HH: That music means I am joined by the Smart Guys – John Eastman, my colleague at the Fowler School of Law at Chapman University School of Law, where he teaches Constitutional Law as the dean emeritus, Erwin Chemerinsky is the dean of the University of California, Irvine School of Law, John a man of the right, Erwin a man of the left. Together, we’re looking at the Wisconsin decision yesterday which I began the show with Craig Engle of Arent Fox talking about how this issue is all over the country. Erwin, what has the Supreme Court said about voter identification laws?
EC: The United States Supreme Court in 2008 in the Crawford V. Marion County, Indiana case said that the laws that required voter identification did not violate equal protection. Now that was done based on the record, and it was a pretty thin record at that time. What makes yesterday’s district court decision different in Wisconsin is there’s a much more developed record than there was in Indiana. So, for example, yesterday the district court found that there was absolutely no voter impersonation occurring in Wisconsin, and it’s exceedingly unlikely that voter impersonation would be a problem in Wisconsin for the foreseeable future. That factual finding makes this case different from the Indiana one. Also, the judge here found that the requirement for photo ID violates the Voting Rights Act, because there’s a racially discriminatory impact. That issue was not before the Supreme Court at all.
HH: John Eastman, a similar case, Engle pointed out, Craig Engle pointed out at the beginning of the show, in Tennessee, went the other way. His worry is that these are becoming non-legal, but political decisions based upon emotions and convictions and party affiliation.
JE: Well, the challenge to the Wisconsin law had already been tried in state court, and two different state courts went opposite directions. And the one that held that the law was unconstitutional was reversed on appeal. And basically, the same Constitutional challenges are pending before the state supreme court as well. I think that there’s much more a binding precedential force of the Indiana case than Erwin credits. The fact that the state was not able to demonstrate evidence that voter fraud had actually occurred doesn’t mean that they have a legitimate concern about it. And there is no evidence on the other side that in fact people are being prevented from voting as a result of these laws. And that was critically important in the Supreme Court’s Indiana decision.
HH: And let’s go back to that, Erwin. Engle said as he looked at the record, neither side had evidence. The legislature passed a prophylactic statute to prevent voter fraud. There was no evidence, you’re absolutely correct, in the record before the court, it says, of any actual cases of voter fraud, nor was there evidence that there was an inability to obtain identification necessary to vote. Indeed, Engle said, people have to register with identification. So how is the Supreme Court going to get away from the idea that every precedent they issue isn’t a precedent if every set of facts is different?
EC: Well, let’s start with the issue that was not before the Supreme Court in 2008, and that’s whether the requirement for photo ID violates Section 2 of the Voting Rights Act, which prohibits state and local governments from election practice systems that discriminate against minority voters. I think all three of us would have to agree that just wasn’t an issue in that case, and so the Supreme Court’s going to ultimately have to resolve that. And in fact, the 9th Circuit, in a case involving Washington State, came to a similar conclusion. But other circuits have come to opposite conclusions. Only the Supreme Court can resolve that. Now as the issue of equal protection and photo ID, I think there’s a real question of to what extent does Indiana’s, the decision in Indiana and Crawford mean, that there always can be photo ID laws? Or does it mean when there’s specific factual findings, unlike Indiana, it’s a different case? There was no majority opinion in the Indiana case. There was a 3-3-3 split of the justices. So I think that this is an issue that’s going to come back to the Supreme Court.
HH: John Eastman?
JE: Yeah, no, like I said before, I think it has more binding force than Erwin’s crediting. And the fact of the matter is that the trial court judge here did not find that there was any barrier to voting as a result. To say that therefore there is a discriminatory impact, and that therefore there is a violation of the Voting Rights Act, an issue that the Supreme Court didn’t decide in the Crawford case, I think is rank speculation on the part of this district court. The second thing is whether you can even have disparate impact claims under the Voting Rights Act in light of other Supreme Court recent precedent is an open question. So it would be nice for the Court to at least take one of these cases and resolve that question. The Constitution is not violated with a disparate impact action by the government. It’s only by willful discrimination.
HH: Now we all three of us know that judges come out of somewhere. This particular judge had served eight years in the Wisconsin State Senate as a Democrat, had run three times for Congress as a Democrat, and so Republicans instantly think oh, my gosh, he’s striking down a Republican law signed by a Republican governor after an upheaval in Wisconsin that everybody knows about. Erwin, are you concerned, not with this judge, I’m not calling into question his ethics or this, but that every one of these decisions is going to be seen through the prism of politics?
EC: We are at a time when decisions are always seen through that prism, and it’s always easy when you disagree to say see, it’s because this judge was appointed by Republican president, or this judge was appointed by a Democratic president. And when you agree with it, of course, it wasn’t a partisan decision, it’s just correct as a matter of law. Let’s just be honest and say obviously what a judge thinks is a product of what his or her background is. I’m not going to deny that for this judge or for judges appointed by Republican presidents, either.
HH: John Eastman, that leads us to November. There are 14 United States Senate races. You know, I was talking with Engle, the people are gearing up already to fly in lawyer teams. The best political lawyers in the country are being put on retainer already by various campaigns. We are litigating elections now, and I know this isn’t new, but man, it’s metastasizing.
JE: Well, it has, and look, let me even go back to the differential on judicial rulings. The act of judging used to be seen more as a science than an art, and certainly not a political art, that there were doctrines that were well-established, and the presumption was a faithful application of those doctrines in the application of the law would lead even judges of different political views to the same outcome in most cases. That’s no longer happening, and it is a real threat to the independence of the judiciary, because if the judiciary is going to act politically, then the political process for approving them is going to be more intense. We’ve seen that happening in the Senate confirmation process. I think it’s a real troubling aspect of our modern judiciary as well as the process that we take to put people on the bench.
HH: And so…
EC: Can I respond to that?
HH: Oh, please.
EC: Because I think it is completely wrong historically. Throughout history, it’s been true that the conclusions that judges come to is a product of their views and their life experience. During the Lochner era in the early 20th Century when the Supreme Court was striking down progressive labor and consumer protection legislation is because there was a conservative bench there. And then when the Supreme Court upheld all the New Deal legislation ultimately, it’s because they were Roosevelt’s appointees. And the Warren Court came to its conclusions because of who was there, and the Roberts Court comes to its conclusions because of who’s there. Bush V. Gore, when you’re talking about elections, was entirely a product of who were the justices and what was their ideology. This isn’t new. In the 19th Century, 20% of presidential picks for the Supreme Court were rejected by the Senate, almost all on ideological grounds. It’s just ahistorical to say oh, it’s different today.
HH: Last word to you, John Eastman.
JE: Yeah, no, what’s different today is judges are not even following the veneer of trying to faithfully apply the law. Even the rhetoric in the decisions has become much more political in its pronouncement, and I think that’s a problem for our understanding of the judiciary.
HH: Erwin Chemerinsky, dean at the University of California, Irvine Law School, John Eastman, dean emeritus at the Fowler School of Law at Chapman University, we’ll be talking about election law cases a lot between now and November, and boy, are there going to be a lot of them come November. Thank you, gentlemen.
End of interview.