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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.