Crawford v. Marion County

  • November 5, 2013

    by Jeremy Leaming

    Several years before the U.S. Supreme Court greatly hobbled the landmark Voting Rights Act in Shelby County v. Holder, a federal appeals court circuit provided a significant boost to ignoble state efforts to suppress the votes of minorities, students, the poor and the elderly. In Crawford v. Marion County Election Board, the U.S. Court of Appeals for the Seventh Circuit turned away a constitutional challenge and upheld a stringent voter ID law in Indiana.

    Recently Seventh Circuit Judge Richard Posner, who authored the Court’s opinion that was subsequently upheld the by the U.S. Supreme Court, said he erred. Posner (pictured), who now says laws like Indiana’s are “widely regarded” as tools to suppress the vote, suggested that his error in Crawford was partly due to poor presentation of the evidence that the law would disproportionately suppress groups of voters. (In this piece for ACSblog, longtime Supreme Court litigator Paul M. Smith, who argued Crawford before the high court, explains why Posner had plenty of compelling information to vote the other way and invalidate the Indiana law.)

    In a piece for The National Law Journal, Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, addressing Posner’s comments, goes further, noting that far too many judges view constitutional challenges to state Voter ID laws with “skepticism.”

    Ifill writes, “Without a doubt, lawyers advancing claims of discrimination should have to prove their case. But judges also should be aware of their own lack of experience and knowledge.”

    For example, Ifill cites a 2010 opinion from the U.S. Court of Appeals for the Eleventh Circuit that rejected a racial discrimination lawsuit, claiming there was not sufficient evidence that a white supervisor calling a black worker “boy” amounted to racism. Ifill then turned to the more recent Shelby County opinion, where the high court’s conservative justices banded together to decided “that they were better positioned than Congress to determine whether racial discrimination in voting still justifies the coverage regime that existed under” the Voting Rights Act. “Not even 15,000 pages of evidence and testimony could convince the court that Congress got it right.”

    The problem here, Ifill explains is that we all imagine we are experts on what accounts for discrimination. The truth is we are not, including judges. “We are too often,” Ifill writes “unwilling or unable to defer to the substantiated experiences of those who stand directly vulnerable to discrimination in voting, housing, employment and countless other arenas.”

    And many voters, primarily minorities, continue to suffer as state after state creates new and onerous hurdles to voting. Posner may now be able to acknowledge what many others do – too many state voter ID laws are all about suppressing the vote. But as Ifill explains, many judges are just ill-equipped to understand the scope and depth of discrimination despite the evidence provided them.

    For detailed information on state restrictions on voting, see the ACS’s Voting Rights Resources.

  • February 22, 2013
    Guest Post

    by Spencer Overton, Professor of Law at The George Washington University Law School and author of the book Stealing Democracy: The New Politics of Voter Suppression. This post is part of an ACSblog symposium on Shelby County v. Holder.

    Many who assert the U.S. Supreme Court in Shelby County v. Holder should uphold the preclearance and coverage provisions of Section 5 of the Voting Rights Act disagree with the Court’s 2008 decision in Crawford v. Marion County Bd. of Elections that upheld Indiana’s photo identification requirement.  On the other hand, those who oppose Section 5 cite Crawford as a reason Section 5 is allegedly unconstitutional. 

    An honest reading of Crawford, however, provides five reasons the Court should now defer to Congress’s determinations regarding the coverage and preclearance provisions of Section 5. 

    1.  Legal Issue:  In Crawford, the U.S. Supreme Court ruled that the Indiana ID requirement did not unconstitutionally burden the right to vote (the Court did not address whether ID discriminated on the basis of race).  The plaintiff in Shelby County seeks to undermine Congress’s authority under the 14th and 15th Amendments by making the novel claim that the coverage provision violates a “principle of state equality” -- but the U.S. Constitution contains no such requirement

    2.  Record:  In Crawford, the U.S. Supreme Court deferred to Indiana’s interest in preventing fraud despite the fact “[t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history.”  In Shelby County v. Holder, the Court should defer to a 2006 Congressional reauthorization process that featured 21 hearings, over 90 witnesses, and a 15,000-page record that showed that contemporary voting discrimination remains concentrated in covered states.  For example, Congress found that the Justice Department lodged over 700 objections to voting changes enacted by covered jurisdictions since Congress previously reauthorized Section 5 in 1982.  Congress also considered the “Katz Study,” which showed that covered jurisdictions account for less than 25 percent of the nation’s population but 56 percent of the successful published Section 2 voting rights cases.  The percentage of documented elections with extreme white bloc voting was 80.7 percent in covered jurisdictions, compared to 40.9 percent in uncovered jurisdictions. 

  • September 12, 2012

    by Jeremy Leaming

    Corporate America, thanks to an assist from the U.S. Supreme Court has even greater ability to secretly pump large sums of money into elections from coast to coast. The high court also provided an assist to state’s bent on creating more difficulties for individuals to vote through ridiculously onerous voter ID laws, curtailment of early voting, or clampdowns on voter registration drives.

    The picture is not a flattering one for a nation that staunchly promotes democracy.

    Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) sought to bring more attention to the matter with a hearing today on those Supreme Court opinions. “I am concerned that recent Supreme Court decisions [Crawford v. Marion County, upholding a stringent state voter ID law, and Citizens United v. FEC] have dramatically altered the balance of our democracy by finding new rights for corporations to influence elections, while at the same time allowing new barriers to the right of individuals to vote,” Leahy said in his opening statement at the hearing.

    Later Leahy lamented the fact that three years after Crawford numerous states have enacted “voter ID laws and erect new barriers to voting, barriers that remind us of a time when discriminatory practices such as poll taxes, literacy tests, and grandfather clauses were commonplace and kept Americans from exercising their basic right to vote.” (Earlier this summer Attorney General Eric Holder blasted the restrictive voter ID law in Texas, saying it looked a lot like a poll tax.)

    Leahy added that these new barriers to voting fall the “heaviest on African-Americans, Hispanics, military veterans, college students, the poor, and senior citizens.”

    In a post for the Constitutional Accountability Center’s Text & History Blog, David H. Gans notes the recent federal court rulings from “judges across the ideological spectrum” applying a section of the Voting Rights Act to strike or slow implementation of some of those barriers to voting, noting their disproportionate impact on minorities. The federal courts said these measures were “designed to suppress the vote and dilute the voting power of racial minorities ….” Gans added, “These rulings provide critical new evidence of precisely why preclearance [of the Voting Rights Act] is still a much needed tool to protect the right to vote free from racial discrimination. Without the Voting Rights Act in place, African American and Hispanic voters in the states such as Texas might be denied their constitutional rights to cast a ballot on Election Day.”  

    In his opening remarks before the Senate panel, Leahy also expressed concern about the reach of the Voting Rights Act, in light of the current make-up of the Supreme Court. There is a case out of Alabama that could well find its way to the high court soon. Leahy said he was troubled that “these same five Justices, who in Citizens United disregard the evidence and a century of experience involving the power of money to corrupt elections, will soon be reviewing lower court decisions that examined significant evidence about the continuing need for the protections of the landmark Voting Rights Act. Will they show the same disregard for the evidence when reviewing this historic law? I hope not.”

    The committee heard from advocates intimately familiar with both campaign finance regulation and Voting Rights.

    University of Montana law school professor Anthony Johnstone defended during his tenure as the State's Solicitor the Corrupt Practices Act of 1912 from corporate attacks. Montana’s high court upheld the corporate campaign finance law in American Tradition Partnership, Inc. v. Bullock, but the Supreme Court summarily reversed the ruling, citing Citizens United. Justice Stephen Breyer lodged a dissent saying, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens Untied, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”

    Johnstone (pictured) told the Senate panel that in Crawford and Citizens United “the Supreme Court does not consistently apply ... approaches to judicial review. It upholds the voter identification law and strikes down the corporate campaign spending law.”