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In a Brief, Unsigned New Opinion, The Supreme Court Sends the Wrong Signal on Voter ID and Voter Fraud


Monday, Nov. 06, 2006

The Supreme Court's first formal opinion of the current Term received little notice, but could signal a seismic--and ill-advised--shift in the constitutional law governing elections. In a brief unsigned opinion in Purcell v. Gonzalez, the Justices unanimously reversed the U.S. Court of Appeals for the Ninth Circuit, which had ordered Arizona state officials not to enforce new state-mandated identification requirements for voter registration and voting.

Although couched in the technical language of civil procedure, the decision is far more important for what it says about the right to vote. Crediting almost wholly speculative concerns about voter fraud, while discounting the nearly certain disenfranchisement of thousands of eligible voters, the ruling stands on its head a role the Supreme Court has admirably played for over four decades--guarantor of the democratic process.

Arizona's Proposition 200 and the Ill-Founded Fear of Individual Voter Fraud

In 2004, Arizona voters approved Proposition 200, which requires that persons registering to vote present proof of citizenship, and that voters present proof of identification when voting. The measure was adopted in response to fears that illegal immigrants were voting and obtaining government benefits.

The proponents of Proposition 200 argued that some form of official identification is required for participation in a wide range of activities, including cashing checks, enrolling children in Little League, and even renting videos. Isn't fraud prevention in voting, they asked, at least as important as fraud prevention in these other contexts?

The answer would surely be yes, if there were any evidence of substantial fraudulent voting. Yet there is scant such evidence--and for good reason: If you want to steal an election, there are much more effective means of doing so than sending individual bogus voters to the polls.

From the individual's perspective, waiting in line on Election Day to cast one improper vote, or even a dozen, has an infinitesimal chance of actually influencing the outcome of an election. It has long been recognized that the only rational reason to vote is a sense of civic duty, rather than the incredibly slim hope of casting the decisive ballot. How many people would vote illegally--and thereby risk imprisonment--out of a sense of civic duty alone?

To be sure, a well-organized campaign might try to induce thousands of ineligible people to cast ballots under false pretenses, perhaps with cash payments. But the number of people who would have to be bribed in this way to steal an election is so large that the plot could not be kept secret--and once revealed, it would be foiled.

The much more effective way to steal an election is to change the tally after the individual votes have been cast--either by adding ballots en masse (ballot box "stuffing"), or by reporting a false count. Concerns about the security of the new electronic voting machines in many states may or may not be justified in this election cycle, but they correctly target what has traditionally been the point in the process at which the most mischief can be accomplished.

The Harm That Identification Requirements Do

Even if there is no pressing need for identification requirements, as opposed to other measures to combat election fraud, one still might think that they are a good idea: Why not ensure that everyone who casts a ballot is in fact doing so lawfully?

The answer to this question was put succinctly in the statement of the League of Women Voters, which opposed Proposition 200 when it was put before the Arizona voters in 2004. After noting that, in ten years, there had been only ten reported cases of individual voter fraud in Arizona's two largest counties, the League noted that requiring "IDs at polling places will slow down the voting process, creating longer lines and reducing voter turnout as word of lengthy waits spreads. It will mean more provisional ballots, driving up the cost of elections and delaying the counting process, holding up election results."

And these voter suppression effects will occur even on the assumption that everyone who is eligible to vote has proper identification. Yet, as the Brennan Center notes, that assumption is not true: In fact, roughly ten percent of eligible citizens currently lack the identification required by laws like Arizona's, and will not obtain that identification to satisfy such laws. For some minority groups, the percentage is higher still.

Thus, the mere handful of hypothetical cases of individual voter fraud that Arizona's Proposition 200 prevents will come with the cost of preventing many thousands of eligible voters from casting ballots.

What the Supreme Court Said: The Ninth Circuit Applied the Wrong Standard of Review

Accordingly, Arizona residents, Indian tribes and community organizations sued to enjoin the enforcement of Proposition 200's identification requirements. They argued that it would violate their fundamental right to vote.

The district court denied the plaintiffs' request for a preliminary injunction, but the Ninth Circuit reversed that decision. However, state officials then sought and obtained an emergency ruling from the Supreme Court, which lifted the injunction. Hence, when Arizonans go to the polls tomorrow, Proposition 200 will be in force.

Why did the Supreme Court side with the state officials? In a technical sense, it didn't.

A district court's decision to deny a preliminary injunction can only be reversed by an appeals court if that decision constitutes an "abuse of discretion" or rests on a "clearly erroneous" understanding of the facts. These standards of review give considerable deference to the district court.

According to the Supreme Court, in substituting its own judgment for that of the district court--without providing any explanation for doing so--the Ninth Circuit did not apply the correct standard of review. And given the relatively undeveloped factual record, the Justices said they could not, themselves, find the sort of clear error in the district court's ruling that would warrant enjoining enforcement of Proposition 200.

In its brief opinion, the Supreme Court explained that it was not expressing a view on the ultimate merits of the case. Further proceedings could well result in a finding that Proposition 200 does violate the plaintiffs' constitutional rights, in which case it would be appropriate to enjoin its application in future elections.

Yet even with these important caveats, the Supreme Court's ruling is unsettling for several reasons.

A Constitutional Right to Avoid Feeling Disenfranchised?

The Court explained that while plaintiffs have a constitutional right to vote, the state has a compelling interest in the integrity of its election process. The opinion characterized the state interest in the following terms: "Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."

Those statements are troubling in at least three respects. First, in an opinion that takes the Ninth Circuit to task for failing to give adequate deference to the district court's evaluation of the factual record, the Supreme Court itself appears to credit the state's claims of voter fraud without any reference to the evidence presented to the district court.

Second, when the Supreme Court asserts that fears of voter fraud will lead other voters to feel disenfranchised, it once again does so without citing any supporting evidence from the record.

Third, the Supreme Court suggests that there is a compelling state interest in preventing feelings of disenfranchisement--even if such feelings are based on unrealistic fears, and even if they are unaccompanied by actual disenfranchisement. And worse, it claims that this interest in preventing feelings of disenfranchisement rises to a level sufficient to override the voting rights claims of people who will actually be disenfranchised by the measures taken in the name of avoiding such feelings.

Indeed, it is possible to read the Court's opinion as containing a fourth, and even more troubling, implication--namely, that these feelings of disenfranchisement on the part of voters worried about fraud are themselves infringements of the right to vote.

The basis for this implication is the Court's choice--just after it espouses its theory that feelings of disenfranchisement are a serious matter--to quote earlier cases involving actual disenfranchisement. The Court then remarks, "[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."

What if the Court ultimately runs with the position its opinion can be read to imply--the position that hypothetical feelings of disenfranchisement based on hypothetical worries about voter fraud somehow count as actual disenfranchisement? Then, in a contest between voters challenging an identification requirement and the state, the Supreme Court, or lower courts following its logic, may well find constitutional interests on both sides, and uphold the challenged requirements.

This Election, and Subsequent Ones: Why Hasn't There Been Much Progress?

In the wake of the 2000 Presidential election, officials at every level of government vowed to "fix" our electoral system. Yet the ensuing six years have not brought much progress. Why not?

The short answer is that Republicans and Democrats have very different ideas about what was, and is, wrong with our system of elections. Democrats thought the 2000 election showed the importance of making it easy for every eligible voter to cast a ballot and to have that ballot counted. Republicans, by contrast, tended to view the 2000 Florida recount as a Democratic effort to change the rules after the game was underway, and have accordingly sought stricter rules--like Arizona's Proposition 200.

Longstanding Supreme Court precedent pretty clearly favors the Democratic view (which sometimes benefits Republicans too). Since the early 1960s, the Court has afforded its highest level of protection to the right to vote--upholding government regulations that simply seek to structure the electoral process in an orderly way, but striking down those laws and practices that dilute individuals' or communities' votes.

Bush v. Gore nominally adhered to that pattern, but with a 180-degree twist. The Supreme Court halted the recount ordered by the Florida Supreme Court in the name of the individual right to vote, thus invoking count-every-vote-equally precedents. But, ironically, it did so in a case in which the effect of the ruling was to stop counting votes.

Purcell makes the same move--this time, unanimously. In characterizing the state interest in preventing fraud as an individual interest in avoiding feelings of disenfranchisement, the Court invokes the count-every-vote-equally rhetoric of the 1960s but once again does so in the service of a rule of law, here Arizona's Proposition 200, that will almost surely prevent the counting of many more lawful votes than unlawful ones. This is not progress.

Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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