Analysis: An election issue for an election year
Voting will be under way in the 2008 primary elections when the Supreme Court considers and decides a pair of cases granted review on Monday, but the general election will still be in the offing, and the political world will maintain a longer-term interest in the outcome. Few cases the Court might have agreed to hear would be likely to have as much real-world political impact as the newly granted cases of Crawford v. Marion County Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25), involving an Indiana voting requirement law that is said to be among the most demanding in the nation. (Click the following links to read the petition in 07-21, the petition in 07-25, the brief in opposition in both cases, the supplemental brief in opposition in both cases, the reply in 07-21 and the reply in 07-25.)
The Justices will be deciding on the constitutionality of an increasing popular form of balloting restriction: requiring those who show up at the polls to vote to first show a photo ID, such as a driver’s license or a passport. In perhaps half of the states and in the federal government, such identification requirements have been written into law in varying forms — defended by their sponsors as necessary checks upon voting fraud, assailed by their critics as cynical efforts to keep poor and minority (and likely Democratic) voters away from the polls. In fact, voter fraud is a concern often expressed most vigorously by Republicans — and it has been an issue as Washington pondered the firings of some federal prosecutors for supposedly going easy on election fraud.
The Court may not pay much attention, openly, to the potential partisan effect of the decision they will announce, perhaps in late spring. But they very likely will be looking to counsel on both sides to offer at least argument, if not evidence, to give practical substance to two opposing propositions: that few attempts are made to pose as someone else in order to skew voting in any given election (that is, the claim that voter fraud is not a real problem), and that few people really are discouraged from voting by ID requirements at the polls (that is, the argument that most people have IDs so requiring them is not a big deal).
Among the three judges on the Seventh Circuit Court, the two-judge majority who voted to uphold the Indiana law were little impressed with the claim that a photo ID command imposes a burden on potential voters (suggesting that “the vast majority of adults have such identification”), while the dissenting judge was not persuaded that voter fraud was prevalent (dismissing that argument as a “fig leaf of respectability providing the motive behind this law” and noting that no one in the history of Indiana has ever been charged with voter fraud).
Some states have long required voters to identify themselves at the polls, but no state had a mandatory requirement to produce a photo ID issued by a government agency and still valid, until Indiana and Georgia passed such laws in 2005. Indiana’s law, which went into effect July 1, 2005, requires those who seek to vote to product a state or federally issued photo ID; if the voter does not have one, a provisional ballot may be cast, with the voter under an obligation to produce a photo ID within 10 days after the election in order to have the vote count; a poor person may file an affidavit swearing that they were the ones who had voted or that they were too poor to obtain a photo ID for a fee.
One of the two new appeals to the Supreme Court notes that the Court, in an unsigned opinion last Term (Purcell v. Gonzalez, 06-532 and 06-533) allowed Arizona to require voters to provide proof of citizenship but did not lay down a standard for judging voter identification requirements. (The Court stressed in the Purcell opinion that it was not interfering with the Arizona provision because the issued had arisen “just weeks before an election” and there was thus inadequate time to evaluate its actual effect.)
In the Seventh Circuit decision in the Indiana case, the majority used a deferential standard, saying that the fewer the number of people who would be deprived of a right to vote by the law, “the less of a showing the state need make to justify the law.” The dissenting judge argued that the potential impact on voting was sufficiently severe that a “strict scrutiny” standard should be the measure of the law’s validity.
The appeals also urged the Court to get into the photo ID issued now, so that it could be resolved “before the next national elections in 2008.” One of the petitions added: “Indiana is not unique in imposing identification requirements on those seekinig to exercise the right to vote, and the restrictive conditions imposed in Indiana are a harbinger of future regulations in other jurisdictions. These raise an exceptionally important unresolved question of law.”
The issue is under study or being advanced in other states, and local governments increasingly are passing ordinances requiring photo IDs, according to the appeal.
The appeals argue that states already have criminal laws against voter fraud, and those would suffice to deal with any perceived problem of intentional posing as someone else in order to vote.
The Court is likely to hold a hearing on the cases in January or February. The briefing schedule will have the papers before the Justices by year-end, enabling the Court, if it wishes, to schedule it for early argument in the session that begins Jan. 7..