Commentary: The partisan elephant unnoticed in the room
The Supreme Court, studiously avoiding almost all mention that it was examining a thoroughly partisan political battle, spent a spirited hour on Wednesday looking for ways either to scuttle a major test case over voters’ rights or to find a way — as if the Justices were writing a law themselves — to soften the impact of a tough state requirement for a photo ID before a voter may cast a ballot at the polls.
Only two Justices — Ruth Bader Ginsburg and John Paul Stevens — even hinted at the real-world fact that the photo ID law in Indiana is at the heart of a bitter, ongoing contest reaching well beyond Indiana. It is a dispute between Republicans worried over election fraud supposedly generated by Democrats to pad their votes, and Democrats worried over voter suppression supposedly promoted by Republicans to cut down their opposition. The abiding question at the end: can a decision be written that does not itself sound like a political, rather than a judicial, tract? Can the Court, in short, avoid at least the appearance of another Bush v. Gore?
At issue in the consolidated cases of Crawford v. Marion County Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25) is the constitutionality of a 2005 Indiana law that voters who show up at the polls without a photo ID will be allowed only to cast a provisional ballot, to be validated later at another place only if they can travel there and then prove identity. It has been upheld by the Seventh Circuit Court, leading to appeals to the Supreme Court by Democrats or their state party apparatus.
It was apparent from the outset that the Court’s more conservative members were most interested in (a) finding that no one had a right to bring the constitutional challenge, at least at this stage, (b) putting off a challenge until the law has actually been enforced or at least until just before election day, or (c) salvaging as much as possible of the Indiana photo ID requirement on the theory that voter fraud is a problem that states have a legitimate right to try to solve. There was some hand-wringing, particularly by Justice Samuel A. Alito, Jr., over how difficult it is for a judge to “draw the line” on when a voting requirement would or would not pass a constitutional test.
And it was equally apparent that the Court’s more liberal members were most keen about (a) pushing the Court to decide the case now, (b) doing so in a way that at least narrows the impact of the Indiana law on poor or minority voters, and (c) applying some constitutional pressure on the states to regulate voter fraud — if they do so at all — with more specifically targeted statutes.
In a notable way, therefore, it appeared that — once more — Justice Anthony M. Kennedy may hold the vote that controls the outcome. He displayed some skepticism about the challenge to Indiana’s law, somewhat impatiently suggesting at one point that the challengers would oppose any kind of voter ID requirement other than a simple signature match at the polling place. Kennedy seemed ultimately to be looking for ways to assure voters who demonstrably would be significantly burdened by the law that they could challenge it, perhaps even before election day came around.
Because the Nation’s caustic relations between the two major political parties are so clearly on display in the Indiana voter ID case, the Court was obviously at risk of being drawn into the middle of that in hearing the challenge to the state’s voter ID statute. For the most part, the hearing Wednesday was conducted in the language of the law, not politics and certainly not partisan politics. It was only barely noticeable, for example, when Justice Ginsburg, focusing on the plight of poor voters without photo IDs or the means to get them, said that states should make it easier for them to vote — “if they want those people to vote.” That conditional phrase was repeated several times, leaving the impression that she was not convinced that Indiana’s Republican-controlled legislature was sincerely interested in having the poor (presumably, Democratic voters) take a genuine part in elections.
And there was only one conspicuous reference to the partisan divide in the legislature that produced the photo ID law. Very near the end of the hour, Justice Stevens asked U.S. Solicitor General Paul D. Clement whether it was relevant, in judging whether the case should go forward, that the legislature was “split along party lines” in enacting the bill. He also asked whether it was “fair to infer” that the law did have an “adverse impact on the Democratic Party” different from that on the Republicans. Clement said he did not think it was relevant, commenting that any such Republican ploy had “gone awry” because the Democrats did pretty well in the ensuing election.
There was no mistaking, however, that there was a definite link during the hearing between conservative judicial philosophy and skepticism about the challenge to the photo ID laws, and between liberal judicial philosophy and concern over the potential burdens on the more marginalized voters. Whether those translate into partisan equations — or partisan voting in the end — is another matter entirely.
Justice Antonin Scalia, one of the more predictably conservative members, led the charge against the challengers, drawing in his wake Chief Justice John G. Roberts and Justice Alito and (to some extent) Justice Kennedy in questioning whether anyone had “standing” to bring this case. Scalia also took the lead in questioning — even more aggressively — whether the case should have been brought at all to the law as written rather than to its actual application in a specific election setting. As it turns out, those are the two complaints that the Bush Administration leveled most strongly against the challenge.
Washington lawyer Paul M. Smith, representing the Democratic challengers, no doubt used more of his argument than he would have liked on the standing issue, and on defending the pre-election challenge to the statute. He challenged the Justices to shoulder the burden of decision, saying that, in voting rights cases in particular, the courts must make the hard choices about the validity of limits on voting. He had particular difficulty with Justice Scalia, who rejected Smith’s suggestion that voter fraud was only “possible,” insisting instead that it actually was “likely.”
Near the end of his argument, Smith was pressed by Justice David H. Souter, one of the more liberal members, to come up with some statistics on how many voters actually might be impacted by the photo ID mandate — questions that seemed designed to help bolster the notion that the law’s impact might, indeed, be substantial. Smith ultimately said that the law might effect as many as 200,000 voters in Indiana.
Indiana’s state solicitor general, Thomas M. Fisher of Indianapolis, somewhat grudgingly suggested that the law conceivably might have an impact on 25,000 or fewer voters in the state, but would not concede even that number because he opined that many among those potentially affected had not even registered to vote. Ultimately, he would insist that “we are talking about an infinistesimal burden” on Indiana’s electorate.
Fisher’s time at the podium was made difficult by Justices Ginsburg and Souter — especially after he embraced Justice Scalia’s suggestion that any affected voters would have a chance to file challenges limited solely to their actual experience with the law. Ginsburg said waiting until later to bring a challenge would mean that “the horse is going to be out of the barn,” the election over without those voters having had a chance to vote. Souter said that, if the most rigorous limit on such a facial challenge were applied to the Indiana case, “there would never be” such a challenge and elections would go forward with no test of the limits on voters.
Justice Stephen G. Breyer was the most active in suggesting ways to Fisher that the law’s impact could be minimized. Breyer’s notion was that the state could simply offer to give a photo ID to a voter who did not have one and could not afford to get one. “It is no big deal — just take a picture of them [when they register] and hand it to them. That would satisfy your anti-fraud concern, in a less restrictive way.” Justice Kennedy chimed in to suggest that, if the Court found Indiana’s way of authenticating voters’ identity was too burden, whether the state might have available “some reasonable alternative.” Kennedy suggested, perhaps, that neighbors could vouch for an individual’s identity. Fisher said he was not sure that, since Indiana must obey federal laws dealing with voters’ qualifications, that the state would have such options.
Solicitor General Clement spent most of his ten minutes at the podium defending the point that the facial challenge should not have been allowed to proceed. “A far better way” to get a judicial test, on the law as it actually might affect individual voters, was to have them bring “as-applied” challenges. And he conceded to Justice Kennedy that some of those lawsuit might be allowed to go to court before election day.
Justice Stevens wondered whether it would be easier for an individual impacted by the photo ID requirement to go through the tangle of a lawsuit than to go through the extra steps that Indiana requires voters without IDs to do to get their ballots counted — a question that implied that, if the law as written deters some voters, they might also be put off by the daunting task of suing. Clement suggested that it may be “easier to get someone to help with your lawsuit” than it would be to get some assistance in getting identified to vote.
Smith used most of his rebuttal time to try to head off the idea that an as-applied challenge would be a better or more efficient way to test laws like Indiana’s. “That way lies madness,” he said, with a need for the courts to do extensive balancing and weighing of individuals voters’ interests. “The whole thing would be a complete and utter morass,” he concluded.
The Court is expected to decide the case by early summer.
Doesn’t most polling on this question show strong public support for these measures?
Comment by Sean O'Brien — January 9, 2008 @ 1:39 pm
It is most ironic that the solution to this politically loaded case that looks most faithful to the constitution is also a political one. I am unable to find a provision anywhere in the constitution that prohibits states from denying the right to vote on account of inability to prove identitfication according to a state’s chosen standard. The fifteenth amendment bans denying the vote on account of race, the nineteenth on account of sex, and the twenty-sixth on account of age. But a ban on denying the vote on account of overly-rigorous ID laws?! My goodness…
SCOTUS could resolve the case by some strongly worded dicta that would warn of the invocation of section two of the fourteenth amendment should Indiana not provide another way to ensure the franchise to all. Indiana actually wouldn’t lose house seats for women and 18-21 year olds denied the vote, but the threat of even losing one house seat should be enough make sure that Indiana passes laws that would satisfy strict scrutiny with a heavy emphasis on the narrowly tailored and least restrictive components.
Comment by Jacob Berlove — January 9, 2008 @ 2:18 pm
The question here is how far the state can go in burdening the exercise of the most fundamental right of citizens in a democracy, in order to address what no one really believes is a rampant problem. To be sure, while electoral fraud is a perennial problem, the problems occur not when voters enter the booth, but when the votes are counted, which these laws do nothing to address.
Comment by Nancy Spiegel — January 9, 2008 @ 2:29 pm
Yes, they tend to be popular. Other countries have done a good job as well, for example Mexico:
http://www.ife.org.mx/portal/site/ife/menuitem.6d5c4db6df32b7b841695c16100000f7/
There seems to be a better system there than in the United States
Comment by Ben Kennedy — January 9, 2008 @ 2:37 pm
The elephant in the living room here is the disparate impact on deceased voters.
Comment by Kent Scheidegger — January 9, 2008 @ 2:59 pm
Lyle, what’s the reason for the scare quotes in this sentence: it was questioned “whether anyone had ’standing’ to bring this case”?
Comment by Simon Dodd — January 9, 2008 @ 3:46 pm
I am not sure that the Court has thought through the implications of going to as-applied challenges for nuts-and-bolts election administration litigation. It has the potential to greatly increase litigation, and to do so at precisely the wrong time. See my post here:
http://electionlawblog.org/archives/010031.html
Rick Hasen
Comment by Rick Hasen — January 9, 2008 @ 4:44 pm
I’m not an attorney but have lived in a state that has required photo id for years. It works and anyone can get an ID at no cost. That state even had Motor Vehicle trailers to go everywhere to issue IDs/licenses. How is anyone harmed by this requirement, compared to the enormous liklihood of voter fraud. In Rhode Island (no ID)people can and do vote in multiple towns
Comment by Al Brockman — January 9, 2008 @ 5:22 pm
Rick, do you reject Salerno as a standard for facial challenges generally, or are you arguing for an exception for election cases?
Al, in your state are there any documents that voters have to be able to provide that impose costs? Indiana will provide a free ID, but you have to be able to obtain certain documents which themselves cost money, and the argument is that this secondary cost (and the inconvenience involved) amounts to an undue burden.
Comment by Simon Dodd — January 9, 2008 @ 6:46 pm
Nancy Spiegel -
“The question here is how far the state can go in burdening the exercise of the most fundamental right of citizens in a democracy…”
I would have thought the most “fundamental right of citizens” would be the right to life. Every year the state sanctions much more than just “burdening the exercise” of that right against thousands who subsequently will never be able to vote. Now that is a “rampant problem”.
Comment by John Stevenson — January 9, 2008 @ 10:21 pm
The appellant’s claim that 200,000 people would be prevented from voting is absurd. Apparently the trial court didn’t buy the argument that the ID law posed an undue burden. I would also like to know how many of the people who allegedly don’t have a photo ID are actually registered and likely voters. I suspect not very many at all. The Georgia law that was passed several years ago but struck down by judicial decree provided for mobile units to go to poor neighborhoods and provide anyone and everyone with photo ID’s. Democrats’ opposition to that law belies any good faith claim thazt they are worried people won’t be able to obtain an ID. Finally, the appellants’ claim that there is no problem with fraud at the polling place is assinine. The fraud that occurred in Milwaukee in the 2004 presidential election is enough to establish the need for these kind of laws. And yes, I know that the case involves Indiana law. It doesn’t matter. The integrity of our elections is a vitally important part of our democracy that must be protected.
Comment by John Torbett — January 10, 2008 @ 12:31 am
I think that the law under discussion is constitutional but is bad public policy. No matter how much we make fun of dead people voting the reality is that voter fraud is not a serious issue at all, no matter how much irrational people insist that it is likely. We have gone 200 years without photo ids just nicely, thank you. I don’t really grasp all the implications of this fascination we seem to have got for taking people’s pictures but I don’t think it is healthy for a society to go do this road. Trust by its very nature is not an institutional process and trying to enforce such trust in these situations does more harm than good.
Comment by Daniel Thomas — January 10, 2008 @ 12:38 am
Jacob,
I think one issue that also should be addressed is the 24th amendment. If the state requires a photo ID that costs them extra money and is not freely provided with DMV trailers roaming the state as Al says then isn’t this in effect a sort of roundabout poll tax? People who cannot afford to pay it are prevented from voting. And even casting a provisional ballot requires a potentially long, proportionally costly (for those most likely affected) travel expense. Even if the ID is free, this cost of confirmation of the provisional ballot could be interpreted as a sort of defacto poll tax. If governments concerned about this possibly problem of voter fraud problem wanted to address the issue, isn’t the safest way to do so to offer free photo ID’s in increased numbers and circumstances (a poor person spends proportionally more time and thus time that could be spent earning money waiting at the purgatory that can be the dmv) and that if travel is necessary for a confirmation, the state will reimburse you?
Comment by Rich Abott — January 10, 2008 @ 1:34 am
In reading the transcript, Justice Scalia’s commentary about having to travel 17 miles (from Gary to Crown Point, Ind.) to get a driver’s license would be an equal burden on the rich and the poor seemed to be *woefully* out of touch with reality. (Public bus < Bimmer. Clearly.) Perhaps he would think better of it when he writes his opinion on this one. There may be no grounds to overturn this law (I personally don’t like it, but can see how this Court might justify it). But that is a horrible argument to make.
[Of course, I don’t know necessarily that there is only *one* DMV office in the entirety of Lake County, Ind. That seems to be a stretch. But anyway.]
Comment by Tom Soule — January 10, 2008 @ 11:06 am
To my point about distances: there is a branch office in downtown Gary. So petitioner’s argument misrepresented the record (if in fact facts about DMV offices in Lake County was in the record). Justice Scalia followed that bad argument with a worse conclusion. Not exactly the SCOTUS’s finest hour. ;)
Comment by Tom Soule — January 10, 2008 @ 11:13 am
Where do people get the idea that incidental costs to get photo ID equals a poll tax?
Comment by Sean O'Brien — January 10, 2008 @ 11:26 am
Phil, that doesn’t make it a tax.
Comment by Sean O'Brien — January 10, 2008 @ 11:57 am
If there is ANY BURDENSOM COST to obtaining the ID card, the nation is dragged back in time to the days of the poll tax. From experience, it deterred myriad African Americans from voting in the South and elsewhere. In many white-dominated communities, it was instrumental in keeping ‘Jim Crow’ alive and well 4 years at a time!
The white GOP folks in Georgia and Indiana embarrass themselves by thinking intelligent Americans do not see through the purpose of their ID cards. They are a prime example of annoying barriers white Conservatives-Racists have put in the way of African and poor white Americans seeking to exercise their right to vote. When there are a sufficient number of ‘annoying barriers’ erected voter participation declines.
When I was 9, I saw the whip cuts my grand father
had received on his back from whites after he had IN FACT PAID HIS POLL TAX! So the Indiana and Georgia white folks are not just disingenuous when they speak of the purpose of their ID cards. The are 24 carat LIARS. African Americans have had to endure DECADES OF ABUSE, Poll Taxes and the like just to exercise their ‘right to vote’.
The Whip, the Rope or the Poll Tax are all the same - they are barriers to the right to vote. Today, America can add the ID Card and its attendent Costs.
Americans often talk about the System ‘working’. Well, the Voting System in American cannot be said to ‘work’ if its Processes are purposely fouled - unnecessary, though purposely VIRULENT.
If Georgia & Indiana do not provide their ID Cards - and ALL required supporting documents & their acquisition - TOTALLY & COMPLETELY FREE OF CHARGE, then the laws purposely violate the Voting Rights Act & the Constitution.
Comment by Joseph Conrad — January 10, 2008 @ 3:59 pm
Royal Masset, the former political director of the Republican Party of Texas on Voter ID laws as quoted in the Houston Cronicle:
“Among Republicans it is an “article of religious faith that voter fraud is causing us to lose elections,” Masset said. He doesn’t agree with that, but does believe that requiring photo IDs could cause enough of a dropoff in legitimate Democratic voting to add 3 percent to the Republican vote.”
http://www.chron.com/disp/story.mpl/metropolitan/mack/4814978.html
Comment by A. Berning — January 10, 2008 @ 4:45 pm
Isn’t the elephant in the room the Alberto Gonzales resignation? He fired US Attorneys who refused to prosecute nonexistent cases of voter fraud. That tells me that the White House cares deeply about the lack of reliable evidence of voter fraud.
Comment by Mike Richardson — January 10, 2008 @ 5:02 pm
Attendant costs of acquiring photo ID usually includes cost of certified copy of birth certificate, if you do not have the original.
In Oklahoma that meant a trip to Oklahoma City in person, no matter where your residence is. That’s no small effort for a non-driver, elderly, poor working person.
It is a poll tax for all intents and purposes.
Comment by J. R. Blanc — January 10, 2008 @ 7:03 pm
Supremes repeating right wing talking points. Or did I miss something?
Comment by Duncan Hare — January 10, 2008 @ 7:13 pm
It’s well to remember that Indiana had the largest and most active Ku Klux Klan in the good old days. Is it a coincidence that Georgia is the other state that wants picture ID’s?
Comment by John Rogers — January 10, 2008 @ 7:18 pm
I am astonished at the ignorant liberals leaving idiotic statements. Or maybe I shouldn’t be amazed because we all know liberalism is a mental disorder.
Comments 18 thru 23 prove my point especially comment 18. Hey, grow up and stop acting like children.
Right-wing this and right-wing that. My God, you sound like People for the “UN”American Way. Whenever you don’t like a decision then all you cry babies start bashing conservatives only because your uneducated morons. Did any of you left-wing nuts graduate high school. If not go back, please, for the future of this country cannot tolerate such ignorant stupidity.
Conservatives take responsibility for themselves unlike liberals who depend on the government for everything. If you can’t get a photo ID then to bad because this is America where you can achieve anything unless your lazy or ignorant.
Comment by Daniel Evans — January 10, 2008 @ 11:18 pm
Comment by J. R. Blanc — January 10, 2008…
“Attendant costs of acquiring photo ID usually includes cost of certified copy of birth certificate, if you do not have the original.
In Oklahoma that meant a trip to Oklahoma City in person, no matter where your residence is. That’s no small effort for a non-driver, elderly, poor working person.
It is a poll tax for all intents and purposes.”
* * * * *
In typical left-wing fanatical fashion, the facts are over ruled with hysteria, lies, and knashing of teeth.
Anyone can go to any number of websites to find birth certificates, WITHOUT having to travel to Oklahoma City. Don’t have a computer?… well, the library does, as do most senior centers, etc. The liberals don’t seem to have a problem fighting to have porn on city library computers, but woah unto anyone to suggest they use those same computers to order a birth certificate from the state registrar!
And besides, how is it that the person doesn’t have a problem getting to the polling place to vote (fraudulently or otherwise), but just can’t seem to make it to the local DMV to get an ID card?
If the Dems/liberals are so concerned about their voters not being able to get to DMV, then give them a ride (just like you do when taking them to the polls!)
Comment by James Talor — January 11, 2008 @ 3:29 am
How can Indiana, essentially, require residents to PAY for the right to vote?? If the state ID’s are not free, the right to vote comes with cost. This is COMPLETELY unconstitutional.
Comment by chaka allen — January 11, 2008 @ 12:40 pm
The issue is not whether some incidental costs can be characterized as “paying” for the right to vote; the issue is whether the requirement to present an ID constitutes a poll tax because of some de minimis cost to acquire that ID. To call the expenditure required to get an ID a “poll tax” is to stretch the meaning of the word “tax” beyond its meaning.
Comment by Sean O'Brien — January 11, 2008 @ 7:35 pm
So let me get this straight…
These voters don’t have a driver’s license or an ID card. And the Dems and the ACLU say these voters should not be required to get one in order to prove who they are at the polls to vote.
Well, how did they register to vote? Don’t they have an ID of some sort to register (or can they just give any name and address when registering)?
And don’t these unidentifiable voters drive, or cash checks, or board airplanes, or check out books at the library, or go to the bank, or rent videos? Any of these activities require an ID card. Do the Dems and the ACLU expect us (and the Supreme Court) to believe that there is any measurable number of people who take the time to register and to vote, but otherwise live in a cave and have no need for an ID card or driver’s license? Sounds preposterous to me…
It sounds like the Dems and the ACLU see their loopholes for stuffing the ballot box beginning to close.
Comment by James Talor — January 12, 2008 @ 1:01 am
A more traditionally conservative approach is to catch people after they break the law, not inconvenience honest people.
So why not propose this: Videotape everybody who arrives at the polling place and asks for a ballot. That would not compromise the secrecy of their vote, and if they vote twice or are not registered in this precinct, you’ve nailed them. Problem solved without voter suppression.
Comment by Doug Muder — January 14, 2008 @ 9:50 am
John Fund has an interesting article today at OpinionJournal.com. It seems that the Nevada Democratic Party will be requiring voters to show ID at the casino caucuses this Saturday.
Comment by Kent Scheidegger — January 17, 2008 @ 3:06 pm
Interesting quote from Sen. Jacob M. Howard:
“The State of Virginia the moment she is admitted into the Union can by her Legislature, and in perfect consistence with her constitution, propose such an amendment to her local constitution as shall in effect disfranchise nine hundred and ninety-nine out of a thousand of the colored population of that State, by imposing a property qualification upon them, and it would be no violation of the Fifteenth Amendment…
“The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to the present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them.”
Source
Comment by George Hines — January 19, 2008 @ 9:08 am