Republicans may be in trouble politically these days, what with their president’s approval ratings in the tank and their congressional delegations suffering mass retirements. But they are clearly making up for it at the U.S. Supreme Court, which has once again provided the GOP with a potential boost at the polls for the coming election. In what’s been dubbed the most important voting-rights case since Bush v. Gore, the Supreme Court upheld Indiana’s hotly contested voter ID law on Monday morning in a 6-3 decision (PDF) that was, oddly enough, written by the court’s resident liberal, John Paul Stevens.
Partisans have been closely watching Crawford v. Marion County Elections Board, not just for its potential impact on Indiana elections, but also for its affect on the future of similar laws in other states. Republicans have acknowledged publicly that such laws can depress Democratic turnout by at least 3 percent, enough to propel GOP candidates to victory in close elections and one suspected reason for their popularity in the Bush administration. The Indiana law requires voters to present a government-issued photo ID at their polling places. People without the necessary ID can cast a provisional ballot, but then have to travel to a county clerk’s office to file an affidavit attesting to indigence or show proof of ID of another sort.
It’s the toughest voter ID law in the country, and it’s clearly onerous for a chunk of Indiana residents, particularly the poor, elderly, and disabled—people who tend to vote Democrat. Currently, no one disputes that at least 43,000 Indiana residents don’t have the requisite ID needed to vote, or that it will be a headache and potential financial burden for many people to acquire one. But Stevens and the court’s majority found that getting ID hardly constituted a poll tax, as some critics had alleged. They said the inconveniences created by the new law were outweighed by the state’s interest in preventing voter fraud, even though the state has admittedly never had a single instance of the type of fraud that the law was created to prevent. (This is a point worth reiterating: The state of Indiana has never had a single documented case of voter impersonation fraud, ever.)
The ID law is overkill for a problem that doesn’t exist. At the same time, though, real victims of the new law have been as scarce and theoretical as the state’s vote fraudsters, a problem that basically killed the plaintiffs’ case. It’s a quandary inherent in such election lawsuits, known as facial challenges, which are designed to address legal questions before a law takes effect so that no one loses a constitutional right. Legally, it makes lots of sense, but on a practical level, facial challenges can be difficult because no one has yet been harmed by the challenged statute, forcing plaintiffs to deploy mainly hypothetical arguments.
In Crawford, the missing-victim problem was especially acute, as the plaintiffs couldnt find anyone who would attest that the ID law would prevent him or her from voting down the road, a point Stevens honed in on. Even the court’s leading liberal couldn’t quite get over the lack of documented harm, despite the fact that last fall, after the law took effect, a couple dozen voters were prevented from voting—cases that were presented as part of the record in the case.
Not that the state of Indiana had a lot of hard facts on its side, either, a point hammered home by Bush I appointee David Souter in his impassioned dissent (PDF). Souter chastised his colleagues for not casting the same skeptical eye they applied to the plaintiffs to Indiana’s dubious claim that it needs to require ID to “modernize” the voting system. He writes, “The State’s asserted interests in modernizing elections and combating fraud are decidedly modest; at best, they fail to offset the clear inference that thousands of Indiana citizens will be discouraged from voting.”
Souter argues that though Indiana claims it wants to root out voter fraud rather than, say, prevent Democrats from voting, it has taken scant few measures to correct the documented voting problems that do exist, namely bloated and inaccurate voter rolls created by the state itself. The state’s poor electoral management actually led to a lawsuit by the federal government in 2006 forcing it to clean up its act. “The answer to this problem is not to burden the right to vote, but to end the official negligence,” he writes. Unfortunately, Souter failed to sway enough of his colleagues, who have now validated the GOP’s bogus seven-year war on voter fraud.
While liberals are already zinging the court for serving Republican interests, Stevens’ role in crafting the majority opinion suggests that Crawford v. Marion County may be less a child of the 2000 election and more the legacy of September 11, 2001. In a post-9/11 world, official identification has become so integral to daily life that it really is hard to imagine that there are still people who manage without it. You can’t enter a tall building, get welfare benefits, or even buy allergy medicine at CVS without a photo ID. Viewed through that lens, it’s easy to understand why Stevens and the other justices might not see a government ID card as much of an impediment to voting, even for the country’s most disadvantaged. Eventually, everyone is going to have to get an official ID, and voting for a local ward heeler is the least of those reasons.
Until that happens, however, there are still lots of people who will have enormous problems proving who they are, and many of them will be people like those shut out of the election in Marion County, Indiana, last fall, who have been regular voters for years. The Crawford ruling, however, won’t be the end of the story. Stevens left the door open to future challenges to ID laws, provided plaintiffs can demonstrate actual harm from the laws. And of course, there’s the old tried-and-true remedy for getting rid of discriminatory laws: voting out the people who created them in the first place. It’s always useful to remember that however powerful the Supreme Court, the people, through Congress and state legislatures, are fully empowered to fix their own voting rules. It’s a strategy Democrats might find a lot more fruitful than making their case to the unfriendly federal courts, even if it means driving Miss Daisy and all her octogenarian friends to the county clerk’s office to make sure their votes are counted.