Wednesday, January 09, 2008

Opponents Of Voter ID Fall Flat In Supreme Court Argument

I just got through reading the transcript from today's oral argument in Crawford v. Rokita, the case challenging the constitutionality of Indiana's Voter ID law. To say the opponents of Voter ID's arguments fell flat is an understatement. Paul Smith, arguing for the Petitioners, barely got his first sentence out before Scalia pounced all over him on the issue of standing. After consuming a great deal of his time fielding justices questions about standing, Chief Justice Roberts confronted Smith with this question: "Well, I understand Judge Barker to say that you had not come up with a single instance of somebody who was denied the right to vote because they didn't have a photo ID?" I don't think Roberts was satisfied with Smith's response. "So that comment, while it was made, I don't quite understand its significance," Smith replied. Roberts rhetorically asked, "So elections were conducted under this law?"

The justices' skepticism didn't end there. At one point, Justice Antonin Kennedy, often viewed as a swing member of the Court, asked Smith, "You want us to invalidate a statute on the ground that it's a mere inconvenience to a small percentage of voters?" Justice Alito asked Smith, "Is any form of voter identification beyond a signature permissible or not." Justice Kennedy helped Smith with his answer, "So then your answer to Justice Alito should be no?" Smith conceded the point. Chief Justice Roberts took notice of the fact that 41.4% of the people on the voting rolls at the time the statute was enacted were either dead or duplicate. Smith conceded the state had undertaken efforts to clean up the voter rolls, to which Roberts replied: "And this is one of them, I suppose, requiring photo ID?" Although Smith initially challenged Roberts' contention, he conceded the inflated voter rolls presented a significant potential for voter fraud.

Naturally, Smith jumped on the argument that the state could offer no examples of cases where voters had been prosecuted for voter impersonation. "The salient fact here is that there's not a single recorded example of voter impersonation fraud," Smith said. That's because it's a type of fraud that is "hart to detect" Roberts replied. Although Smith tried to convince Roberts it was a type of fraud that was easy to detect by election workers, Roberts wasn't buying it. As Roberts explained it: "I'm John Smith, this is my address. And later in the day somebody else comes in and says: I'm John Smith and this is my address. And because they're duplicates it's really difficult to check." Justice Scalia added, "The people who are dead or have moved away would certainly not be objecting." Justice Breyer seized on Judge Posner's arguments in his 7th Circuit opinion about the difficulty of detecting voter impersonation and gave Smith several chances to convince him Posner was wrong. The best response Smith could muster was this: "You deter it by the signature match, by having to have the same age, by having to get past people who know a lot of the people in the precinct, and by having very severe criminal penalties."

Further weakening the Petitioner's argument, Justice Alito jumped on the recommendations contained in Carter-Baker election reform report. "If this is not a problem at all, how do you account for the fact that the Commission on Federal Election Reform that was co-chaired by former President Carter and former Secretary of State Baker recommended a voter ID requirement, and many other countries around the world have voter ID requirements?," Alito asked Smith. Under questioning from Justice Roberts, Smith conceded the Carter-Baker report was "very strong on having this birth certificate requirement." One of the Petitioner's central arguments against Voter ID is that it is difficult for some persons to obtain a birth certificate, which is needed to get a photo ID.

The justices seemed interested in quantifying the number of actual Indiana citizens who are unfairly burdened by the Voter ID requirement. The Petitioners' claim that number is about 400,000. Arguing for the state, Tom Fisher contends the actual number is closer to 25,000--an "infinitesimal portion" of the population, or less than one-half of one percent. He noted that a number of the people the Petitioners' included in their account wouldn't even choose to register to vote. At one point, Justice Stevens wondered whether the political parties wouldn't assist those persons who needed assistance in obtaining a photo ID as part of their get out the vote efforts. Smith responded that he was unaware of any efforts the party makes to assist voters in obtaining photo IDs.

At one point, Justice Souter took issue with Fisher's suggestion the number of voters adversely affected was "infinitesimal." Fisher had a good response. If you have a problem with the number of people adversely affected by requiring a photo ID, then you're going to have an issue with voter registration requirements. "That is a procedure that the Court has long accepted, has endorsed multiple times . . . ," Fisher said. Souter shot back, "[B]ut we haven't endorsed a registration procedure that would require as much documentation and as much travel as -as the -- as this voter ID procedure would have." Scalia brought Fisher's argument back around to the standing issue, wondering if there could be any facial challenge when everyone concedes the law doesn't unfairly burden the vast majority of persons. "Then why are we arguing about whether there is one half of one percent of the electorate who may be adversely affected and as to whom it might be unconstitutional?," Scalia asked. "That one half of one percent, if and when it is sought to be applied to them, have a cause of action to say you can't apply it to me. But why -- what precedent is there for knocking down this entire law on a facial challenge when I think everybody agrees that in the vast majority of cases it doesn't impose a significant hardship?" That's exactly why the state believes the Petitioners' have no standing to bring the case Fisher responded.

Justice Breyer spent some time taking Fisher to task on the state's much less-stringent voter registration requirement. He wondered why the state didn't require a photo ID on the front-end when a voter presented himself to register as a voter. Fisher struggled with the question for awhile, but eventually got around to the National Voter Registration Act, which he says hamstrings the state on what it can require as part of its registration process. Justice Stevens thought it odd that the law would require a tougher requirement to vote than it required to register to vote. The back and forth over Indiana's failure to do a good job maintaining its voter registration rolls and its registration versus its voting requirements didn't help the state's argument. Justice scalia found a way to bring the argument back around for Fisher. "Don't you need a birth certificate to get a passport?," he asked. When Fisher responded "Yes" Scalia sarcastically asked, "So maybe that's unconstitutional too," which drew laughter in the Court. Fisher, at that point, got in his strongest statement to sum up his argument: "And it -- it's worth bearing in mind that this form of identification is necessary to do so many everyday activities, and it's not as if the State of Indiana went out and created an entirely new system to impose on the entire electorate, that everybody would have to start from square one. The vast majority of voters are already in compliance with this law, and the decision of the General Assembly, that it is a reasonable step to take for a measure of election security to bring the State's voting system into the 21st century and to require the same photo identification that you have to show typically to get on an airplane, to get into many Federal courthouses, is a reasonable step in the right direction to preserve voter confidence."

It can sometimes be like reading tea leaves to figure out how the Supreme Court is going to rule in any particular case. I feel pretty confident, though, in where the Court is going to come down. If the Petitioners are lucky, the Court will simply punt the case for lack of standing. If it gets to the merits of the case, there doesn't appear to be any chance they will find more than four votes on this court to strike down Indiana's Voter ID law, if they have that many votes.

12 comments:

Anonymous said...

This is not about voter fraud...it is about GOP vote suppression.

Anonymous said...

While Smith might've struggled through the standing questions on oral, the question was well-responded to in the briefs.

The justices asked pointed questions of both sides, and you forgot the best part, where Fisher stated that the Voter ID law was necessary to curb the potential for fraud caused by overinflated voter registration rolls. The justices seemed incredulous that the state's Solicitor General just admitted that Indiana needed the strict Voter ID law because the state wasn't doing a good job maintaining voter registration records. That's right, Fisher admitted that we needed a stricter id law because the state wasn't enforcing another law.

CJ Roberts: "You're saying (the state) does such a lousy job on registration that (the state) should be able to have a more stringent voting requirement. Why (does Indiana) do such a lousy job on registration?" This comment drew much laughter and was followed by both Souter and Ginsburg following up. Souter: "Are you making the argument that (the state) can place a heavier burden on voters to identify themselves because your state officials refust to follow the law? Surely you're not going to rest your case on that?"

Doug said...

These are mostly the same folks who issued Bush v. Gore. So, I tend to agree with you that the potential of disenfranchisement due to Indiana's rigid ID requirements and the lack of any evidence of a problem in the first place is hardly going to bother them.

Advance Indiana said...

anon 7:34 said, "You forgot the best part"

No, that's why I said, "The back and forth over Indiana's failure to do a good job maintaining its voter registration rolls and its registration versus its voting requirements didn't help the state's argument."

Doug said, "So, I tend to agree with you that the potential of disenfranchisement due to Indiana's rigid ID requirements and the lack of any evidence of a problem in the first place is hardly going to bother them."

Just like it didn't bother the Petitioners when thousands of Marion County residents were denied the right to vote in the May primary because the clerk's office failed so badly on putting on the election?

Anonymous said...

Well, no, it's not the same court, Doug, but your point is well-taken nonetheless:

Gone is Justice O'Connor, whose much-admired reasoning powers were somehow absent in BVG.

Gone is the Chief, Rehnquist, whose rigid ideology hampered the Court throughout his tenure as CJ. And don't forget, this is the same Chief who fashioned the new CJ robe and hat, for fashion's sake. (Ugh) (he needed a gay advisor). And who unilaterally changed his title from Chief Justice of the SC to Chief Justice of the United States. Subtle power grab: when his history is written, that's really all you need to know about him.

Replacements? Roberts as CJ and Alito as AJ.

Net result? four hard-liners (Roberts, Alito, Scalia and Thomas). Kennedy became the O'Connor swing vote.

This Court is decidedly more conservative than the 2000 BVG court. And that 2000 court will go down in history, among court-watchers, as having intervened improperly in the national political dialogue. Their BVG decision was wrong, it was stupid and it was ill-timed. Rarely have their predecessors been so poorly positioned in history.

So, Doug: you are right to assume that this Court is not likely to overturn Indiana's law. But not because it's the BVG 200 Court. Because it's even more right-wing-beholden than 2000 BVG's Court.

Not a proud moment for Court watchers and lovers of justice.

Advance Indiana said...

On Bush v. Gore, the Left has done a good job of rewriting history. I watched the case unfold very closely. I watched the televised hearings of the case in front of the Florida Supreme Court. I was shocked by the complete rewriting of Florida election law that the Florida court was undertaking in an obvious attempt to aid the recount efforts of Gore. There was only one attorney in those arguments who understood Florida election law and that was the attorney for the Florida Secrtary of State's office. Gore's attorney, David Bowles, had obviously never read an election statute before this case. There was a clear procedure under Florida law for certifying the initial vote, and then allowing for a contest if one of the candidates wished to challenge the certified vote results. Gore's lawyers got the Court to completely disregard the certification process and immediately begin recounts--in Gore rich counties only. The standards for how votes were being counted varied among the counties. I've seen Democrats do this before in recounts. You isolate a sufficient enough number of contested votes to change the outcome and then adopt a rule for counting those votes which ensures your candidate enough votes to win. It happened in a recount I witnessed in an Illinois Stare House race. It happened in the McCloskey race here in Indiana. If the Supreme Court hadn't intervened, you would have had a situation where essentially an out of control state supreme court got to decide who our next president was. Clearly, the certified vote results had Bush the winner. Gore could have only won if enough votes for Bush had been tossed out to make Gore the winner. In other words, voters would have been disenfranchised in the process of changing the outcome. I happen to think the U.S. Supreme Court's decision was poorly written, but I think the result was right. Unfortunately, the justices gave the appearance their political affiliation had more to do with their decision than the actual merits of the case.

Independent Voter said...

Gary

Why do voters need to declare a political party prior to voting in the Indiana Primary Elections?

I am an independent voter and choose to vote for the person and not the Party. Other states have open primary elections.

Is it not unconstitutional to reveal which way a citizen is going vote?

Can you cite the law that states I must declare a political party in order to vote?

Advance Indiana said...

You don't have to declare a party affiliation prior to the primary election. Indiana has a closed primary system, which means that in a primary, you can only vote for Republican or Democratic candidates, you can't vote for both. That requires you to choose between a Republican or Democratic ballot if you vote in a primary. You can switch back and forth between parties from election to election. In the general election, you make no declaration as to your party affiliation.

indyernie said...

"This is not about voter fraud...it is about GOP vote suppression."

BLA-BLA-BLA, utter nonsense.
It’s about fair honest voting. One vote per person.
The democrat sponsored intercity “vote until you drop program” is finished.

Anonymous said...

indyernie said...
"This is not about voter fraud...it is about GOP vote suppression."

BLA-BLA-BLA, utter nonsense.
It’s about fair honest voting. One vote per person.
The democrat sponsored intercity “vote until you drop program” is finished.

He hit the nail on the head.

Lets take politics out of it and do what's right. One person-one vote. Common sense must prevail at some point and the only way to get one vote per person is to prove who you are when you register and when you vote.

Pretty simple really.

tjefferson said...

Absolutely excellent post, Gary.

If voter ID requirements "supress" a single vote, it is entirely within the ability of the voter to remedy that situation. If one is too lazy or indifferent to meet the requirement (which Indiana has made extremely easy to do), then I presume said person is too lazy or indifferent to make careful judgements about the election. The right to vote comes with responsibilities, and if one of those is to obtain an easily-obtainable identification card, that's not too much to expect for the privilege of living in a republic. The opponents of this law depricate those responsibilities. Freedom isn't free.

Independent Voter said...

Gary

What law designated the two major party system in Indiana only and does not allow for independents to be selected?

Is it unconstitutional?