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The Confidence Fairy v. John Roberts (circa Apr. 2, 2014)

UPDATE: Wow. That tree limb I walked far out onto in my post below turned out to be sturdy after all.  A postscript is added below.

Update posted 10/9 at 10:45 p.m.

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There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo424 U. S. 1, 26-27 (1976) (per curiam). At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___ (2011) (slip op., at 24-25).

McCutcheon v. FEC, Chief Justice John Roberts, Apr. 2, 2014

Thus did the Supreme Court hold, finally and unequivocally, that the right to vote is a fundamental one guaranteed to American citizens who have attained the age of 18, as prescribed in the Twenty-sixth Amendment.

Which is nice, because although the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth and Twenty-sixth amendments to the Constitution refer to “the right” of citizens “to vote,” and appear to presume that that right is one conferred by the Constitution rather than by, say, your county’s elections commission or even your state’s legislature, Justice Scalia began claiming well more than a decade ago that no such constitutional right exists, because, he says, “we” (meaning a majority of justices in a single case) have never pronounced the franchise a constitutional right.  Scalia first asserted this publicly in late 2002, during argument in Bush v. Gore, and has reiterated it occasionally through the years in speeches and interviews.  His effort bore fresh fruit in June 2013, in a case called Shelby County, Ala. v. Holder, when he and four of his colleagues formally adopted that pronouncement as a prerequisite to their voiding a key section of the Voting Rights Act in that opinion.  See, longstanding Supreme Court jurisprudence holds that under the Fourteenth and Fifteenth amendments, states can’t infringe upon the constitutional rights of individuals—at least if the Supreme Court has pronounced the constitutional right at issue a “fundamental” one—unless the infringement passes a rigorous test known as “strict scrutiny.”

The beauties of “strict scrutiny” scrutiny are that the infringement must serve a compelling governmental interest and must be as narrowly tailored so as to infringe no further than necessary to accomplish that purpose.  And the government bears the burden of identifying a particularized harm and a compelling governmental interest in addressing it, and in establishing that the remedy instituted is the narrowest possible and does not infringe on rights that are not necessary to address the compelling interest. Normally—i.e., at least until now—that has required the state to provide, in response to a court challenge, some actual evidence of a particularized harm, as well as a compelling governmental interest in addressing that, and show that the remedy instituted is the narrowest possible and does not infringe on rights that are not necessary to address the compelling interest.

Not all constitutional rights are “fundamental.”  Cornell University’s Legal Information Institute explains:

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment.  These rights are specifically identified in the Constitution (especially in the Bill of Rights), or have been found under Due Process.  Laws limiting these rights generally must pass strict scrutiny to be upheld as constitutional.  Examples of fundamental rights not specifically listed in the Constitution include the right to marry and the right to privacy, which includes a right to contraception and the right to interstate travel.

That’s a bit out-of-date, of course, because these days a fundamental right is one that Justice Kennedy says is one, and Kennedy has repeatedly made clear that he believes that states have a constitutional right to violate individuals’ constitutional rights, including Fourteenth Amendment equal protection rights, since states are people, my friend, although there are certain exceptions to that, such as, well, state-law restrictions on campaign financing.

Rights that the Supreme Court has not pronounced fundamental may be infringed if the government has a “legitimate governmental interest” in furthering; i.e., if there is a “rational basis” for the infringement.  And it is the statute’s or policy’s challenger who bears the burden of showing the absence of any rational basis.  Good luck.  That explains, somewhat, what happened in Crawford, which enunciated a sort of middle-between-rational-basis-and-strict-scrutiny standard, and presumptively kept the burden of proof on the challengers.  But Kennedy has now said, by signing onto the opinion in McCutcheon written by Roberts—who has changed his mind since he wrote that opinion in Shelby County in June 2013—that the franchise is, after all, a constitutional right accorded to human individuals.  It’s a basic right—one to which there is no right more basic.  It is, in other words, at least presumably, a fundamental right.  And infringements of that right are subject to strict scrutiny.

Which means that the states that have enacted voter ID laws that will disenfranchise citizens within that state, at least in the upcoming election because of the chaos created by (very) late court orders—say, court orders issued only a few weeks before the November election, lifting lower-court injunctions that had barred enforcement of the statute in that election—must, in light of McCutcheon, meet the burdens of strict-scrutiny analysis.

Or they would, if only the challengers—including the ones currently challenging Wisconsin’s voter ID law, in a case called Frank v. Walkerwould this point out: McCutcheon, as well as Citizens United v. FEC, the Kennedy-authored opinion which McCutcheon parleyed, both were issued after Crawford v. Marion County, Ind.

Crawford is the 2008 Supreme Court opinion upon which these states—and exactly half the members of the Seventh Circuit Court of Appeals, the federal appellate court for Illinois, Indiana and Wisconsin—base their claim that voter ID statutes pass constitutional muster.  At issue in Frank is the constitutionality of the Wisconsin voter ID law that Gov. Scott Walker pushed through the state’s legislature roughly three minutes after he and the newly-elected Republican legislative majorities were sworn into office in January 2011.

Monday’s opinion in Frank was issued by the three judge appellate panel originally assigned to the case, and was the culmination of an unusual month-long procedural odyssey that included an oral argument to that panel on Sept. 12 and a three-paragraph emergency order issued by that panel late that day dissolving a stay of enforcement of the statute that was put in place several months earlier by a federal trial judge in Madison.  The order said that a full opinion would be forthcoming.  But before that opinion came forth, the statute’s challengers filed what’s known as an en banc petition—a petition asking that the panel’s order be dissolved and that that appellate court’s full membership of 10 judges hear the case.  That petition was denied on Sept. 30, on an even-split vote. Last Thursday, the statute’s challengers filed an emergency petition with the Supreme Court requesting a stay of the appellate court’s order lifting the stay.

The identified author of Monday’s opinion is a Reagan appointee and Federalist Society leading light who reportedly was recommended to Reagan White House Counsel Edwin Meese by Antonin Scalia. His two concurring panel colleagues areGeorge W. Bush appointees.  Walker’s in a very close reelection bid—a bid in which the polls following the final ruling by the full Seventh Circuit Court late last month began showing him pulling ahead.  The “likely voter” pool now is limited to people who already have a statutorily-approved photo ID or the documents necessary to obtain one.  No one born in a rural home in Mississippi during the Great Depression need apply for a ballot.  Especially if that person is, say, black and no longer drives or never did.

Nor travels to Canada.  Which not all Wisconsinites do–the state’s proximity to the border notwithstanding.  Although that surely is what the opinion’s author had in mind when he noted in the opinion that a special state-issued photo ID or a passport is needed, to travel to Canada and return to the United States. (He also might have had in mind the need to rush the opinion out in light of the challengers’ Supreme Court filing of that emergency petition for stay of the ruling last Thursday, although that’s just a guess.) But in case the reference in his opinion to the need for a state- or federal-government-issued-photo-ID-to-visit-Canada point doesn’t nail it for his side, that judge also said you need a state-issued photo ID to board an airplane.

Which you don’t, in this country, although many elderly people born in the rural South and now living in Wisconsin are known to vacation regularly in Israel, so maybe that’s what he has in mind.  He also wrote that you need a state-issued photo ID to pick up a pharmaceutical prescription at your neighborhood pharmacy, which also is not accurate, although you probably do need some form of ID in order to pick up a prescription for narcotic pain killers and certain psychotropic drugs.

I’ll refrain from jokes about which of the latter this judge uses, and whether he needs a change in medication, since mental illness is not funny.

To me, the opinion has the feel of desperation to justify its result, and although it seems throughout most of it to be leading inexorably toward one particular justification—the one that the credited author advanced at oral argument, if a Milwaukee Journal Sentinel reporter’s account is accurate (I haven not read the argument transcript)—it ultimately rests for its justification on another, somewhat contradictory one. In his report on the argument, published online shortly after the argument’s conclusion, Journal Sentinel reporter Patrick Marley quoted the Scalia-protégé judge as saying, “He took evidence and found the Supreme Court was wrong!”  The “He” is District Judge Lynn Adelman, a liberal Clinton appointee and the trial judge who had issued the injunction.  The exclamation mark is mine; I added it.  The problem is that Crawford did not find voter ID statutes constitutional irrespective of the evidence presented to a trial court showing a resulting disenfranchisement of citizens qualified to vote.  Three justices—Scalia, Thomas and Alito—in a concurring opinion written by Scalia, urged that result, but the remaining justices, including the majority opinion’s author, explicitly rejected it.

Okay, so this federal appellate judge of nearly three-decades’ duration, this a leading intellectual light of the Conservative Legal Movement, thinks a largely evidence-based Supreme Court ruling is a categorical law-based preclusion of later evidence-based trials invoking the same legal issues.  We’ll take his word for that.  (Actually, I do.)

But apparently sometime in the hours after the Sept. 12 oral argument, the Scalia protégé’s two Republican panel members pointed that out.  Late that day, the panel issued an emergency three-paragraph order lifting the stay and allowing the voter ID law to be implemented for the November election. But the order relied entirely upon a fact.  A new fact, in fact—one that occurred after Adelman had issued his stay: The Republican-controlled Wisconsin Supreme Court, in a ruling on July 31, 2014, in another case, Milwaukee Branch of NAACP v. Walker,* had effectively altered the statute to require that the state assist people, financially and logistically, to obtain the necessary documentation and the state ID. This could not be accomplished by November, but, in what appears to be in direct contravention of a 2004 U.S. Supreme Court opinion, Purcell v. Gonzalez, that prohibits major changes to voter registration and voting requirements and procedures shortly before an election, the federal appellate panel lifted the stay.

That order did not mention Purcell nor the issue of shortness of time.  Crawford must be rigidly interpreted rigidly, see, but Purcell need not be interpreted at all, or even mentioned.  But the full opinion issued Monday, of necessity, did.  The emergency order had been roundly pilloried for casually lifting the stay without addressing the issue of the proximity to the November election, and the challenger’s emergency petition to the Supreme Court of course dealt at length with this issue.  The panel’s answer: Forget that legal challenges to the statute have been ongoing almost since the statute was enacted in 2011.  And forget that the Wisconsin Supreme Court had effectively amended the statute in July, less than four months before the election, to require that the state take certain actions that could not even conceivably be completed before the election. The statute was enacted more than three years ago, for heaven’s sake!  That was plenty of time to “scrounge”—the Scalia protégé’s word; seriously—up out-of-state or foreign birth certificates (including the money to pay for them) and the ride over to the nearest DMV.

Sometimes, it takes much less time than three years to scrounge up something you really need, or really want.  A mere four weeks after floating that “He took evidence and found the Supreme Court was wrong!” trial balloon, and after seeming in paragraph after paragraph to revive it in the final opinion, this judge (apparently with assistance from his panel colleagues) was able to scrounge up a new excuse: what matters is voter confidence in the integrity of elections.  Or what my idol Paul Krugman would call … the Confidence Fairy.

Sure, there’s no actual evidence of voter-impersonation fraud in Wisconsin.  But some Wisconsin citizens believe there is rampant voter-impersonation fraud in Wisconsin.  And that belief undermines their confidence in the integrity of the electoral process, and might dissuade them from voting.

But McCutcheon holds expressly that belief alone cannot justify upholding the statute that infringes upon political speech.  Which is what McCutcheon says voting is. McCutcheon pancakes what formerly had been two separate, and separately protected, concepts: actual corruption and the appearance of corruption, both of which the Court had held throughout the preceding 40 years or so justify statutory restrictions on campaign donations. McCutcheon holds that only actual corruption can create the appearance of it.  A Supreme Court ruling that nonetheless permits state voter ID laws to infringe upon the right to vote, absent a showing by the state that voter-impersonation fraud exists and objectively—i.e., actually—undermines the integrity of elections, would be beyond-the-pale partisan manipulation by a bare majority of the Court.  Which is not to say that that’s not a possibility. It is a possibility.  But I’ll come close to very edge of the tree limb I’m on and predict that the Court will stay the Wisconsin statute until after the November election.  Luckily, my healthcare insurance policy covers orthopedic surgery to repair broken bones.

Crawford’s six-justice majority noted that the State of Indiana had failed to produce evidence of voter-impersonation fraud, and no one (to my knowledge) has disputed the accuracy of the Court’s claim. That’s probably because apparently no evidence existed.  The outcome in Crawford relied instead upon a claim the unfounded belief among some voters that voter-impersonation fraud is rampant is itself the justification for upholding the voter ID statutes, because these people lose faith in the legitimacy of the voting process and consequently may decide not to vote.  The state has a legitimate interest in encouraging voting.  Ergo, the belief itself sufficed as justification for the Court to uphold the statute.  In 2008, the Supreme Court had not yet pronounced the right a fundamental constitutional right.

Now, six years after Crawford, there are, according to an apparently thorough recent research, exactly 31 documented instances of voter-impersonation fraud.  In other words, for Wisconsin, North Carolina, and other Tea Party-captured state governments, it’s the Confidence Fairy or bust.  And McCutcheon, at least taken at face value, indicates a bust.

McCutcheon does not clarify whether the right to vote is a basic constitutional right independent of the First Amendment’s speech clause or instead is a basic constitutional right emanating from the First Amendment’s speech clause.  But that doesn’t matter. Voting is speech.  Y’know, just like giving a huge donation to a party, candidate or Super PAC is speech.  The latter is speech of such importance in a democracy that, McCutcheon actually says, the speaker—the donor—must be considered a “constituent” of the officeholder once he or she wins the election, irrespective of how far from that new or reelected member of Congress’s state or district the donor lives.  (Seriously; McCutcheon actually says that.)  And if some people are less likely to vote if they lack confidence that in the integrity of the political process and the political system—that is, if they decide not to vote because they themselves can’t afford to buy the status of constituent from even their own senators or House representatives, much less from ones representing states and congressional districts where neither their main home nor their vacation home is located—so be it. Speech is speech.  And this is a democracy.

McCutcheon, it certainly seems to me, killed the Confidence Fairy. A war veteran, it deserves a decent burial at Arlington National Cemetery.

And Democrats, especially those of us who think of ourselves as constituents of our own members of Congress without first purchasing that status, and have been rapidly losing confidence in the integrity of elections, will attend the funeral. But first there must be a death certificate issued.

*Name of case, and specific date of decision, added. 10/11

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POSTSCRIPT:  The order issued tonight by the Supreme Court reads in full:

The application to vacate the September 12, 2014 order of the United States Court of Appeals for the Seventh Circuit presented to Justice Kagan and by her referred to the Court is granted and the Seventh Circuit’s stay of the district court’s permanent injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari respecting case Nos. 14-2058 & 14-2059. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court

JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.

There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted. But this Court “may not vacate a stay entered by a court of appeals unless that court clearly and ‘demonstrably’ erred in its application of ‘accepted standards.’” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U. S. ___, ___ (2013) (slip op., at 1) (SCALIA, J., concurring in denial of application to vacate stay) (quoting Western Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O’Connor, J., in chambers); some internal quotation marks omitted). Under that test, the application in this case should be denied.

Yes, under that test, the application in this case should have been denied.  But there’s a new test now: This Court may vacate a stay entered by a court of appeals that stayed a stay entered by a lower court. Frank v. Walker, on application to vacate stay, No. 14A352 (Oct. 9, 2014).

What an asinine comparison.  The appellate-court stay in the Planned Parenthood case served the purpose of preserving the status quo in order to prevent irreparable injury from implementation of the statute.  In this case, Frank v. Walker, the appellate-court stay was of a trial-court stay whose purpose was to prevent irreparable injury from implementation of the statute.  The trivialization, by that trio of justices, of the right of the franchise, and of the outcome of the election itself, is disorientingly weird.

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A Wisconsin federal judge today struck down as unconstitutional that state’s voter-ID law, ruling that the appearance of voter fraud, just like the appearance of political corruption, can’t justify impeding the First Amendment right to vote.

In a close and insightful  reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:

“There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.”

— Former Obama White House Counsel and eminent Washington election-law attorney Bob Bauer, on his blog moresoftmoneyhardlaw.com, Apr. 24

Bauer sums up:

While disclaiming “naiveté” about the Roberts Court’s commitment to the interests of voters, Marty asserts that if “taken seriously,” this freshly minted right to participate could “be the source of a new flourishing of voting rights and other election-related rights.”

Eminent and esteemed though they are, Bauer and Lederman are late to a party.  Specifically, my party. On Apr. 3, a day after McCutcheon was issued, I pointed out right here on this popular and acclaimed blog what “the REAL news from the McCutcheon opinion” is:

“There is no right more basic in our democracy than the right to participate in electing our political leaders.”  That’s how Roberts began the opinion.

So I guess we can now assume that the Court will strike down all those voter-ID laws that so clearly impact that most basic of rights, and will do so by unanimous vote of the justices.

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