What the Supreme Court's Recent Decision Upholding Indiana's Voter ID Law Tells Us About the Court, Beyond the Area of Election Law

By VIKRAM DAVID AMAR
Thursday, May. 08, 2008

Last week's decision by the Supreme Court in Crawford v. Marion County Election Board was an important election law ruling. But it was also much more. In today's column, I will discuss at least three noteworthy aspects of the opinions handed down by the Justices that reveal significant features of the emerging Roberts Court.

What the Court Held and Its Importance for Political Contests

Let us start by recapping the case. Plaintiffs challenged a 2005 Indiana law enacted on completely partisan lines (with Republicans in favor, and Democrats against) that required citizens voting in person on election day to present government-issued photo identification, or else go through a cumbersome process to demonstrate their inability to obtain such ID. The Court turned back this challenge and upheld Indiana's authority to detect and deter voter fraud by such a law.

In upholding Indiana's law – considered the most stringent in the nation -- the Court effectively blessed the statutes of the few dozen or so other states that insist on some form of photo ID, and emboldened still more states to proceed down this path. Because, as the unsuccessful plaintiffs in Crawford suggested, most of the legitimate voters adversely affected by such laws would likely be on the more liberal end of the political spectrum, the ruling might systematically move the outcome in close contests across the country in the conservative direction.

But the ruling's significance transcends the realm of election law, and tells us some interesting things about the Roberts Court, which is now more than midway through its second full Term with the two newest Court members, Chief Justice John Roberts and Justice Samuel Alito, on board.

An Example of How Split and Fractured Decisions Persist on the Roberts Court

First, consider the lack of consensus among the Justices in Crawford. The Court split essentially into three camps of three Justices each, in effect a 3-3-3 line score. Justice Stevens, writing the "lead" opinion for himself, the Chief Justice, and Justice Kennedy, determined that plaintiffs simply had not demonstrated by the "evidence in the record" that enough individual would-be voters were in fact unfairly burdened by Indiana's ID requirements to scuttle the statute entirely. Justice Scalia, writing for himself and Justices Thomas and Alito, flanked the Stevens' opinion on one side, rejecting plaintiffs' challenge not just on the record in this case, but also as a more general matter, because the law as written didn't single any group out for unfavorable treatment but rather imposed its ID requirement on all would-be voters. And Justices Souter, Ginsburg and Breyer positioned themselves on the other side of Justice Stevens's attempted middle ground; these three Justices would have invalidated Indiana's law today – not at some potential time in the future, pending a stronger evidentiary showing -- because of the unfair burdens it seems to create.

At his confirmation hearings, Chief Justice Roberts expressed a desire to reduce the number of severely split and fractured Supreme Court rulings in important cases. Thus far, though, it doesn't seem his wish has come true. Crawford is not the only big case to come down this Term without an opinion that at least five Justices could join; the case upholding the most common "lethal injection" method of execution (Baze v. Rees) from three weeks ago also lacked a majority opinion, and could best be described as a 2-3-1-1-2 decision. (I won't go into the dizzying math underlying that case!)

Last Term was no better. For example, in the blockbuster cases involving race-based pupil assignment in public high schools (Parents Involved In Community Schools v. Seattle School Dist. No. 1), the Court broke down 1-3-1-4, and in Hein v. Freedom from Religion Foundation, Inc. (involving an Establishment Clause challenge to President Bush's faith-based initiative expenditures), the Court fractured 2-3-4. (It should also be noted that overall, 24 of last year's 73 cases were decided by a 5-4 vote margin, the highest percentage and the highest absolute number of 5-4 rulings in recent memory.)

Perhaps the difficulty on this Court in creating majority opinions – as distinguished from majority results – is simply a function of the differences between Justices like Anthony Kennedy, on one hand, and Antonin Scalia and Clarence Thomas, on the other; even when those three agree on an outcome to help create five votes for a result, there may be precious little Chief Justice Roberts or anyone else can do to make them agree on an opinion. In any event, fractured and fractious rulings seem here to stay.

The Roberts Court's Apparent Hostility to "Facial" Challenges

A second noteworthy feature of the Crawford case is the way in which Justice Stevens's opinion (for three Justices) attempted to finesse the possible illegality of Indiana's statute by merely saying the statute wasn't bad enough to be invalidated "on its face." By rejecting plaintiffs' facial challenge only, Justice Stevens, at least, tried to hold the door open for individual would-be voters to bring "as applied" challenges to get individual exemptions from the requirements of Indiana's law.

This is a move the Court also made in another elections case earlier this Term, Washington State Grange v. Washington State Republican Party (Indeed, close Court watchers might have predicted the same move in Crawford after Washington State Grange came down.) And, significantly, it's also the same move the Court made in last year's Gonzales v. Carhart abortion rights decision. There, Justice Kennedy's opinion for the Court rejected a facial challenge to Congress' ban on so-called partial birth abortions, but left open the possibility that individual women for whom the procedure could be shown to be good medicine could litigate to establish a right to a personal exemption from the federal ban.

It doesn't take a genius to see that relegating plaintiffs to "as applied" challenges in these kinds of cases doesn't really leave them with much. How likely is it that a woman desiring a late-term abortion is going to assemble evidence from her doctors that, for her, a "partial birth" abortion is medically appropriate, file suit and have her claim resolved by a judge all before the end of the pregnancy term, especially with everything else she has going on in her life?

Or, how likely is that a would-be voter in Indiana who can't afford the money it takes to get a birth certificate (which is necessary to get a government ID) or the money it takes to obtain transportation to the county seat (where she could explain her inability to get a birth certificate) is somehow going to have the money and knowledge to bring suit in federal court instead, to demonstrate the unfairness of the burdens created by the Indiana law as to her? And to do all that well in advance of the election in which she wants to vote?

In sum, for some claims and right-holders, it's facial challenge or bust. Thus, in turning away facial challenges in cases like these, the Court may seem to be leaving a path for as-applied challenges, but in practice, it may well be effectively foreclosing any meaningful challenge at all.

A Clue As to Justice Alito's Philosophy?

Finally, consider the significance of Justice Alito's decision to join Justice Scalia's opinion in Crawford. In his writing there, Justice Scalia did more than explain why in his view plaintiffs (even "as-applied" plaintiffs) should lose in their challenge to Indiana's law: He also reiterated a general philosophy of judicial review that animates much of his constitutional jurisprudence.

Specifically, Justice Scalia explained his view that ordinarily it is not the proper role of courts to assess the impact that generally-applicable laws have on particular individuals and grant personal exemptions for cases of hardship. Instead, Scalia generally believes, courts are to ask whether the statutes as written by the state legislatures themselves unfairly single out any person or group for disparate treatment. If not – if the statute is "generally applicable and nondiscriminatory" – then, Scalia contends, courts should defer to the legislature's weighing of the costs and benefits and the need for, or arguments against, individual exemptions. For Justice Scalia, a "case-by-case approach [to constitutional adjudication] naturally encourages constant litigation" and it embroils courts in value-based judgments that are properly the domain of the elected political branches.

Justice Scalia's opinion in Crawford was very reminiscent of (and indeed cited) his opinion for the Court in 1990 revolutionizing the law of free exercise of religion, Employment Div., Dept. of Human Resources of Oregon v. Smith. There, the Court held that "generally applicable" laws that happen to impose burdens on individuals' abilities to exercise their religions do not meaningfully implicate the First Amendment.

One must ask whether, by signing onto Justice Scalia's writing in Crawford, Justice Alito is signaling agreement with that way of understanding judicial review, in religion cases and/or in individual rights cases more generally. There will be plenty of time to fully assess Justice Alito's judicial philosophy, but cases in which he and Chief Justice Roberts diverge in important constitutional settings are at this early point in the Roberts Court noteworthy.


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.