Tuesday, June 03, 2008

On Choosing the Right Guide: Crawford & The Carter-Baker Commission Revisited

Guest Blogger

Chris Elmendorf
U.C. Davis School of Law

Writing on this blog, Heather Gerken and Bob Bauer have renewed their criticism of the Carter-Baker Commission for fobbing off what they deem a crass political compromise as the judgment of an informed, distinguished, diverse, and politically independent body. Bauer has elsewhere intimated that, in his view, the luminosity of the Commission’s co-chairs blinded the Supreme Court to deep flaws in the body’s procedures and in the reasoning behind its recommendations. (The Court relied heavily on the Commission’s work in Crawford v. Marion County Election Board, the recent decision upholding Indiana’s controversial photo ID requirement for voting, which a Republican-dominated legislature had enacted on a straight party-line vote.) Gerken nonetheless musters half a cheer for the Crawford Court, arguing that judicial deference to the Commission’s bipartisan compromise beats decisionmaking founded on nothing more than the Justices’ idiosyncratic intuitions. She goes on to say that the Court would have fared better, however, if it had been guided by genuine “nonpartisan experts” rather than by an advisory body whose captains were retired public servants wearing identifiably partisan stripes.

I shall argue in this post that constitutional election law stands to benefit greatly from quasi-political guides like the Carter-Baker Commission, not just and not primarily from neutral experts. For particular instances of judicial guide-following to be defensible, though, the guide must answer the right questions and judges must make appropriate inferences from what the guide says. Neither one happened in Crawford.

An ideally neutral advisory body, comprised entirely of technicians whose fidelity to shared professional norms trumps partisan and ideological considerations, might play a useful role in constitutional litigation with respect to threshold evidentiary matters (e.g., did the district court in Crawford err in deeming the plaintiffs’ expert testimony inadmissible?), and perhaps also with respect to the more general question of what kinds of statistical evidence the courts may reasonably expect the professional community of political scientists to generate. But, precisely because it is ideologically barren, such a body would have no claim to deference concerning the ultimate reasonableness of challenged voting requirements—“reasonableness” being the gist of the constitutional standard the Court now applies in most Equal Protection and First Amendment challenges to election laws.

Reasonableness determinations require a weighing of costs and benefits, and indeed a prior judgment about what counts as a cost or a benefit. They are unavoidably normative exercises. Technical proficiency alone cannot qualify any third-party guide to make this determination for a court. But a judgment of reasonableness coming from a body co-chaired by Jimmy Carter and James A. Baker, III, and comprised of roughly equal numbers of Democrats, Republicans, and independents—none of whom held partisan office at the time of their appointment, and all of whom made some effort to become informed about the issues presented for their consideration—is prima-facie deserving of weight. Such a body, speaking substantially by consensus, might well be serviceable proxy for the considered opinion of the citizenry writ large. It is certainly a better stand-in than the views of an individual federal judge or a panel of three or nine. (Of course, the body is plausibly superior to the legislature as a proxy only regarding issues as to which elected officials are compromised by their party ties or their self interest in hobbling would-be challengers. If the body is to speak with a distinctive voice, and not merely to echo the legislative chamber, its members must have some degree of remove from the exigencies of the partisan fray.)

Many readers will think it anomalous, even bizarre to contemplate the Supreme Court deferring to a privately established advisory commission on the normative question at the heart of a constitutional case or controversy. Yet such deference—what Gerken has called following a guide—may enable the Court to decide partisan overreach cases in a reasonable manner consistent with what I take to be four otherwise irreconcilable intuitions that inform the Court’s decisions: (1) the Justices believe that a large dollop of partisan or self-serving behavior by incumbent lawmakers is okay and unavoidable, but that the Constitution must be understood to establish some outer limit; (2) the Justices think that in separating tolerable from excessive partisanship, courts should be sensitive to consequences but generally agnostic (or at least pluralistic) concerning the ultimate goods of voting, representation, etc.; (3) the Justices want to avoid conflict with the political branches whenever possible, and to maintain their status in the public eye as neutral decisionmakers; and (4) by the looks of Crawford, at least six of the Justices are now leery of creating bright-line rules to handle these cases—perhaps out of fear that the rule will be circumvented, or attacked by critics as “judicial legislation,” or require abandoning normative agnosticism/pluralism, or entail too much foresight in the crafting.

I don’t see how the Court can decide cases in a manner that honors all of these intuitions except by deferring to the judgment of a suitable guide. Otherwise, something important has to go. In Vieth v. Jubelirer, the partisan gerrymandering case, what went was the enforceable outer limit; in Crawford, it was neutrality (in the sense that the “standard” the plurality established opens the floodgates to standardless as-applied litigation in which judges will probably divide on partisan lines).

Because a normative guide could enable to the Court to square the circle of its constitutional election law jurisprudence, it is no surprise that the Justices in Crawford were very interested in the Carter-Baker Report. But the use they made of it was seriously inappropriate.

The Report shows that a reasonably diverse cross section of reasonably informed observers who lacked the immediate dependencies of elected party members could and did agree, by substantial supermajority, that it would be reasonable to phase in a photo ID requirement for voting in combination with several other “pillars” supporting fair election administration. These include state-led voter registration that “produces complete, accurate, and valid lists of citizens who are eligible to vote”; “[m]easures to encourage and achieve the greatest possible participation in elections by enabling all eligible voters to have an equal opportunity to vote and have their vote counted”; and nonpartisan election administration. Carter-Baker Report, at 6 (my emphasis).

The glaring flaw in the Crawford plurality’s (per Justice Stevens) use of the Carter-Baker Report is that it employs the Report as a weight on the state-interest side of the balance, while disregarding the Report’s equal though limited relevance to the voter-interest side of the scales. One can infer from the Report that some Commissioners believed a photo ID requirement could do some good in building public confidence and/or preventing an unknown but probably small amount of fraud, but it is equally plausible to infer that the some Commissioners thought the downside risk of disenfranchisement was not trivial (or else why would the final Report have included the phase-in recommendation, and have tied voter ID to state provision of free IDs, state-led voter registration, etc.?). The Report’s conclusion that a particular package of reforms would be reasonable and indeed desirable tells us nothing about whether the Commissioners would think it reasonable to implement one part of the package without the others. At root, the big flaw in Stevens’s opinion is not turtles-all-the-way-down reliance on an advisory commission report with doubtful evidentiary foundations, but rather that Stevens played smoke and mirrors with the very idea of following a guide. It is reasonableness determinations that the Court should be looking for and deferring to, not third-party assessments of one side of the balance or the other.

Justice Breyer, unlike Stevens, was on the mark in that he deferred on both sides of the scale, but his opinion—arguing that the Indiana ID law should have been struck down because it did not include certain accommodations recommended by Carter-Baker—rests on a logical fallacy. It does not follow from the proposition “X is reasonable” that “not-X is not reasonable,” yet that is the move that Breyer makes. Breyer’s inferential problem is worse yet if one thinks the Court should be looking for a supermajoritarian guide to (un)reasonableness. Again, the Carter-Baker Commission agreed by supermajority that a certain combination of reforms would be good policy, which is very far removed from a supermajortiarian conclusion that a state’s adoption of one of those reforms—without a key accommodation (phase in), and without the rest of the package (state-led registration of all eligible voters)—would be unacceptably bad policy. We can only guess at what the Commission would have said about that.

* * *

Here, then, are two suggestions for philanthropic foundations and others in the business of sponsoring Carter-Baker-like bodies. First, your commission will prove more useful as a guide for courts doing constitutional election law adjudication if it sets out to establish minimum-acceptability standards for high-controversy reforms, rather than to issue a full suite of best practices recommendations. This is not to criticize Carter-Baker for pursuing the latter tack, but only to suggest that the type of recommendation that is most useful for a good-government minded legislator (or voter) is not the same as the kind that is most useful for a judge trying to draw a line between acceptable partisanship and partisanship that has reached what Justice Souter would call an extremity of unfairness.

My second recommendation is more ambitious and less obvious: make the body permanent. An ongoing body would be positioned to issue reports and recommendations concerning emergent high-controversy reforms in particular states (e.g., Indiana’s voter ID requirement). It could assimilate new data as it becomes available, and update standards accordingly. And it would be the site of continual lobbying by political partisans as well as technical experts, with its responses subject to public evaluation and critique. Over time, the body’s reputation—its brand—should come to depend much more on its track record of performance than on the radiance of its chairpersons.

No doubt one can also quibble with the method by which the membership of the Carter-Baker Commission was chosen. But that is a subject for another day. And given the guesswork involved in any such selection exercise, the conveners of the Carter-Baker Commission probably should not be faulted for the path that they chose.


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