View From a Height
Commentary from the Mile High City
Tuesday, October 19, 2004

Common Cause v. Davidson 

I've finished reading through Judge Hoffman's opinion, and I'm looking forward to the day when Governor Owens appoints him to a higher post.

Judges are frequently people, too, and often they have a sense of humor. At the end of the the first day's testimony, the State suggested that things be delayed until the next morning. "One of the things to consider, your honor, is that we've got a roomful of political junkies here, and tonight is the Vice-Presidential debate."


"What can I say? Life's full of choices. Let's try to finish."

As a result, judicial opinions are generally not as dry and opaque as people suppose them to be. They are full of references and footnotes, and often it takes a trained legal mind to understand where the judge is coming from, and what he chooses to ignore. But the opinions themselves are often quite readable.

It's Common Cause's bad luck that they got assigned to Judge Hoffman. I had suspected, from the little I was able to dig up that Tuesday evening, that he was a judicial-restraint kind of guy, not given to wild theorizing, and not likely to try to invent rights and impose his own values. Lower court judges are usually restrained by their fear of being overturned on appeal. Still, the Colorado Supreme Court got fairly inventive itself in the redistricting case, which might have emboldened less conservative folks.

Judge Hoffman starts out by framing the case as one of balancing goods - avoiding disenfranchisement vs. avoiding fraud. The Constitution deliberately recognized no specific "right to vote," but the Supreme Court has gotten there, anyhow, through the 14th Amendment. Then this:

But the Court has also recognized that the right to vote, unlike some other individual rights that are exercised in essential opposition to the state, is a right that has meaning only in a highly regulated social context. A vote is not merely one individual’s casual expression of political opinion at any particular time on any particular subject. Votes count, and because they count they must be sought and given in a structured environment that allows the votes of all other proper voters to count....

Maximizing voters’ access to the process is just one part of the compelling interest the state has in regulating the architecture of elections. Preventing voters from voting more than once, preventing otherwise ineligible voters from voting, and preventing other kinds of election fraud, is part and parcel of this same compelling state interest, as the Burdick Court expressly recognized when it included the words “fair and honest” at the very beginning of its litany of state interests in structuring elections. Professor Chemerinsky had it only half right, and perhaps not even that, when, in the aftermath of the controversy of the 2000 election, he wrote “What good is the right to vote if every ballot isn’t counted?” (Erwin Chemerinsky, Fairness at the Ballot Box, 40 TRIAL—APRIL 32 (2004).) A complete description of the state’s interest in regulating elections should have included something like, “What good is the right to vote, even if every ballot is counted, if the votes of duly registered voters are diluted by the votes of people who had no right to vote?”

Yes, that Erwin Chemerinsky. "Smart guy," huh? Well, yes, since only a smart guy would rate highly enough to be quoted at all.

The relevant provisions under HAVA are 302(a), which requires provisional balloting for those who aren't on the voting roles at the precinct, and 302(b), which requires first-time voters to show ID either when registering or when voting for the first time.

The Judge then briefly summarizes the history and reasoning behind the three issues at stake: 1) not allowing provisional balloting for those who've requested an absentee ballot, 2) counting only the Presidential vote for ballots cast in the wrong precinct, and 3) requiring ID to vote. The Plaintiffs are asking to overturn all three rules on the statutory grounds that they conflict with HAVA, and the second and third on the grounds that they're unconstitutional.

The judge also points out that, although the ruling is likely to be "permanent" for purposes of this election, it is in fact calling for a preliminary injuctions, so certain other requirements must be met. You want to know what they are? Read the opinion.

The judge found that the first requirement probably does violate HAVA. Having found that, there's no need to evaluate its Constitutionality. It's enjoined. Why? HAVA 302(a) is intended to preserve the right of people not on the precinct list to vote. Congress didn't specifically exempt those who had requested absentee ballots. Nor did it suggest that states may impose their own sets of restriction. Therefore, they must be allowed to vote provisionally.

The last two do not violate HAVA. Congress invites the states to impose stricter ID requirements.

With regard to precincts, the judge basically agreed with the intervenors that Common Cause was trying to elimiate precinct voting (a jurisdiction written into the Colorado Constitution), and that this was radically at variance with what HAVA was trying to accomplish. In fact, the conference committee specifically deliberated on this issue, and came to the conclusion that it wanted to preserve precinct voting.

The Constitional claims are a little more fun. With regards to the ID requirement:

It is also not just a matter of registration fraud. Several witnesses testified that many county registration lists have not been purged for many years, and therefore likely contain the names of many deceased and otherwise no longer eligible voters. The presence of those ineligible voters’ names also raises the spectre of voter fraud.

It may or may not be true, as Plaintiffs claim, that as an historical matter actual voter fraud has been rare in Colorado. But the state has a legitimate, indeed compelling, interest in doing what it can to make sure that last month’s fraudulent or no-longer-eligible registrant does not become next month’s fraudulent voter. Ms. Davidson and local election officials testified that once a fraudulent regular ballot is cast, and the voter’s identity forever divorced from the ballot, there is no way to remedy the fraud. The fraudulent vote will count. That is, election fraud must be detected before fraudulent regular ballots are cast and fraudulent provisional ballots are counted.

That's the compelling-interest part. Here's the "chilling effect" part:

Nor do I think it likely that Plaintiffs will be able to demonstrate that the identification requirement is discriminatory or will have disparate impacts.... Plaintiffs’ suggestion that the identification requirement will “chill” people without identification may be true (though there was absolutely no credible evidence of that), but then again it may also “chill” fraudulent voters. Whether one kind of chill justifies the other is precisely the kind of public policy choice that must be made by legislators, not by judges legislating under the cover of strict scrutiny.

After all of last year's attention paid to the 9th Circus, I had forgotten that actual judicial restraint lives on.

As for the precinct requirement:

In what must surely qualify as one of the understatements of the year, even Plaintiffs’ own witness, a Denver election official, testified that allowing voters to vote in any precinct they wished “could be problematic.”

...At the moment, if I were to try to design a system that maximizes the chances that fraudulent and ineligible registrants will be able to become fraudulent voters, I’m not sure I could do a better job than what Plaintiffs are asking me to do in this case—allow voters to vote wherever they want without showing any identification.

Judge Hoffman's decision has averted one of the worst-case scenarios, one of people voting without ID in multiple precincts, possibly casting provisional ballots in multiple counties. There are still holes in the system, but not ones addressed by this case.

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