AMERICAN CIVIL LIBERTIES UNION, NM v. Santillanes, 546 F.3d 1313, 10th Cir. (2008)
AMERICAN CIVIL LIBERTIES UNION, NM v. Santillanes, 546 F.3d 1313, 10th Cir. (2008)
Elisabeth A. Shumaker
Clerk of Court
No. 07-2067
Michael Garcia, Assistant City Attorney (Robert M. White, City Attorney, Robert
D. Kidd, Paula I. Forney, and Mark Shoesmith, Assistant City Attorneys of City
of Albuquerque, with him on the briefs), Albuquerque, New Mexico, for
Defendant - Appellant.
Charles K. Purcell (Andrew G. Schultz of Rodey, Dickason, Sloan, Akin & Robb,
P.A., and George Bach of American Civil Liberties Union of New Mexico,
Albuquerque, New Mexico, with him on the briefs), Albuquerque, New Mexico,
for Plaintiffs - Appellees.
Sidney S. Rosdeitcher and J. Adam Skaggs of Paul, Weiss, Rifkind, Wharton &
Garrison, L.L.P., New York, New York, Wendy R. Weiser and Justin Levitt of the
Brennan Center for Justice at New York University School of Law, John W. Boyd
of Freedman, Boyd, Daniels, Hollander, Goldberg & Ives, P.A., Albuquerque,
New Mexico, for Amici Curiae.
then entered a final order declaring the amendment unconstitutional and enjoining
the City and its agents from enforcing the amendment in future elections. ACLU
v. Santillanes, 506 F. Supp. 2d 598, 645-46 (D.N.M. 2007); Aplt. App. 711. After
the district court entered its final order, the Supreme Court decided Crawford v.
Marion County Election Board, 128 S. Ct. 1610 (2008), significantly clarifying
the legal landscape. Our jurisdiction arises under 28 U.S.C. 1291, and we
reverse.
Background
In October 2005, the voters of Albuquerque approved an amendment to the
Albuquerque City Charter to require photo identification for in-person voters in
all municipal elections. See Albuquerque, N.M., City Charter, art. XIII, 14 (as
amended Oct. 4, 2005); Aplt. App. 121-24. As stated in the City Council bill
submitting the amendment to the voters, the purpose of the amendment is to
prevent voter fraud, specifically identity impersonation at polling locations. Aplt.
App. 121-22. The amendment provides numerous examples of acceptable forms
of photo identification: any card issued by a government agency, drivers
license, student identification card, commercial transaction card such as a credit
or debit card, insurance card, union card, a professional association card or the
voter identification card issued by the City Clerk. Aplt. App. 122. If a voter
does not have an identification card, the amendment provides that a voter may
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protection challenge. Crawford, 128 S. Ct. at 1613-15. The Indiana law required
all in-person voters to present a government-issued photo identification. In the
lead opinion, joined by Chief Justice Roberts and Justice Kennedy, Justice
Stevens rejected the facial challenge to the law. Justice Stevens reaffirmed the
Courts earlier decisions, including Burdick v. Takushi, 504 U.S. 428 (1992),
which held that the appropriate standard for evaluating constitutional challenges
to a regulation affecting the right to vote is to balance the restrictions imposed by
the regulation against its justifications. Crawford, 128 S. Ct. at 1616. In a
concurring opinion joined by Justice Thomas and Justice Alito, Justice Scalia held
that any burden imposed by the photo identification law was minimal and
justified without regard to any individual effects of the provision on certain
voters. Id. at 1624. According to Justice Scalia, the law is a generally
applicable, nondiscriminatory voting regulation, and [t]he burden of acquiring,
possessing, and showing a free photo identification is simply not severe in
comparison to the usual burdens associated with voting. Id. at 1625, 1627.
Nevertheless, under Justice Stevenss opinion, the Court balanced the asserted
injury to the right to vote against the precise interests put forward by the State as
justifications for the burden imposed by its rule. Id. at 1616. (internal quotation
marks omitted). After a detailed weighing of the burdens imposed by the law, the
justifications for the law, and the accommodations made for particularly situated
voters, Justice Stevens held that the burden of presenting photo identification at a
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polling place imposes only a limited burden on voters rights, id. at 1623
(quoting Burdick, 504 U.S. at 439), and that the justifications for Indianas law
were both neutral and sufficiently strong to uphold the law. Id. at 1624.
Discussion
We review a district courts grant of summary judgment de novo, applying
the same standards as the district court. Timmerman v. U.S. Bank, N.A., 483
F.3d 1106, 1112-13 (10th Cir. 2007). Summary judgment is appropriate when
the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c). We view the
facts in the light most favorable to the nonmoving party. Scott v. Harris, 127 S.
Ct. 1769, 1774-75 (2007).
On appeal, the City argues that the district court erred in holding: (1) that
the Plaintiffs had standing to challenge the voter identification law, and (2) that
the law violates equal protection. Concerning the second argument, the City
argues that (a) the law properly distinguishes between in-person and absentee
voters, (b) the district court erred in applying a heightened standard of review, (c)
the current valid photo identification requirement is not unconstitutionally
vague, (d) the Help America Vote Act (HAVA) and the 2005 amendments to New
Mexicos election code concerning voter identification do not conflict with the
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law, (e) the City was not required to show that the State failed to comply with
HAVA prior to imposing the law, and (f) the district courts other justifications
should be rejected.
I. Standing
Standing is part of Article IIIs case or controversy requirement. An
individual plaintiff must meet three elements to establish standing: (1) injury in
fact, (2) causation, and (3) redressibility. Davis v. Fed. Election Commn, 128 S.
Ct. 2759, 2768 (2008). A plaintiff must have suffered an injury in fact, defined
as the invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation
marks and citations omitted). A plaintiff must also show a causal connection
between the injury and the conduct. Lujan, 504 U.S. at 560. And finally, a
plaintiff must demonstrate that it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision. Id. at 561
(internal quotation marks and citations omitted). An organizational plaintiff must
additionally demonstrate that its members would otherwise have standing to sue
in their own right, the interests at stake are germane to the organizations
purpose, and neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. Friends of the Earth, Inc., v.
Laidlaw Envtl. Svcs. (TOC), Inc., 528 U.S. 167, 181 (2000).
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rule. Crawford, 128 S. Ct. at 1616 (internal quotation marks omitted). The City
raises several arguments for why the district court erred in holding that the law
violates equal protection. We address each argument in turn.
A. The law properly distinguishes between in-person and absentee voters
The City first argues that the law properly distinguishes between in-person
and absentee voters. Although the district court ostensibly restricted its equal
protection analysis to the treatment among in-person voters, 506 F. Supp. 2d at
631, it also found that the risk of impersonation was far greater with absentee
voting procedures and that tended to undermine the Citys rationale for the
measure, id. at 639. Plaintiffs contend on appeal that the Albuquerque law
creates an arbitrary distinction between in-person and absentee voters by only
requiring in-person voters to present photo identification. They argue that
because any registered voter in Albuquerque may choose to vote absentee, N.M.
Stat. 3-9-3(A) (1999), unlike Indiana where only certain classes of individuals
are eligible to vote absentee, there is greater opportunity for mischief creating a
greater need to treat all voters alike. Aplee. Supp. Br. at 7. Further, Plaintiffs
argue that absentee voters who ultimately present their ballots in-person will not
be subject to the photo identification requirement. Aplee. Supp. Br. at 8.
Plaintiffs claim that such different treatment of absentee persons who vote inperson from non-absentee in-person voters is without justification. We must
disagree.
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absentee voters who ultimately cast their ballot in-person differently than nonabsentee in-person voters. Aplee. Supp. Br. at 8. The law clearly applies to all
in-person voters at polling locations, and therefore we read the law to require any
person, including a voter who applied for an absentee ballot but later votes inperson due to not receiving an absentee ballot, to present photo identification.
Further, individuals who obtained an absentee ballot and merely arrive in-person
to drop off the ballot at the city clerks office have already subjected themselves
to the separate absentee voter procedures necessary to confirm the voters
identification.
Additionally, we recognize that states have wide latitude in determining
how to manage election procedures. See Buckley v. Am. Constitutional Law
Found., Inc., 525 U.S. 182, 191 (1999) (States...have considerable leeway to
protect the integrity and reliability of . . . election processes generally.). States
may also take reform one step at a time, and need not cover every evil that
might conceivably [be] attacked. McDonald v. Chicago Bd. of Election
Commrs, 394 U.S. 802, 809 (1969) (internal quotation marks omitted). The
Albuquerque law is intended to target in-person voters and not all voters, and
because there are clear differences between the two types of voting procedures,
the laws distinction is proper.
B. Standard of review
The City next argues that the district court erred in applying a heightened
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standard of review. The district court, after a lengthy discussion of the potential
application of rational basis or strict scrutiny review, settled on the intermediate
scrutiny standard established in Burdick v. Takushi. See Santillanes, 506 F.
Supp. 2d at 626-30. Although we find that the district court did identify the
proper test as was confirmed in Crawford, we also find that the district court erred
in its application.
1. Application of the Burdick test
Crawford confirmed that we must weigh the burdens imposed by a law
affecting a persons right to vote against the justifications supporting the law.
Crawford, 128 S. Ct. at 1616. Following Crawford, it appears that Justice
Stevenss plurality opinion controls, a position advocated by the Plaintiffs in the
present case because it is the narrowest majority position. Few commentators
have analyzed the decision; however, some district court opinions analyzing
similar laws have followed Justice Stevenss approach. For example, in Ray v.
Texas, No. 2-06-CV-385, 2008 WL 3457021, at *1 (E.D. Tex. Aug. 7, 2008), the
Eastern District of Texas upheld a Texas law regulating the use of witnesses who
assist absentee voters in filling out absentee ballots. Interpreting Crawford as
requiring specific proof of how a burden imposed by a regulation actually
impacts a given class of voters, the court found that the Plaintiffs had no specific
evidence indicating how the Texas law would negatively affect ones right to
vote. Id. at *5. Because the Supreme Court in Crawford reaffirmed the right of a
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In reaching this conclusion, the district court relied on Buckley, 525 U.S.
182. Buckley involved a Colorado ballot initiative requiring all individuals
circulating initiative petitions prior to an election to wear identification badges,
be registered voters, and be reported to the state. Id., at 186. Buckley, however,
involved matters of core political speech, id., and was thus a First Amendment
challenge, not an equal protection challenge to a persons right to vote, id. at 18687. The Burdick test had no application in Buckley, and therefore, the Buckley
case cannot lend support to the district courts findings in light of these facts.
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inform voters of the new law, and determined that the laws application is
confusing. The City argues that if the district court had not enjoined the City
from enforcing the law, it would have had ample time to inform voters of the new
photo identification requirement. Regardless, we think that the degree of voter
education, particularly in the absence of any indication that any voters would be
or were confused, cannot be an adequate ground to invalidate this provisionour
task is not to mandate a perfect systemjust one that meets constitutional
requirements. And second, the law clearly states its application to all
Albuquerque municipal elections, and nothing suggests that its application is any
more confusing than the changing boundaries or precincts that often accompany
elections and that voters must accommodate.
Regardless, in Crawford, the Supreme Court concluded that the burdens
imposed by a photo identification requirement did not substantially burden the
right to vote. [A] voter may lose his photo identification, may have his wallet
stolen on the way to the polls, or may not resemble the photo in the identification
because he recently grew a beard. Burdens of that sort arising out of lifes
vagaries, however, are neither so serious nor so frequent as to raise any question
about the constitutionality of [the photo identification requirement]. Crawford,
128 S. Ct. at 1620. The Indiana law also similarly provided for a provisional
ballot alternative where a voter could then present valid identification following
the election. Crawford, 128 S. Ct. 1613-14. Consistent with Crawford, the types
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This argument was initially raised under the Plaintiffs First Amendment
claim. The district court granted summary judgment in favor of the City as to that
claim, but made clear that the argument still applies in the equal protection
context. Santillanes, 506 F. Supp. 2d at 643.
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federal offices. See Sandusky, 387 F.3d at 574. The 2005 amendments to the
New Mexico state election code implement provisions of HAVA and apply to all
statewide elections. The Albuquerque law, in contrast, only applies to
Albuquerque municipal elections. Thus, we find no direct conflict or preemption
with federal or state law.
E. The City was not required to show that the State failed to comply with
HAVA prior to imposing the law
As noted above, in the district courts analysis of the Burdick balancing
test, the court placed too high a burden on the City to justify the law. The district
court faulted the City for not presenting evidence that the state was not in
compliance with HAVA as a justification for the Albuquerque law. Santillanes,
506 F. Supp. 2d at 638. The district court concluded that because there are
federal and state requirements, through HAVA and the state election code, the
City did not demonstrate why this particular photo identification law is needed.
The court then concluded that the City failed to demonstrate how such a law
serves to combat an existing problem with voter impersonation fraud in
municipal elections. Id. As we have noted above, Crawford confirms that such
a showing by the City was not necessary.
F. The district courts other justifications should be rejected
Crawford clearly guides this court in concluding that the Albuquerque
photo identification law is a valid method of preventing voter fraud. Although
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the district court presented a litany of reasons throughout its Burdick analysis for
why this law is invalid, it is unnecessary to address them further other than to say
that the City simply was not required to enact a provision that was metaphysically
certain of eliminating all voter fraud in every conceivable in-person situation, any
more than it was required to address (in advance) every situation imagined, no
matter how remote. See Crawford, 472 F.3d at 954; Aplt. Br. at 43-47. The court
deals in probabilities, not possibilities, which of course explains why evidence on
such points is so helpful. None of the district courts concerns are sufficient to
distinguish this case from the clear precedent set forth in Crawford.
REVERSED.
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