issue is whether the new statute, particularly as applied retroactively to a pending initiative petition, is constitutional. What are the constitutional rights of signatories who signed the petition with the understanding that, once presented to the Secretary of State with the requisite number of valid signatures, the initiative language would appear on the ballot? Does the legislative act unduly infringe on the constitutional initiative procedure? Were I on the bench, I would hold that it does.

There is also the political opening for the Democrats. Blackwell had argued the need for a constitutional amendment, binding the legislature, and yet now appeared content with a statute that the legislature could itself repeal later. Was his victory a disguised retreat?

In any event, TEL demonstrates the risks of using the wedge initiative. A political candidate drafts the initiative language when a primary victory is sought and with enthusiasm for appealing to the extreme elements of the party and then must run on the initiative in the general election when he/she must appeal to moderates for an election victory.

The initiative language is inflexible and a candidate cannot “soften the message” for the general election.