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.