About Face: The Roberts Court Sets the Stage for Shrinking Voting Rights, Putting Poor and Minority Voters Especially In Danger

By RICK L. HASEN
Wednesday, Mar. 26, 2008

Last Tuesday, the Supreme Court press focused on oral arguments over the constitutionality of the DC gun ban. But the same day the Court also issued a barely-noticed, but quite significant election law opinion. The opinion, unfortunately, could lay the groundwork for upholding a host of draconian laws making it harder for some people to vote.

Granted, the result in Washington State Grange v. Washington State Republican Party is a good one: Voters will have more choice over the kinds of primaries they want in their states. However, the reasoning by which the Court got to that result is very troubling. Indeed, it suggests that Chief Justice Roberts may be following a long-term strategy that could have terrible implications for voting rights, especially for poor and minority voters.

How the Court Has Traditionally Put A Thumb on the Scale in Favor of the States in Voting Rights Controversies

Historically, the most important challenges to voting laws have been "facial" ones. That is, these challenges contend that an election law is unconstitutional "on its face," over the broad range of its many applications, and thus can't be applied against anyone.

For example, in 1966, the Supreme Court struck down Virginia's poll tax, which required individuals to pay $1.50 in order to vote. The Court in Harper v. Virginia Board of Elections said that paying a fee had no rational relation to a voter's qualifications to vote, and it struck the law down, on its face, for everyone, not just as applied to very poor voters. Importantly, the Court did not say the law was okay to apply to most voters--who could afford the $1.50--leaving only those voters who were too poor to pay the poll tax to bring a follow-on suit claiming the law was unconstitutional as applied to them.

In the years since Harper, the Court has continued to entertain a variety of facial challenges to election laws. In such case, it has often applied a "sliding scale" balancing test. (That test is now known as the Burdick test from a case where a voter---I kid you not--claimed a constitutional right to cast a write-in vote for Donald Duck in a Hawaii election). Under the Burdick test, the Court balanced voters' rights against state interests with respect to a particular election law. The more severe the burden on voters' rights, the greater the state's interests had to be."Reasonable non-discriminatory" election laws, the Court said, are to be upheld; however, those imposing severe burdens are to be struck down unless the state had a compelling interest in the law.

As interpreted by the Court, and by lower courts, the Burdick standard has left room for lots of argument about how severe burdens are on voters, and how strong a state's interest in a particular election law are. Overall, however, it's fair to say that the Burdick standard has constituted a thumb on the scales favoring the states. Part of the reason for this is the Court's holding that "reasonable nondiscriminatory" laws pass muster under a very lenient standard of review. But the Court made it even easier by the states in a 1986 case, Munro v. Socialist Workers Party, in which the Court said that a state did not always have to prove its interests in an election law were real, rather than imagined. In that case, the Court said that the State of Washington could justify a law that made it hard for minor parties to qualify for a space on the general election ballot based on its unsubstantiated fear that if too many candidates appeared on the ballot, voter confusion would result.

Last Week's Supreme Court Decision: A Second Thumb on the Scale in Favor of States, and Against Voters

In last week's Washington State Grange case, also arising out of a Washington State primary, the Court has now put a second thumb on the scale, again on the side of the state.

Washington State Grange was follow-on litigation to a 2000 case, California Democratic Party v. Jones, which struck down California's blanket primary system: under this system, all voters, regardless of party affiliation, could vote in any party primary for any candidate. The Court held that this system violated the right of political parties to exclude from voting those who did not affiliate with the party. The Jones Court said that if a state wanted to allow voters to vote for all candidates in a primary, it needed to set up a nonpartisan primary, like Louisiana's.

In the wake of Jones, Washington State abandoned its own--now unconstitutional--blanket primary. Washington State voters then adopted by initiative a nonpartisan primary, but with a twist: Candidates could list their "party preferences" (e.g., Democrat or Republican) on the ballot. The parties claimed that this system, too, violated their rights, because it would cause voters to think that these candidates were in fact running in party primaries and were accepted by the parties as members.

In Washington State Grange, the Supreme Court not only rejected that argument; it also launched into an extended discussion of how facial challenges to election laws are disfavored because they short-circuit the democratic process. It pointed out that the new Washington State law had not yet gone into effect, and therefore, judges could only speculate as to whether the ballot would actually confuse voters into thinking there was some party endorsement by listing the candidate's party preferences. When the system is actually put into place, the Court said, the parties may bring an as-applied challenge, claiming the law is unconstitutional as to them. To succeed, the parties will have to prove actual voter confusion.

The Upshot: An Unfair Double Standard Leaves Voters At a Disadvantage

Note the double standard now created by the combination of Supreme Court cases: If a state tries to justify its election law, it can do so by merely positing - not proving -- the existence of voter confusion pr another interest. However, if voters (or groups) want to challenge a law, then they need to come forward with actual evidence of confusion or another burden. For them to posit the risk of confusion is not enough.

This kind of rule is going to make it much harder for those who seek to protect voting rights to succeed in court. And that may precisely be the point of the new decision. At oral argument in Washington State Grange, Chief Justice Roberts directed some very pointed questions to the state, suggesting that he believed that the Washington State system was unconstitutionally stealing the parties' "brand names." He asked the state's lawyer "why you would give greater protection to the makers of products than you give to people in the political process."

In the end, Roberts joined in the opinion of the Court, and added a concurring opinion comparing a party endorsement by a candidate to an innocuous statement by a candidate that he liked Campbell's Soup. This prompted Justice Scalia to respond in dissent that "if we must speak in terms of soup, Washington's law is like a law that encourages Oscar the Grouch (Sesame Street's famed bad-taste resident of a garbage can) to state a 'preference' for Campbell's at every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial locations.

Justice Roberts's Possible Voting Rights End Game

What changed between oral argument and the time of decision, from Roberts's perspective? Possibly, he was just playing devil's advocate at oral argument. But more likely, the Chief may be looking further ahead, to one of the most controversial cases of the term: Crawford v. Marion County, the Indiana voter identification law case. (Full disclosure: I filed a pro bono brief supporting those challenging the law.)

The rule the Court has laid down now may not bode well for the Indiana voter ID law challengers. That rule, as described above, lets the state posit an interest in preserving voter confidence or preventing voter fraud without actually proving it---but requires challengers of the law to produce actual voters who are too poor to afford the documents needed to secure identification and to be burdened by the law's other requirements. That second part of the standard - the need to provide voters too poor to afford the documents and who are too burdened by the law's other requirements -- could doom the challenge to the Indiana voter ID law, which may be the result Chief Justice Roberts thinks is the right one. Now, rather than be accused of making up a new standard against facial challenges for purposes of deciding the hot-button Indiana voter ID case, the Chief can now point back to the Washington State case as precedent, and state that he is merely applying precedent.

If the Court upholds the Indiana voter ID law on these grounds, we can expect a host of other partisan election laws to be put in place, and for those laws no longer to be subject to facial challenges. That means, in turn, that the laws will have to be in effect for a while before they are challenged, and that they will cause damage in the interim, at a minimum. With two thumbs on the scale on the side of the state, poor and minority voters will hardly have a chance.


Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles, writes the Election Law Blog.