The untimely death of Bush v. Gore

Stanford Law Review

Volumn 60, Issue 1, 2007, Pages 1-44

  Hasen, Richard L ^a  

^a LOYOLA LAW SCHOOL   (United States)

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EID: 37849042539     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (288)

1. 531 U.S. 98 (2000).
2. See, e.g., Steven J. Mulroy, Lemonade from Lemons: Can Advocates Convert Bush v. Gore into a Vehicle for Reform?, 9 GEO. J. ON POVERTY L. & POL'Y 357 (2002);
3. Samuel lssacharoff, Op-Ed, The Court's Legacy for Voting Rights, N.Y. TIMES, Dec. 14, 2000, at A39.
4. Constitutional law scholar Cass R. Sunstein advanced a similar argument in The Equal Chance to Have One's Vote Count, 21 L. & PHIL. 121, 133 (2002).
5. See also HOWARD GILLMAN, THE VOTES THAT COUNTED: HOW THE COURT DECIDED THE 2000 PRESIDENTIAL ELECTION 198 (2001) ("[T]hose who remain resentful [about Bush v. Gore] are the most likely to feel tempted into supporting the equal protection rationale of the decision. . . . [in] a classic example of making political lemonade out of lemons . . . .").
6. For a summary of the relevant literature and critiques of the case, see Richard L. Hasen, A Critical Guide to Bush v. Gore Scholarship, 7 ANN. REV. POL. SCI. 297 (2004).
7. See Richard L. Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 FLA. ST. U. L. REV. 377, 378 (2001) (characterizing Bush v. Gore as the first "nuts-and-bolts" case taken by the Supreme Court);
8. Alec C. Ewald, American Voting: The Local Character of Suffrage in the United States 2 (Feb. 2005) (unpublished Ph.D. dissertation, University of Massachusetts, Amherst) (on file with author). Ewald traces the hyper-federalized system back to the colonial period.
9. Id. at 52-60.
10. Chad Flanders, Comment, Bush v. Gore and the Uses of "Limiting, "116 YALE L.J. 1159(2007).
11. See, e.g., ALAN M. DERSHOWITZ, SUPREME INJUSTICE: HOW THE HIGH COURT HIJACKED ELECTION 2000 (2001).
12. See, e.g., Nelson Lund, The Unbearable Rightness of Bush v. Gore, 23 CARDOZO L. REV. 1219 (2002).
13. RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS (2001).
14. See Richard H. Pildes, The Supreme Court, 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28, 49 (2004) (advocating reading Bush v. Gore as a case about control of excessive partisan manipulation of the electoral process);
15. Daniel P. Tokaji, First Amendment Equal Protection: On Discretion, Inequality, and Participation, 101 MICH. L. REV. 2409 (2003). The Court perhaps envisioned its Bush v. Gore opinion playing this "catalytic" function,
16. see CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 162 (1999), when it wrote in Bush v. Gore that "[a]fter the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting," 531 U.S. 98, 104 (2000).
17. Richard L. Hasen, No Exit? The Roberts Court and the Future of Election Law, 57 S.C. L. REV. 669, 685 (2006);
18. Chad Flanders, Please Don't Cite this Case! The Precedential Value of Bush v. Gore, 116 YALE L.J. POCKET PART 141, 144 (2006), http://thepocketpart.org/2006/11/07/flanders.html.
19. 127 S. Ct. 5 (2006).
20. Id. at 8.
21. I recently declared Buckley v. Valeo, 424 U.S. 1 (1976), to be dead, only to have been proven wrong, or at least premature, in my pronouncement. Compare Richard L. Hasen, Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 153 U. PA. L. REV. 31, 42-46 (2004),
22. with Daniel H. Lowenstein, BCRA and McConnell in Perspective, 3 ELECTION L.J. 277, 282 (2004) ("Buckley is not only not dead, it may not be dying at all").
23. With the latest Supreme Court opinion in Federal Election Commission v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007), Buckley's vitality is again in question, but this time from a more speech-protective direction.
24. See Richard L. Hasen, Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 MINN. L. REV. (forthcoming 2008), available at http://ssrn.com/abstract= 1003922.
25. For a look at the types of future cases that could raise Bush v. Gore equal protection issues, see Edward B. Foley, The Future of Bush v. Gore?, 68 OHIO ST. L.J. (forthcoming 2007). For alternative taxonomies,
26. see Daniel H. Lowenstem, The Meaning of Bush v. Gore, 68 OHIO ST. L.J. (forthcoming 2007),
27. and Daniel P. Tokaji, Leave It to the Lower Courts: On Judicial Intervention in Election Administration, 68 OHIO ST. L.J. (forthcoming 2007).
28. See infra Part II. Even there, bitter controversies continue.
29. It has followed a general increase in partisanship in the United States in recent years. See Richard L. Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 WASH. & LEE L. REV. 937, 948-49 (2005).
30. Help America Vote Act of 2002, 42 U.S.C.A. §§ 15301-15545 (West 2007).
31. 472 F.3d 949 (7th Cir. 2007), cert, granted, No. 07-21, 2007 WL 1999941 (Sept. 25, 2007),
32. and cert, granted, No. 07-25, 2007 WL 1999963 (Sept. 25, 2007).
33. This is not the place to rehash the details of the 2000 Florida saga and the Court's opinions in Bush v. Gore. For my own summaries, see Hasen, supra note 4, at 382-86.
34. See also RICHARD L. HASEN, THE SUPREME COURT AND ELECTION LAW: JUDGING EQUALITY FROM BAKER V. C ARR TO BUSH V. GORE 42-46 (2003).
35. Because Florida's electoral votes were decisive in the Electoral College, the decision meant that Bush, rather than Gore, would become president.
36. Gore v. Harris, 772 So. 2d 1243 (Fla. 2000), rev'd sub nom. Bush v. Gore, 531 U.S. 98 (2000).
37. The other problems included: (1) the fact that the recounts included votes from already conducted manual recounts in selected counties, including both overvotes and undervotes; (2) the fact that the Miami-Dade recount numbers were the result of only partial vote totals, thereby giving no assurance that the recounts included in the final certification would be complete; and (3) the failure of the Florida court to specify who would count the ballots, forcing county boards to include team members without experience in counting ballots. See Hasen, supra note 4, at 385.
38. 531 U.S. at 134-35 (Souter, J., dissenting).
39. Id. at 110.
40. Id. at 111-22 (Rehnquist, C.J., concurring);
41. id. at 131 (Souter, J., dissenting) (describing the "new law" theory of the case).
42. 377 U.S. 533 (1964).
43. 383 U.S. 663 (1966).
44. 531 U.S. at 104-05 (citing Harper, 383 U.S. at 665);
45. see id. 105 (citing Reynolds, 111 U.S. at 555).
46. Id. at 109;
47. see also id. ("The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.").
48. For different perspectives on this limiting language, compare Flanders, supra note 5, with Lowenstein,
49. supra note 14.
50. Compare Hasen, supra note 4,
51. with Lund, supra note 7.
52. Judge Posner saw the Court's decision through the lens of pragmatism: the Court's decision was justified not on equal protection grounds, but on pragmatic grounds of ending a constitutional crisis. See POSNER, supra note 8.
53. For my critique of Judge Posner's argument, see Richard L. Hasen, A "Tincture of Justice": Judge Posner's Failed Rehabilitation of Bush v. Gore, 80 TEX. L. REV. 137 (2001) (book review).
54. Adam Cohen, Op-Ed, Has Bush v. Gore Become the Case That Must Not Be Named?, N.Y. TIMES, Aug. 15, 2006, at A18 ("The courts could start to undo the damage [caused by the partisan nature of the case] by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them.").
55. Jon Elster, Introduction to DELIBERATIVE DEMOCRACY 12 (Jon Elster ed., 1998);
56. see also Hasen, supra note 4, at 391 ("Embarrassment provides the only hope that the case will have precedential value.").
57. Issacharoff, supra note 2.
58. Mulroy, supra note 2.
59. Hasen, supra note 4, at 381. With the replacement of Chief Justice Rehnquist and Justice O'Connor by Chief Justice Roberts and Justice Alito, I remain pessimistic that the Court would read Bush v. Gore broadly should a case ever come before it raising the issue.
60. Hasen, supra note 10, at 686-87.
61. Hasen, supra note 4, at 392;
62. see also Flanders, supra note 5, at 1167 (noting that the Supreme Court in Bush v. Gore for the first time limited the very case it was deciding to its own facts).
63. Hasen, supra note 4, at 392.
64. See Richard L. Hasen, The Benefits of "Judicially Unmanageable" Standards in Election Cases Under the Equal Protection Clause, 80 N.C. L. REV. 1469, 1497 (2002) (citing the opacity of the opinion and predicting that the Court will eventually sort out the various lower courts' interpretations).
65. See, e.g., Black v. McGuffage, 209 F. Supp. 2d 889, 899 (N.D. 111. 2002) (finding a potential equal protection violation in the selective use of punch card machines by Illinois).
66. Common Cause v. Jones, No. 01-03470 SVW(RZX), 2002 WL 1766436 (C.D. Cal. Feb. 19, 2002).
67. See Bush v. Gore, 531 U.S. 98, 126 n.4 (2000) (Stevens, J., dissenting);
68. CALTECH/MIT VOTING TECH. PROJECT, RESIDUAL VOTES ATTRIBUTABLE TO TECHNOLOGY: AN ASSESSMENT OF THE RELIABILITY OF EXISTING VOTING EQUIPMENT (2001), available at http://www.hss.caltech.edu/~voting/CalTech_MIT_Report_Version2.pdf.
69. Hasen, supra note 4, at 395.
70. See Cass R. Sunstein, Introduction to THE VOTE: BUSH, GORE, AND THE SUPREME COURT 1, 4-8 (Cass R. Sunstein & Richard A. Epstein eds., 2001) (discussing the enduring split of opinion on the merits of the issues in the Florida dispute among judges, experts, and those who know nothing about Florida law).
71. The following paragraphs on the recall are adapted from Richard L. Hasen, The California Recall Punch Card Litigation: Why Bush v. Gore Does Not "Suck, " in CLICKER POLITICS: ESSAYS ON THE CALIFORNIA RECALL 170 (Shaun Bowler & Bruce E. Cain eds., 2006).
72. Complaint, Sw. Voter Registration Educ. Project v. Shelley, 278 F. Supp. 2d 1131 (CD. Cal. 2003) (No. CV-03-5715 SVM (RZX)); see also Hasen, supra note 45, at 175. Governor Davis himself raised the question whether the use of punch card voting machines in only some California counties raised an equal protection problem under Bush v. Gore. The California Supreme Court summarily denied his writ raising this and other issues in a decision that was not on the merits. Davis v. Shelley, No. S117921 (Cal. Aug. 7, 2003) (denying writ of mandate), available at http://appellatecases.courtinfo. ca.gov/search/case/disposition.cfm?dist=0&doc_id=282744.
73. Sw. Voter, 278 F. Supp. 2d at 1140-41.
74. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882, 894-95 (9th Cir. 2003),
75. vacated en banc, 344 F.3d 914 (9th Cir. 2003).
76. Id. at 895.
77. Id. at 895-96 (quoting Bush v. Gore, 531 U.S. 98, 109 (2000)).
78. Id. at 900.
79. See Henry Weinstein, Various Legal, Political Factors Can Sway Court, L.A. TIMES, Sept. 22, 2003, at A14 ("The Clinton appointees who dominate the [en banc] panel range in their legal records from moderately liberal to conservative. . . . The three Republican appointees . . . [include] two staunch conservatives . . . and the court's leading libertarian . . . .");
80. see also Henry Weinstein, Court Sees Delay as Too Disruptive, L.A. TIMES, Sept. 24, 2003, at A22 (describing the eleven members of the en banc panel "as ranging from very conservative to moderately liberal").
81. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) (en banc).
82. Id. at 918 (quoting Bush, 531 U.S. at 109). It is interesting that the three-judge panel and en banc panel read Bush v. Gore's sentence about local entities developing different systems "in the exercise of their expertise" to reach opposite results. This is another example of the Rashomonic interpretation of the case.
83. Id. at 918-19.
84. See id. at 919-20 ("We must of course also look to the interests represented by the plaintiffs, who are legitimately concerned that use of the punch-card system will deny the right to vote to some voters who must use that system. At this time, it is merely a speculative possibility, however, that any such denial will influence the result of the election.").
85. Stewart v. Blackwell, 356 F. Supp. 2d 791 (N.D. Ohio 2004).
86. 444 F.3d 843 (6th Cir. 2006), superseded en banc by 473, F.3d 692 (6th Cir. 2007).
87. Hasen, supra note 4.
88. Stewart, 444 F.3d at 887-88 (Gilman, J., dissenting).
89. Though the Court had decided a number of election law cases, it had not decided any election administration cases by this time, making the failure to cite Bush v. Gore more understandable. When the Court did decide its first post-2000 election administration case, Purcell v. Gonzalez, 127 S. Ct. 5 (2006), the Court again failed to cite Bush v. Gore.
90. Id. at 894.
91. Id. at 874 (majority opinion).
92. Id. at 860 n.8.
93. Id. at 862. It also found that the selective use of punch card balloting would fail even rational basis review.
94. Id. at 872.
95. Id. at 862.
96. As the court notes: Moreover, the dissent bases its analysis entirely upon Professor Hasen's suggestion that Bush v. Gore is not serious, but fails to acknowledge the second half of Hasen's article where he concludes that: "In sum, if Bush v. Gore indeed has precedential value, it clearly should apply to prevent the use of these different voting systems in the same election." Hasen, Bush v. Gore, 29 FIa. St. U. L. Rev. at 395;
97. see also id. at 379, 121 S. Ct. 525 (stating that his article "concludes that, if the case were taken seriously, Bush v. Gore should have great precedential value in changing a host of voting procedures and mechanisms, particularly when those procedures and mechanisms are challenged prospectively").
98. Thus, the dissent's argument is easily deconstructed. It is premised solely on Professor Hasen's article suggesting that Bush v. Gore should not be given precedential value. Because the dissent concludes that the decision should not be given precedential value (because the Court did not take the case seriously and an apparent inconsistency with other precedent) it does not mention the fact that Professor Hasen goes on to conclude that if Bush v. Gore were followed, it would dictate the result we reach here. Unfortunately for the dissent, inferior courts do not have the luxury of suggesting that a Supreme Court decision simply should not be followed without some tenable legal basis. Thus, because the dissent has not endeavored to provide any legitimate basis or principled manner of distinguishing Bush v. Gore-and presumably has not adopted Hasen's argument that "[e]mbarrassment provides the only hope that the case will have precedential value," Hasen, Bush v. Gore, 29 FIa. St. U. L. Rev. at 391-his argument that we simply should not follow the case does not give us any pause.
99. In the end, the dissent's reasoning ultimately flounders. The dissent concludes that our decision is "persuasive only to the extent that Bush v. Gore is controlling. Neither [our decision or the original Ninth Circuit panel decision in the California recall], in my view, successfully refutes the compelling reasons supplied by Professor Hasen for refusing to 'take Bush v. Gore's equal protection holding seriously.'" Dis. Op. (citing Hasen, 29 Fla. St. U. L. Rev. at 380). The dissent, however, fails to mention Professor Hasen's ultimate conclusion that "if Bush v. Gore indeed has precedential value, it clearly should apply to prevent the use of these different voting systems in the same election." Hasen, Bush v. Gore, 29 Fla. St. U. L. Rev. at 395. Without the luxury or the power to decide which Supreme Court decisions we want to follow, we find Professor Hasen's ultimate conclusion, that the reasoning oí Bush v. Gore applies here, to be sound.
100. Id. at 874-76 (footnote omitted).
101. 6TH CIR. R. 35(a).
102. The Sixth Circuit had been seen as a circuit that was closely divided between liberals and conservatives, and it became a focal point in the Senate battle over the confirmation of President Bush's judicial nominees. See Warren Richey, Conservatives Near Lock on US Courts, CHRISTIAN SCI. MONITOR, Apr. 14, 2005, at 1 (discussing close divide between liberal and conservative judges on the court in 2005);
103. see also Nominee for Appeals Court Withdraws, WASH. POST, Mar. 24, 2006, at A4 (reporting on Democratic filibuster of Sixth Circuit nominee Henry Saad). Of the fourteen active (non-senior) judges on the Sixth Circuit in 2006, eight were appointed by Republican presidents and six by Democratic presidents.
104. See Judges of the U.S. Court of Appeals for the Sixth Circuit, http://www.ca6.uscourts.gov/internet/court_of_appeals/courtappealsjudges.htm. But one of those Democratic appointees, Judge Gilman, was the panel dissenter in Stewart (Judges Martin and Cole, the two other panel members, were also appointed by Democratic presidents). Though a Clinton appointee, Judge Gilman also dissented in the Grutter affirmative action case when it was before the Sixth Circuit. Grutter v. Bollinger, 288 F.3d 732, 815 (6th Cir. 2002) (en banc) (Gilman, J., dissenting), aff'd, 539 U.S. 306 (2003). It was a good bet, but by no means certain, that the en banc court would have reversed the panel opinion in Stewart.
105. Stewart v. Blackwell, 473 F.3d 692 (6th Cir. 2007) (en banc).
106. For a look at the ideological composition of the various circuits, see Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 331-33 (2004). With conservative judges dominating more circuits, the chances of a Bush v. Gore equal protection claim surviving the en banc process at least in the near future appears to be slim.
107. I am not claiming that conservative judges would vote to hear these cases primarily on ideological grounds, that is, to reverse a more liberal panel's decision in an election reform case. Rather, the cases are likely to be granted because they present important, unresolved issues of constitutional significance. See Micheal W. Giles et al., Setting a Judicial Agenda: The Decision to Grant En Banc Review in the U.S. Courts of Appeals, 68 J. POL. 852, 865 (2006) [hereinafter Giles et al., Setting a Judicial Agenda];
108. see also Micheal W. Giles et al., The Etiology of the Occurrence of En Banc Review in the U.S. Court of Appeals, 51 AM. J. POL. SCI. 449, 461-62 (2007) (finding mixed support for the theory that courts grant en banc review for ideological reasons). Once the case is granted, however, the usual split we see between conservatives and liberals over how to read and understand Bush v. Gore comes into play.
109. The issue is somewhat more complicated in the Ninth Circuit, which uses a "special 'mini-en banc' procedure," see Giles et al, Setting a Judicial Agenda, supra, at 853 n.2, that sets the number of judges on rehearing at eleven. The Ninth Circuit experimented with a fifteen-judge limited en banc panel beginning in January 2006, but it returned to eleven-judge panels in July 2007.
110. See 9TH CIR. R. 35-3. Because the Ninth Circuit has a full panel of twenty-eight judges, it is possible that different draws of mini-en banc panels could have different ideological compositions.
111. See Pamela Ann Rymer, The "Limited" En Banc: Half Full, or Half Empty?, 48 ARIZ. L. REV. 317, 321 (2006) ("[A] majority of a limited en banc panel can produce a result that is contrary to the known views of the same number, or a greater number, of judges [on the Ninth Circuit].");
112. Brian T. Fitzpatrick, Op-Ed, Disorder in the Court, L.A. TIMES, July 11, 2007, at A15 ("[I]t can be shown mathematically that, as a court grows larger, it is increasingly likely to issue extreme decisions.");
113. Posting of Judge William A. Norris to SCOTUSblog, Split the 9th? No, Says Former Circuit Judge, http://www.scotusblog.com/movabletype/archives/ 2007/08/split_the_9th_n.html (Aug. 1, 2007, 2:26 PM) (disputing some of Fitzpatrick's analysis).
114. Cf. Flanders, supra note 10, at 144 ("If Stewart v. Blackwell is not the case that ultimately forces the Supreme Court to show its hand, some other case will have to be.").
115. For an overview of HAVA's assistance and requirements, see Leonard M. Shambon, Implementing the Help America Vote Act, 3 ELECTION L.J. 424 (2004).
116. Charles Stewart III, Residual Vote in the 2004 Election, 5 ELECTION L.J. 158, 158 (2006). For an historical overview of voting technology and politics,
117. see ROY G. SALTMAN, THE HISTORY AND POLITICS OF VOTING TECHNOLOGY: IN QUEST OF INTEGRITY AND PUBLIC CONFIDENCE (2006).
118. See Stewart, supra note 74 ("Based on official election returns from the states that report the turnout data necessary to form estimates, the residual vote rate fell from 1.90% in 2000 to 1.06% in 2004.").
119. See ELECTIONLINE.ORG, Briefing: The 2006 ELECTION 11-12 (2006), available at http://electionline.org/ portals/1/Publications/EB15.briefing.pdf.
120. Id. at 5.
121. See id.
122. Clifford A. Jones, Out of Guatemala?: Election Law Reform in Florida and the Legacy of Bush v. Gore in the 2004 Presidential Election, 5 ELECTION L.J. 121, 133-34 (2006).
123. For some relevant background, as well as an argument that the House should order a new election in the congressional district, see Richard L. Hasen, It's Time for the House to Pick Up the Pieces in Florida's 13 th District, ROLL CALL, Dec. 6, 2006, http://electionlawblog. org/archives/hasen-fl13.pdf.
124. The litigation is ongoing. For court documents related to the case, which is Jennings v. Elections Canvassing Commission, 958 So. 2d 1083 (Fla. Dist. Ct. App. 2006), see this webpage at the Election Law @ Moritz website: http://moritzlaw.osu.edu/electionlaw/litigation/Jenningsv. ElectionsCanvassingCommission.p hp.
125. See Laurin Frisina et al., Ballot Formats, Touch Screens and Undervotes: A Study of the 2006 Midterm Elections in Florida (May 7, 2007) (unpublished manuscript), available at http://www.dartmouth.edu/~herron/ cd13.pdf (attributing most of the undervotes to a ballot design problem);
126. Walter R. Mebane, Jr. & David L. Dill, Factors Associated with the Excessive CD-13 Undervote in the 2006 General Election in Sarasota County, Florida (Jan. 23, 2007) (unpublished manuscript), available at http://www-personal.umich.edu/ ~wmebane/smachinesl.pdf (finding that the ballot design theory is insufficiently explanatory for the pattern of undervotes).
127. Aaron Blake, FL-13 Task Force Will Turn over Investigation to GAO, THE HILL, May 2, 2007, http://thehill.com/campaign-2008/fl- 13-task-force-will-turn-over-investigationto-gao-2007-05-02.html.
128. Paul Quinlan & Patrick Whittle, Voting Machines Lose Ally, SARASOTA HERALDTRIB., NOV. 11, 2006, at Al.
129. Anthony Man, Crist Calls for Paper in Early Voting, S. FL. SUN-SENTINEL, Mar. 23, 2007, at 10B.
130. Even so, I have suggested that states conduct periodic "election law audits" to see what clarifications may be made to improve election codes and to decrease the chances that an election will be within the margin of litigation. Hasen, supra note 16, at 954.
131. See Hasen, supra note 45, at 170.
132. See Brian Friel, Remember Sarasota, NAT'L J., Feb. 24, 2007, at 44-45.
133. See Spencer Overton, Voter Identification, 105 MICH. L. REV. 631, 633 (2007).
134. See, e.g., Jason Clay worth, House OKs Same-Day Registration for Voters, DES MOINES REG., Mar. 21, 2007, at 4B ("Republicans . . . said the proposal is critically flawed because it fails to adequately protect against voter fraud.").
135. See infra note 160.
136. See Jerry Kammer, Immigration Debate Likely to Intensify, SAN DIEGO UNION-TRIB., NOV. 22, 2004, at Al.
137. Richard L. Hasen, Fraud Reform? How Efforts to ID Voting Problems Have Become a Partisan Mess, SLATE, Feb. 22, 2006, http://www.state. com/id/2136776.
138. For more on the partisan divides in Georgia and Indiana, see Overton, supra note 89,at641n.49.
139. See Jerome L. Sherman, Rendell Vows Veto of Voter ID; Governor Says Bill Would Keep Older People, Poor from Polls, PITTSBURGH POST-GAZETTE, Feb. 21, 2006, at Al;
140. see also Veto Message (H.B. 1318) from Gov. Edward G. Rendell, to the House of Representatives of Pennsylvania, available at http://www.governor.state.pa.us/governor/cwp/view.asp?A=3&Q=445679 (stating that vetoed measure would disenfranchise voters and is unnecessary to prevent voter fraud).
141. ROBIN CARNAHAN, VOTERS FIRST: AN EXAMINATION OF THE 2006 MIDTERM ELECTION IN MISSOURI 5 (2007), available at http://www.sos.mo.gov/ elections/ VotersFirst/VotersFirst-FINAL.pdf ("As in previous elections, the absence of reports of voting impersonation or voting fraud in the 2006 election in Missouri was notable.");
142. see also id. at 15-16 (discussing how some election officials asked voters to produce the wrong type of identification even though the state supreme court had declared Missouri's new voter photo identification law unconstitutional under the state constitution).
143. See, e.g., Michael Barone, Message to the Secretaries of State: 1679 and 2006, Barone Blog, http://www.usnews.com/blogs/barone/2006/2/6/ message-to-the-secretaries-ofstate-1679-and-2006.html (Feb. 6, 2006, 4:36 P.M. ET). The main nongovernmental organization advocating more stringent voting identification laws as a means of combating voter fraud was the American Center for Voting Rights, a group that had a number of ties to the Republican Party.
144. See Sourcewatch, American Center for Voting Rights Legislative Fund, http://www.sourcewatch.org/index.php?title= American_Center_for_Voting_Rights_ LegislativeFund. Recently, the group's website appears to have been taken down, and the organization no longer operates actively.
145. See Richard L. Hasen, The Fraudulent Fraud Squad: The Incredible, Disappearing American Center for Voting Rights, SLATE, May 18, 2007, http://www.slate.com/id/2166589;
146. Richard L. Hasen, Implausible Deniability: The Internet Foils Fudging by Three "Voter Fraud" Warriors, SLATE, June 13, 2007, http://www.slate.eom/id/2168350.
147. The most comprehensive summary of the literature on these two questions (current through mid-2006) is in Overton, supra note 89.
148. The most notable writing in this genre is JOHN FUND, STEALING ELECTIONS: HOW VOTER FRAUD THREATENS OUR DEMOCRACY (2004).
149. LORRAINE C. MINNITE, THE POLITICS OF VOTER FRAUD (2007), available at http://projectvote. org/fileadmin/ProjectVote/Publications/Politics_of_Voter_Fraud_Final.pdf . There is some evidence of registration fraud, thanks to the use of private "bounty hunters" to collect completed voter registration cards. But it does not appear that fraudulent registrations lead to many fraudulent votes on Election Day.
150. See Hasen, supra note 16, at 967-68.
151. CALTECH/MIT VOTING TECH. PROJECT, VTP CONFERENCE ON VOTER AUTHENTICATION AND REGISTRATION 14 (2006), available at http://vote.caltech.edu/ events/2006/VoterID/rpt.pdf.
152. U.S. ELECTION ASSISTANCE COMM'N, ELECTION CRIMES: AN INITIAL REVIEW AND RECOMMENDATIONS FOR FURTHER STUDY 1 (2006) available at http://www.eac.gov/ clearinghouse/docs/reports-and-surveys- 2006electioncrimes.pdf/attachment_download/file ("It is clear from this review that there is a great deal of debate on the pervasiveness of fraud in elections as well as what constitute the most common acts of fraud or intimidation. There is also no apparent consensus on the meaning of the phrases 'voting fraud' and 'voter intimidation.' Some think of voting fraud and voter intimidation only as criminal acts, while others include actions that may constitute civil wrongs, civil rights violations, and even legal activities.").
153. See PEOPLE FOR THE AM. WAY FOUND., WHITEWASHING THE FACTS: EAC REPORT IGNORES KEY DATA (2006);
154. Richard Wolf, Report Refutes Fraud at Poll Sites, USA TODAY, Oct. 11, 2005, http://www.usatoday.com/news/washington/2006-10- 10-poll-fraudreport_x.htm. For the EACs response,
155. see E-mail from Jeannie Layson, Commc'ns Dir., U.S. Election Assistance Comm'n to author (Dec. 13, 2006), available at http://electionlawblog. org/archives/007453.html ("EACs interpretation of HAVA and its determination of what it will study and how it will use its resources to study it are matters of agency policy and decision. These are not, nor should they be, determinations or decisions made by consultants. The EAC has the ultimate responsibility for the reports it issues, and it is incumbent upon the agency to conduct due diligence to ensure reports, data or any other information is complete and accurate before it is adopted by the Commission.").
156. The article is Ian Urbina, U.S. Panel Is Said to Alter Finding on Voter Fraud, N.Y. TIMES, Apr. 11, 2007, at Al. The draft report has been published in full by the Election Law Journal.
157. See Job Serebrov & Tova Wang, Voting Fraud and Voter Intimidation, [Draft] Report to the U. S. Election Assistance Commission (EAC) on Preliminary Research and Recommendations, 6 ELECTION L.J. 330 (2007). The New York Times's leaked copy is available at http://graphics8.nytimes.com/packages/pdf/national/2007041 lvoters_draft_ report.pdf.
158. See Press Release, Senator Dianne Feinstein, Senators Feinstein and Durbin Seek Responses from EAC Regarding Allegations of Altered or Delayed Studies (Apr. 13, 2007) (on file with author).
159. See Press Release, U.S. Election Assistance Comm'n, EAC Requests Review of Voter ID, Voter Fraud and Voter Intimidation Research Projects (Apr. 16, 2007) (on file with author).
160. See David Bowermaster, McKay 'Stunned' by Report on Bush, SEATTLE TIMES, Mar. 13, 2007, at A9 ('"Had anyone at the Justice Department or the White House ordered me to pursue any matter criminally in the 2004 governor's election, I would have resigned,' McKay said. 'There was no evidence, and I am not going to drag innocent people in front of a grand jury.'");
161. David C. Iglesias, Why I Was Fired, Op-Ed, N.Y. TIMES, Mar. 21, 2007, at A21 ("After reviewing more than 100 complaints of voter fraud, I felt there was one possible case that should be prosecuted federally. I worked with the F.B.I, and the Justice Department's public integrity section. As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the F.B.I, did not disagree with my decision in the end not to prosecute.").
162. Eric Lipton & Ian Urbina, In 5-Year Effort, Scant Evidence of Voter Fraud, N.Y. TIMES, Apr. 12, 2007, at Al ("A handful of convictions involved people who voted twice. More than 30 were linked to small vote-buying schemes in which candidates generally in sheriffs or judge's races paid voters for their support.").
163. Id. Professor Minnite supplied the prosecution data to Times, and she believes that few if any of the prosecutions would have been prevented by a voter identification card. E-mail from Lorraine Minnite to author (May 7, 2007) (on file with the author).
164. See CALTECH/MIT VOTING TECH. PROJECT, VOTING: WHAT IS, WHAT COULD BE (2001), available at http://www.vote.caltech. edu/2001report.htm ("We have no systematic measures of fraud, but fraud appears to be especially difficult to regulate in absentee systems. In-precinct voting or 'kiosk' voting is observable. Absentee voting is not. The prospect for coercion is increased with absentee voting on demand.");
165. JOHN C. FORTIER, ABSENTEE AND EARLY VOTING: TRENDS, PROMISES, AND PERILS 51-59 (2006) (summarizing concerns about the potential for fraud and coercion with absentee voting). Indiana's assistant attorney general, Douglas Webber, told EAC interviewers that absentee balloting presented the greatest problem with vote fraud in the state of Indiana. U.S. ELECTION ASSISTANCE COMM'N,
166. supra note 102, app. 3 at 5 (2006). This is an interesting observation given Indiana's recently-passed voter identification law, which exempts absentee ballots.
167. See infra note 195 (noting Seventh Circuit opinion discussing whether Indiana's failure to include absentee ballots in its voter identification law rendered the law unconstitutional).
168. 169 F.3d 723, 726 (11th Cir. 1999).
169. Edward Still, "Undocumented Citizens, " Votelaw, http://www.votelaw.com/blog/ archives/005065.html (Mar. 12, 2007, 9:17 P.M.).
170. One study finds twenty-three people in a sample of about 36,000 self-reporting that they were asked for identification before voting in the 2006 election and then were not allowed to vote. Stephen Ansolabehere, Ballot Bonanza: The First Big Survey of Voter ID Requirements and Its Surprising Findings, SLATE, Mar. 16, 2007, http://www.slate.com/id/2161928
171. (citing Stephen Ansolabehere, Access Versus Integrity in Voting Identification Requirements 1 (Coop. Cong. Elections Study, Working Paper 07-01, 2007)). Extrapolating to the U.S. population, the figure could be quite significant. But this research is preliminary and based on self-reporting, and it therefore should be taken with a grain of salt.
172. See Overton, supra note 89, at 657-63 (summarizing extant evidence on number of persons without photo identification).
173. Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326, 1338 (N.D. Ga. 2005).
174. See infra note 190.
175. IND. CODE § 3-11.7-5-2.5, subd. (c) (2007). At a recent forum, Indiana Secretary of State Rokita argued that it was unclear if the new law deterred voting because turnout went up in Indiana compared to the last midterm election. Transcript, AEI-Brookings Election Reform Project, Is Our Election System Broken? Can We Fix It?, (Mar. 9, 2007), available at http://www.aei.org/events/filter.all,eventID.1474/transcript.asp. Without controlling for other factors, such as change in population and general interest in the election, the turnout figure tells us very little about the deterrent effect of the new law.
176. E-mail from William R. Groth, a plaintiffs' attorney in the Indiana voter identification litigation, to author (Mar. 28, 2007) (on file with the author),
177. See EAGLETON INST. OF POLITICS, RUTGERS UNIV. & MORITZ COLL. OF LAW, OHIO STATE UNIV., SUMMARIZING A REPORT ON BEST PRACTICES TO IMPROVE VOTER IDENTIFICATION REQUIREMENTS PURSUANT TO THE HELP AMERICA VOTE ACT OF 2002 PUBLIC LAW 107-252 (2006);
178. see also Richard Wolf, Study: Stricter Voting ID Rules Hurt '04 Turnout, USA TODAY, Feb. 19, 2007, http://www.usatoday.com/news/ nation/2007-0219-voter-id-study_x.htm. The U.S. Election Assistance Commission eventually released the full draft report (though disavowing it). It is posted at http://www.eac.gov/ clearinghouse/reports-and-surveys.
179. Zachary A. Goldfarb, Election Panel Faces Partisanship Allegations, WASH. POST, June 22, 2007, at A17.
180. See Press Release, U.S. Election Assistance Comm'n, EAC to Launch Comprehensive Study of Voter ID Laws (Mar. 30, 2007), available at http://www.eac.gov/ News/press/docs/03-30-07-eac-to-launch-comprehensive-study- of-voter-id-laws ("EAC has concerns regarding the data, analysis, and statistical methodology the Contractor used to analyze voter identification requirements to determine if these laws have an impact on turnout rates.");
181. see also David Nather, Election Board Facing Votes of No Confidence, CQPOLITICS.COM, Apr. 23, 2007, http://www.cqpolitics.com/2007/04/from_cq_weekly_ election_board.html ("A second commission report on voter identification laws found that the laws can reduce turnout, particularly among Hispanics. The panel delayed releasing that report for months, then made it public even while refusing to endorse its conclusions.").
182. Ian Urbina, Democrats Fear Disillusionment in Black Voters, N.Y. TIMES, Oct. 27, 2006, at Al ("Voting experts say the disillusionment [in the African-American community] is the cumulative effect of election problems in 2000 and 2004, and a reaction to new identification and voter registration laws.").
183. Hasen, supra note 16, at 943.
184. Id. at 942.
185. See id. at 943-44 (noting that Republicans in the state of Washington were much more likely than Democrats to view the 2004 electoral process as unfair after a contested gubernatorial election was decided by state courts in favor of the Democratic candidate).
186. PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, DEMOCRATS HOLD ENTHUSIASM, ENGAGEMENT ADVANTAGE: NOVEMBER TURNOUT MAY BE HIGH 6 (2006), available at http://people-press.org/reports/pdf/291.pdf.
187. Id. The author gratefully acknowledges permission given by Pew to reproduce this graphic.
188. See supra notes 76-85 and accompanying text.
189. Hasen, supra note 16, at 974.
190. See id. at 983-91 (suggesting how states can change the method of selecting chief elections officers to make election administration less partisan).
191. See id. at 961 n. 102.
192. See Transcript, supra note 117 (statement of Indiana Secretary of State Todd Rokita).
193. See National Association of Secretaries of State, 2007-2008 Executive Board, http://nass.org/index.php?option=com_content&task= view&id=26&Itemid=192 (last visited, Sept. 29, 2007).
194. Rokita Flap Haunts Romney, Advance Indiana, http://advanceindiana. blogspot.com/2007/04/rokita-flap-haunts-romney.html (Apr. 20, 2007, 5:05 P.M.). Rokita recently defended partisan election administration on accountability grounds. Ian Urbina, Voting Officials Face New Rules to Bar Conflicts, N. Y. TIMES, Aug. 1, 2007, at Al ("Mr. Rokita said it was better to elect top voting officials rather than appoint them because they were more accountable when they knew they could be voted out of office if they failed to act impartially.").
195. Nate Smith, Secretary of State Addresses GOP, WASH. TIMES-HERALD, Apr. 13, 2007, http://www.washtimesherald.com/ local/local_story_103114013.html.
196. In a press release, U.S. Senator (and Senate Rules Committee Chair) Dianne Feinstein noted: To ensure that Congress did not impose an unfunded mandate on the States, HAVA authorized nearly $4 billion in payments to the States over three fiscal years to implement its requirements. To date, Congress has appropriated over $3.1 billion and States are in various stages of implementation of the Act. However, Congress failed to appropriate approximately $798 million in HAVA funds, of which $724 million are for requirements and $74 million are for disability access for voting purposes. Consequently, this funding shortfall of millions of dollars has impacted States' ability to fully implement election-related programs. These circumstances will only be further exacerbated by additional unfunded federal mandates for State implementation by the 2008 elections.
197. The President's budgets failed to include any funding for HAVA requirements payments over the last three fiscal years, FY06-FY08. Similarly, Congress failed to appropriate such funds authorized in HAVA. In addition to the $600 million authorized for FY05, but not appropriated, Congress continued to underfund HAVA by an additional $198 million in FY06 and FY07. Press Release, Senator Dianne Feinstein, Chairman Feinstein Calls for Full Funding of Help America Vote Act in FY08 Budget, (Feb. 28, 2007), available at http://www.votetrustusa.org/index.php?option=com_content&task= view&id=2295&Itemid= 26.
198. See Transcript, supra note 117 (statement of Thomas Mann, Senior Fellow, Brookings Institution).
199. See Press Release, Senator Barack Obama, Obama Introduces Bill to Rank State Election Practices and Performance (Mar. 1, 2007), available at http://obama.senate.gov/press/070301-obama_introduce_11/index.php.
200. The bill was based upon ideas put forward in Heather Gerken, How Does Your State Rank on the Democracy Index?, LEGAL TIMES, Jan. 1, 2007, at 36.
201. Hasen, supra note 16, at 958.
202. As with my last count, see id., this count is based upon a Lexis search of state and federal court databases using a year restriction and "election w/p challenge," culling out cases that are obviously inapplicable. You can find the cases cited and described in an Excel spreadsheet posted at http://electionlawblog.org/archives/stanford.xls.
203. See Charles Anthony Smith & Christopher Shortell, The Suits That Counted: The Judicialization of Presidential Elections, 6 ELECTION L.J. 251, 251 (2007) (finding a large increase in presidential election litigation since 2000, especially in the 2004 period).
204. Hasen, supra note 16, at 944.
205. 127 S. Ct. 5 (2006).
206. The next few paragraphs draw from Richard L. Hasen, Election Deform: The Supreme Court Messes Up Election Law. Again., SLATE, Oct. 24, 2006, http://www.slate.com/id/2152116, and Hasen, supra note 93.
207. Darryl Fears, Voter ID Law Is Overturned, WASH. POST, Oct. 28, 2005, at A03, available at http://www. washingtonpost.com/wp-dyn/content/article/2005/10/27/ AR2005102702171.html ("Conservative lawmakers said it was needed to limit elections fraud. Liberal lawmakers said that argument was a smokescreen masking another intent: to maintain Republican power in the state by diluting the minority vote, which typically goes to Democrats.").
208. Under Rulings, Georgia Can't Require Voter Photo IDs This Year, USA TODAY, July 12, 2006, http://www.usatoday.com/news/nation/2006-07- 12-voter-ID_x.htm?csp=24 ("Republican Gov. Sonny Perdue and other supporters of the IDs had argued they were needed to prevent election fraud. Civil rights groups challenged the law in both federal and state court, arguing that it discriminated against poor, elderly and rural voters. They also argued that voter fraud in Georgia stems from absentee ballot voting, an issue not even addressed by the law.").
209. 42 U.S.C. § 1973c (2000).
210. The internal Department of Justice memorandum, Section 5 Recommendation Memorandum (Aug. 25, 2005), leaked to the Washington Post, is posted at http://www.votingrights.org/news/downloads/Section%205%20Recommendation%20Memo randum.pdf.
211. Dan Eggen, Criticism of Voting Law Was Overruled, WASH. POST, NOV. 17, 2005, at AOl, available at http://www. washingtonpost.com/wp-dyn/content/article/2005/11/16/AR2005111602504.html. Some have claimed that this decision was part of a pattern of the Justice Department's political appointees overruling career attorneys and making political decisions.
212. See Changing Tides: Exploring the Current State of Civil Rights Enforcement Within the Department of Justice: Oversight Hearing on the Civil Rights Division of the Department of Justice Before the H. Subcomm. on the Constitution, Civil Rights, and Civil Liberties, 110th Cong. (2007) (statement of Joseph D. Rich, Director, Fair Housing Project, Lawyer's Committee for Civil Rights Under Law), available at http://judiciary.house.gov/ media/pdfs/Rich070322.pdf.
213. Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326 (N.D. Ga. 2005).
214. Id. at 1361-62.
215. GA. CODE ANN. §§21-2-417.1, 40-5-103(d) (2007).
216. See Under Rulings, Georgia Can't Require Voter Photo IDs This Year, supra note 146.
217. See id.
218. Common Cause/Ga. v. Billups, 439 F. Supp. 2d 1294 (N.D. Ga. 2006);
219. Lake v. Perdue, No. 2006CV119207 (Ga. Ct. App. July 7, 2006) (granting temporary restraining order). As this Article went to press, both the federal district court and the Georgia Supreme Court dismissed challenges to the voter identification law on standing grounds. Common Cause/Ga. v. Billups, No. 4:05-CV-0201-HLM, slip op. at 128 (N.D. Ga. Sept. 6, 2007), available at http://alt.cimedia.com/ajc/pdf/polinsider/Photo%20ID%20order%20part%201.pdf
220. and http://alt.cimedia.com/ajc/pdf/polinsider/ Photo%20ID%20order%20part%202.pdf; Perdue v. Lake, 647 S.E.2d 6 (Ga. 2007). The federal district court opinion also reached the merits, holding that Georgia's revised voter identification law did not violate the constitutional rights of voters. For more on the federal court's view of the merits in the Georgia litigation, see footnotes 179 and 190, infra.
221. MO. ANN. STAT. § 115.427 (West 2007); 2006 Mo. Laws 728-32.
222. Weinschenk v. State, 203 S.W.3d 201 (Mo. 2006).
223. Id. at 218.
224. Id. at 219.
225. For the text of the proposition, see http://www.azsos.gov/election/2004/ info/PubPamphlet/english/prop200.htm.
226. See Purcell v. Gonzalez, 127 S.Ct. 5, 6 (2006).
227. Id.
228. Id. at 7.
229. Id. at 6.
230. Id. at 7 (citations omitted).
231. Id.
232. The Court also expressly disclaimed that it was deciding anything on the merits. Id. at 7.
233. Id. at 8 (Stevens, J., concurring). The concurrence reads in full: Allowing the election to proceed without enjoining the statutory provisions at issue will provide the courts with a better record on which to judge their constitutionality. At least two important factual issues remain largely unresolved: the scope of the disenfranchisement that the novel identification requirements will produce, and the prevalence and character of the fraudulent practices that allegedly justify those requirements. Given the importance of the constitutional issues, the Court wisely takes action that will enhance the likelihood that they will be resolved correctly on the basis of historical facts rather than speculation.
234. Orin Kerr termed the Court's treatment of the stay motion the legal equivalent of a "lightning bolt." Posting of Orin Kerr to The Volokh Conspiracy, Supreme Court Allows Voter ID Law, http://volokh.eom/posts/ 1161378321.shtml (Oct. 20, 2006, 17:05).
235. JAN CRAWFORD GREENBURG, SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT 175 (2007).
236. Cf. Rick Hasen, Redistricting Measure Doesn't Belong on Ballot, L.A. DAILY J., Aug. 17, 2005, at 8, available at http://electionlawblog.org/archives/dj0817.pdf (arguing that the California Supreme Court should follow up its orders in cases involving pending initiatives with later-issued carefully considered opinions to provide much needed guidance to lower courts).
237. See, e.g., N.J. Democratic Party, Inc. v. Samson, 814 A.2d 1025 (N.J. 2002), opinion issued, 814 A.2d 1028, stay denied, 537 U.S. 803 (2002), cert, denied, 537 U.S. 1083 (2002) (ordering state election officials to allow the Democratic Party to replace withdrawing U.S. Senate candidate Robert Torricelli with Frank Lautenberg, and issuing opinion after election).
238. See Overton, supra note 89 (advocating cost-benefit analysis in court determination of constitutionality of voter identification laws). The standard of review in such cases presents a difficult question, one that the Court may have the opportunity to resolve when it hears the Crawford case.
239. See infra note 202 and accompanying text.
240. Alternatively, the Court could have said that unless the state could produce some evidence of a real threat of voter fraud that a voter ID law could deter, such identification laws are unconstitutional.
241. Purcell v. Gonzalez, 127 S.Ct. 5, 7 (2006).
242. Id.
243. See Michael C. Dorf, In a Brief, Unsigned New Opinion, the Supreme Court Sends the Wrong Signal on Voter ID and Voter Fraud, FLNDLAW, Nov. 6, 2006, http://writ.news.findlaw.com/dorf/20061106.html (noting absence of empirical support for Court's assumptions). Public opinion surveys show that a majority of voters support voter identification laws.
244. See Overton, supra note 89, at 634. But that support does not by itself show that voters believe such laws are necessary to deter voter impersonation fraud and that the absence of such laws makes it less likely those voters will turn out to vote. Nor does evidence showing that a majority of voters worry about the fairness of the election process mean that voter identification laws would bolster such confidence.
245. But see Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 794 (S.D. Ind. 2006) (drawing such a conclusion from evidence about problems with public confidence).
246. Posting of Alex Keyssar to The Huffington Post, " Disenfranchised"? When Words Lose Meaning, http://www.huffingtonpost. com/alex-keyssar/disenfranchised-when_b_32241.html (Oct. 22, 2006, 13:57 EST);
247. see also Pamela S. Karlan, New Beginnings and Dead Ends in the Law of Democracy, 68 OHIO ST. L.J. 743, 765 (2007) ("The Court's equation of state denial of the right to vote with voters' private decisions not to participate in a process in which they lack confidence represents a breathtaking expansion of the concept of vote dilution.").
248. Weinschenk v. State, 203 S.W.3d 201, 218 (Mo. 2006). A federal district court recently blindly followed the troubling balancing language from Purcell in upholding Georgia's revised voter identification law. See Common Cause/Ga. v. Billups, No. 4:05-CV-0201-HLM, slip op. at 152-53 (N.D. Ga. Sept. 6, 2007), available at http://alt.cimedia.com/ajc/pdf/ polinsider/Photo%20ID%20order%20part%201.pdf
249. and http://alt.cimedia.com/ajc/pdf/polinsider/ Photo%20ID%20order%20part%202.pdf. The district court also relied heavily on the Seventh Circuit's Crawford decision discussed below. Id. at 150-52.
250. Purcell, 127 S.Ct at 7.
251. Press Release, electionline.org, Nonpartisan Research Group Finds Potential for Trouble at Polls (Oct. 24, 2006), available at http://electionline.org/Portals/1/Publications/Press.Release.Nov.06.FINAL.pdf.
252. See CARNAHAN, supra note 96, at 15-17 (recounting problems with poll workers asking Missouri voters for the wrong type of identification or requiring voters without identification to cast provisional ballots and noting that the Secretary of State herself was wrongfully asked to provide identification).
253. See, e.g., Ne. Ohio Coal, for the Homeless v. Blackwell, 467 F.3d 999, 1012 (6th Cir. 2006) (relying on Purcell to overturn the district court's temporary restraining order blocking enforcement of Ohio's voter identification procedures for absentee voters on grounds that an order "needlessly creates disorder in electoral processes, without any concomitant benefit to the public").
254. Hasen, supra note 16, at 991-99.
255. The right to cast a provisional ballot under HAVA means it is at least theoretically possible that some ballots could be cast provisionally before an election by voters without identification, and then a court could order the ballots counted in the event a court declares the identification law unconstitutional after the election. See Edward B. ("Ned") Foley, ID Disparities & Post-Voting Review of Provisional or Absentee Ballots, ELECTION LAW @ MORITZ, Oct. 25, 2006, http://moritzlaw.osu.edu/electionlaw/freefair/articles.php?ID=12. But that remedy would work only for ballots that are actually cast in a system that works effectively to allow the casting of such ballots. It cannot help anyone who was deterred from voting by the voter identification requirement (despite the HAVA right to cast a provisional ballot), or anyone who (improperly) was not offered a provisional ballot, or anyone whose provisional ballot was not properly handled by election officials.
256. Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007), cert, granted, No. 07-21, 2007 WL 1999941 (Sept. 25, 2007), consolidated with Indian Dem. Party v. Rokita, No. 07-25, 2007 WL 1999963 (Sept. 25, 2007).
257. Id. at 955 (Evans, J., dissenting).
258. Id. at 951-52 (majority opinion).
259. Affidavit of Marjorie R. Hershey, Exhibit 10, Brief of Indiana Democratic Party, Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775 (S.D. Ind. 2006), available at http://moritzlaw.osu.edu/electionlaw/litigation/documents/ IndianaDemocraticPartyAttachment10.pdf. In contrast, in the Georgia voter identification case, the plaintiffs submitted the affidavits of a number of voters who alleged they would not be able to vote under Georgia's voter identification law. Common Cause/Ga. v. Billups, 406 F. Supp. 2d 1326, 1340-42 (N.D. Ga. 2005).
260. This was essentially the approach recently taken by a federal district court in upholding Georgia's revised voter identification law. See Common Cause/Ga. v. Billups, No. 4:05-CV-0201-HLM, slip op. at 153-55 (N.D. Ga. Sept. 6, 2007), available at http://alt.cimedia.com/ajc/pdf/polinsider/ Photo%20ID%20order%20part%201.pdf
261. and http://alt.cimedia.com/ajc/pdf/polinsider/ Photo%20ID%20order%20part%202.pdf. The court, ostensibly relying on Crawford, applied a rational basis test: "Although Plaintiffs may argue that no documented cases of in-person voter fraud exist in Georgia, 'the State is not required to produce such documentation prior to enactment of a law.'" Id. at 154-55 (quoting Rokita, 458 F. Supp. 2d at 826). The Crawford court went further, however. It noted that Indiana law provides for a way for indigents to vote without producing photo identification. 472 F.3d at 950. Though such an approach in theory should obviate a poll tax argument against voter identification requirements as accepted in the Georgia case, it is not so clear upon closer inspection that the Indiana law removes the poll tax problem. To take advantage of the indigency exception, a voter must cast a provisional ballot at the polling place and then show up at another time and place to fill out an affidavit of indigency. These affidavits are not available at the polling place; instead, the indigent person must make a separate trip to appear before a clerk or election board to sign an affidavit under penalty of perjury that one does not possess a photo identification and that indigency prevents getting one (or that there are religious reasons for not having one's picture taken). This procedure seems to be a pretty onerous burden on the poor, especially those who have to travel back a second time to see an elections official. A less onerous requirement would allow the affidavit to be filled out at the polling place, or a single time with a voter's registration form. The revised Georgia law, in contrast, gave voters the option of signing up for no-excuse absentee balloting without proof of identification.
262. See Common Cause/Ga., supra, at 146;
263. see also id. at 146-47, 150 (contrasting more onerous nature of earlier Georgia identification law and noting state's earlier failure to publicize the no-excuse absentee voting option).
264. Economic models of voting have had a difficult time explaining why anyone bothers to vote in large elections, where the chances of casting a decisive ballot are extremely small. If voters were acting "instrumentally" in casting their votes to influence the outcomes we would expect to see turnout be the smallest, not the largest, in presidential elections, where the chances of affecting the outcome (Florida 2000 to one side) are extremely small. Many economists, and it appears from Crawford that Judge Posner is among them, would explain voting by its "consumption" value, or the pleasure that people get in casting votes - a tautological explanation at bottom (people vote because they like to vote). Given this viewpoint, it is curious that Judge Posner devoted no discussion to the special burdens the law placed on indigent voters; economic analysis should have led the judge to conclude that such voters were especially unlikely to vote under a cost-benefit analysis. For an introduction to the economic model and critiques, see Richard L. Hasen, Voting Without Law?, 144 U. PA. L. REV. 2135, 2138-46 (1996) (describing and criticizing economic model of voting).
265. Crawford, 472 F.3d at 951 (citation omitted); see also id. at 953 (comparing voter fraud to "littering");
266. Bob Bauer, Voting Fraud and the Offense of Littering in the Jurisprudence of Richard Posner, MORE SOFT MONEY HARD LAW, May 3, 2007, http://moresoftmoneyhardlaw.com/ updates/voting_rights_act_redistricting_issues.html?AID=989 ("Posner's precise point about littering is that the offenders, like those guilty of impersonation fraud, are hard to catch. Yet the comparison works at a number of levels, also helping the Judge to lower the stakes-and by lowering the stakes, lower the burden carried by legislatures in justifying a particular regulatory solution.").
267. Judge Posner found that the voter identification law was likely to burden Democratic voters over Republican voters, 472 F.3d at 951, but he observed that indigent voters could simply vote using an indigency affidavit and would not necessarily be deterred by the requirement. Id. at 950 ("Both the indigent and the nonindigent who does not have (or have with him) a photo ID can, if challenged, cast a provisional ballot and then has 10 days either to file an affidavit of indigency or to procure a photo ID.");
268. id. at 952 ("The fewer the people who will actually disfranchise themselves rather than go to the bother and, if they are not indigent and don't have their birth certificate and so must order a copy and pay a fee, the expense of obtaining a photo ID, the less of a showing the state need make to justify the law." (emphasis added)). The judge did not consider the large transaction costs associated with Indiana's rules for indigent voters, requiring two trips (at private expense) to government offices. Judge Posner's views in Crawford form an interesting contrast with his analysis of the 2000 Florida election, in which he compared punch card voting to a "de facto literacy test."
269. POSNER, supra note 8, at 259.
270. 472 F.3d at 952 (citing Purcell, 127 S. Ct. 5, 7 (2006) (per curiam)).
271. Id. at 953.
272. Nor was the district court's treatment of this issue any better. The district court cited to fifteen exhibits from the state to reach the conclusion that voter fraud was a major national problem. Ind. Democratic Party v. Rokita, 458 F. Supp. 2d 775, 793-94 (S.D. Ind. 2006).
273. Yet virtually all of that evidence was anecdotal, unproven (and in some cases disproved), or unrelated to the kind of fraud (such as absentee ballot fraud) that Indiana's voter identification law would do nothing to deter. See Brief of Brennan Center for Justice at NYU School of Law as Amicus Curiae Supporting Plaintiffs-Appellants and Reversal at 7-18, Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007) (No. 06-2218), available at http://www.brennancenter.org/dynamic/subpages/download_file_36780.pdf (analyzing and refuting each piece of evidence cited by the district court in support of its holding on the prevalence of impersonation voter fraud);
274. Rick Hasen, The Extremely Weak Case of Voter Fraud in Crawford, the Indiana Voter ID Case, Election Law, http://electionlawblog.org/ archives/008378.html (May 2, 2007, 8:45 A.M.). The Seventh Circuit majority's discussion of absentee voting is equally unconvincing. The court wrote: The plaintiffs complain that the new Indiana law is underinclusive because it fails to require absentee voters to present photo IDs. But how would that work? The voter could make a photocopy of his driver's license or passport or other government-issued identification and include it with his absentee ballot, but there would be no way for the state election officials to determine whether the photo ID actually belonged to the absentee voter, since he wouldn't be presenting his face at the polling place for comparison with the photo. 472 F.3d at 954. The court did not consider the possibility of a law requiring absentee voters to provide a copy of their state driver's license (or other state ID) numbers, or thumbprints with their votes, which could be compared (perhaps on a random basis in an audit) to a thumbprint on file, or some other means of verifying their identities. Moreover, the problem with absentee voter fraud is not impersonation vote fraud, but the sale of votes. Under anything stronger than rational basis review, it would be hard for the state to justify its decision to make voting more difficult in the name of fraud protection for those voters who vote with a system least prone to fraud, while leaving the system with more fraud completely alone.
275. That there would be more absentee voter fraud than impersonation voter fraud is completely unsurprising, given the difficulties of enforcing vote buying deals for voting occurring at polling places with a secret ballot. See FORTIER, supra note 110;
276. Richard L. Hasen, Introduction, Symposium, Internet Voting and Democracy, 34 LOY. L.A. L. REV. 979, 982 (2001) (noting that institution of the secret ballot may have reduced bribery).
277. 504 U.S. 428 (1992).
278. 472 F.3d at 954 (Evans, J., dissenting) (citation omitted).
279. Rick Hasen, Initial Thoughts on the Seventh Circuit Indiana Voter Identification Decision, Election Law, http://electionlawblog.org/archives/ 007581.html (Jan. 5, 2007, 3:19 P.M.).
280. Id.;
281. see also Rick Hasen, Crawford, and the Partisan Affiliation of Judges Deciding the Voter Identification/Election Administration Cases, with a Note on Wikipedia, Election Law, http://electionlawblog.org/archives/008213. html (Apr. 9, 2007, 4:36 P.M.). As this Article was being completed, the Michigan Supreme Court too split along party lines in issuing an advisory opinion on the constitutionality of Michigan's voter identification law.
282. See In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, No. 130589, 2007 WL 2410868 (Mich. July 18, 2007), available at http://electionlawblog.org/archives/mich-voter-id.pdf. The five Republican judges on the panel voted to uphold the law's constitutionality; the two Democrats disagreed.
283. Rick Hasen, Breaking News: Michigan Supreme Court, On Party Line Vote, Upholds Michigan Voter ID Law Against Constitutional Challenge, Election Law, http://electionlawblog.org/archives/008905.html (July 19, 2007, 10:49 A.M.).
284. Crawford v. Marion County Election Bd., 484 F.3d 437, 437 (7th Cir. 2007) (Wood, J., dissenting from denial of rehearing en banc, joined by Rovner, Evans, and Williams, JJ.) ("[Wjhen there is a serious risk that an election law has been passed with the intent of imposing an additional significant burden on the right to vote of a specific group of voters, the court must apply strict scrutiny."). Echoing the call for stricter review of Indiana's election law because of a bad legislative intent is a recent student note on the case in the Harvard Law Review. See Recent Case, Crawford v. Marion County Election Board, 472 F.3d 949 (7th Cir. 2007), 120 HARV. L. REV. 1980, 1983 n.28 (2007) (rejecting my proposed "effects- based" test forjudging the constitutionality of election laws and endorsing the impermissible motive test of Professor Pildes).
285. For a look at the complexities of the standard of review issue, see Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics, Part I: Explanations and Opportunities, 156 U. PA. L. REV. (forthcoming 2007), available at http://ssrn.com/abstract= 980079. Two cases on the Supreme Court's October 2007 docket touch on the standard of review issue.
286. See Wash. State Grange v. Wash. State Republican Party, 127 S. Ct. 1373 (2007) (granting cert.), consolidated with Washington v. Wash. State Republican Party, 127 S. Ct. 1373 (2007);
287. New York State Bd. of Elections v. Lopez Torres, 127 S. Ct. 1325 (2007) (granting cert.).
288. Petition for a Writ of Certiorari at 21-25, Indiana Democratic Party v. Rokita, 472 F.3d 949 (7th Cir. 2007) (No. 07-25), available at http://electionlawblog.org/archives/crawford-cert.pdf (arguing that panel decision uses incorrect standard of review in considering constitutionality of Indiana voter identification law).